Go Daddy Operating Company, LLC v. Ghaznavi et al

Filing 27

ORDER by Judge Hamilton denying 24 Motion for TRO. (pjhlc1, COURT STAFF) (Filed on 12/20/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GO DADDY OPERATING COMPANY,
LLC,

Case No. 17-cv-6545-PJH

Plaintiff,
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ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER

v.
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USMAN GHAZNAVI, et al.,

United States District Court
Northern District of California

Defendants.
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The motion of plaintiff Go Daddy Operating Company, LLC (“GoDaddy”), for a

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temporary restraining order against defendants Usman Ghaznavi a/k/a Usman Anis

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(“Anis”), Salman Ghaznavi a/k/a Salman Anis (“Ghaznavi”), and Silicon Valley Graphic,

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LLC d/b/a Silicon Valley Graphics (“SVG”) came on for hearing before this court on

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December 20, 2017. GoDaddy appeared by its counsel Jeffrey M. Monhait, and

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defendants appeared by their counsel Brenda A. Prackup. Having read the parties’

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papers and carefully considered their arguments and the relevant legal authority, the

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court hereby DENIES the motion as follows for the reasons stated at the hearing.

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GoDaddy filed the complaint in the above-entitled action on November 10, 2017,

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asserting violations of §§ 32 and 43 of the Lanham Act, 15 U.S.C. § 1114 (trademark

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infringement), § 1125(a) (false designation of origin, unfair competition, false advertising),

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§ 1125(c) (trademark dilution), and § 1125(d) (cybersquatting); plus state-law and

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common law claims of unfair competition, false advertising, trademark infringement, and

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intentional interference with prospective economic advantage; and they also seek an

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accounting.

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On November 29, 2017, GoDaddy filed certificates of service showing service of

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the summons and complaint on each of the defendants at 45333 Fremont Blvd., Ste. 5, in

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Fremont, California. The proofs of service show (1) personal service on Anis on

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November 14, 2017; (2) substituted service on SVG, on November 14, 2017, at the

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address of its registered agent, by leaving papers with Anis ("Employee/Owner") followed

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by service by mail; and (3) substituted service on Ghaznavi, by leaving papers with Lo

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Ann Do, graphic designer, on November 17, 2017, following attempts on three

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successive days to personally serve Ghaznavi. Defendants have entered an appearance

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through counsel, although counsel has indicated that Ghaznavi intends to contest
personal jurisdiction and sufficiency of service of process. On December 14, 2017,

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United States District Court
Northern District of California

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GoDaddy filed the present motion for a TRO and order to show cause re preliminary

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injunction.

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Federal Rule of Civil Procedure 65 provides federal courts with the authority to

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issue temporary restraining orders and preliminary injunctions. Fed. R. Civ. P. 65(a), (b).

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An injunction is a matter of equitable discretion and is “an extraordinary remedy that may

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only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter

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v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf v.

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Geren, 553 U.S. 674, 689-90 (2008). Requests for temporary restraining orders are

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governed by the same general legal general standards that govern the issuance of a

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preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345,

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1347 n.2 (1977); Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d

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832, 839 n. 7 (9th Cir. 2001).

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Generally, the purpose of a preliminary injunction is to preserve the status quo and

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the rights of the parties until a final judgment on the merits can be rendered. Granny

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Goose Foods, Inc. v. Bhd. of Teamsters and Auto Truck Drivers, 415 U.S. 423, 439

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(1974); see U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010). A

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preliminary injunction “should not be granted unless the movant, by a clear showing,

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carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
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curiam) (citation omitted).
A plaintiff seeking a preliminary injunction must establish that he is likely to

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succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest. Winter, 555 U.S. at 20. Alternatively, the plaintiff may demonstrate

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that the likelihood of success is such that “serious questions going to the merits were

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raised and that the balance of hardships tips sharply in the plaintiff's favor,” so long as

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the other two elements of the Winter test are met. Alliance for Wild Rockies v. Cottrell,

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632 F.3d 1127, 1131-32 (9th Cir. 2011).

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GoDaddy contends that it is likely to prevail on its federal claims and also on its

United States District Court
Northern District of California

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claim under B&P § 17200; and also that it has demonstrated irreparable harm. In arguing

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likelihood of success, GoDaddy focuses on the claim for trademark infringement under

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the Lanham Act. To prevail on a claim of trademark infringement under the Lanham Act,

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a plaintiff must establish that it has a protectable ownership interest in the mark, and that

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that the defendant’s use of the mark is likely to cause consumer confusion. See Network

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Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011).

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GoDaddy asserts that it has satisfied both these elements.

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GoDaddy also contends that it has demonstrated that it will suffer irreparable harm

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in the absence of injunctive relief, based on allegations of loss of business and damage

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to goodwill, and asserts further that defendants are “judgment proof” and that a potential

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award of money damages against them is not likely to deter their conduct.

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It is undisputed that GoDaddy has a protectable interest in the GoDaddy Marks,

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and that unauthorized use of the Marks by persons or entities other than GoDaddy would

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be likely to cause consumer confusion. However, the court finds that GoDaddy has failed

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to make a clear showing that it is entitled to the extraordinary remedy of temporary

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injunctive relief. Primarily, GoDaddy has not made a sufficient showing that any

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particular defendant is responsible for the alleged infringement in this case. In addition,

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GoDaddy’s delay in filing the motion, while not extreme, does tend to negate the
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possibility of any immediate threat of irreparable harm.
The court finds that the interests of justice would be better served by a fully-briefed

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motion for injunctive relief, rather than the present hastily-assembled motion for a

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temporary restraining order, heard on shortened time. As agreed at the hearing, the

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parties will meet and confer, and stipulate to a briefing and hearing schedule for the

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motion for preliminary injunction. In addition, they may wish to first address the issue of

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service and personal jurisdiction as to Ghaznavi.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: December 20, 2017
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PHYLLIS J. HAMILTON
United States District Judge

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