Epic Rights, Inc. v. Does 1-100 et al

Filing 12

ORDER. Temporary Restraining Order; Seizure Order to Show Cause regarding Why a Preliminary Injunction and Seizure Order Should Not Issue. ORDERED that Plaintiffs Ex Parte Application for: a Temporary Restraining Order; a Seizure Order; and an Order to Show Cause Regarding Why a Preliminary Injunction and Seizure Order Should Not Issue (ECF No. 6) is GRANTED. Show Cause Hearing set for 7/1/2014 11:00 AM before Judge Wiley Y. Daniel. ORDERED that pursuant to F.R.C.P. Rule 65 (b) (4), any Defend ant can apply tothis Court to dissolve or modify this Order on two (2) days notice or shorter notice as this Court may allow, but no such application shall serve to suspend this Order or stay its terms unless otherwise ordered by this Court by Judge Wiley Y. Daniel on 06/19/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 14-cv-01688-WYD
EPIC RIGHTS, INC.,
Plaintiff,
v.
JOHN DOES 1-100;
JANE DOES 1-100; and
XYZ COMPANY,
Defendants.

TEMPORARY RESTRAINING ORDER; SEIZURE ORDER; AND ORDER TO SHOW
CAUSE REGARDING WHY A PRELIMINARY INJUNCTION AND SEIZURE ORDER
SHOULD NOT ISSUE

Based upon the complaint, memorandum of points and authorities, the
Declaration of Roger Brattin and the Certificate of Counsel and all other pleadings and
proceedings heretofore had herein and good cause being shown, it is hereby
ORDERED that Plaintiff’s Ex Parte Application for: a Temporary Restraining
Order; a Seizure Order; and an Order to Show Cause Regarding Why a Preliminary
Injunction and Seizure Order Should Not Issue (ECF No. 6) is GRANTED as set forth
below. Accordingly, it is
ORDERED that Defendants, John Does 1-100, Jane Does 1-100 and XYZ
Company their true identities being unknown (collectively "Defendants"), show cause
before the Honorable Wiley Y. Daniel, United States District Court Judge, in Courtroom
A 1002 of the United States District Court for the District of Colorado, located at 901

19th Street, Denver, Colorado at 11:00 a.m. on Tuesday, July 1, 2014, or as soon
thereafter as counsel can be heard, why an order should not be entered granting to
Plaintiff, Epic Rights, Inc. a preliminary injunction and order of seizure to enjoin the
Defendants from manufacturing, distributing, selling or holding for sale, any clothing,
jewelry, photographs, posters and other merchandise (collectively the "Infringing
Merchandise") bearing the trademarks, service marks, likenesses, logos and other
indicia of the Group known as "KISS" (collectively the "Group's Trademarks").
AND IT APPEARING TO THE COURT that Defendants are about to sell and
distribute the Infringing Merchandise bearing any or all of the Group's Trademarks as
set forth in Plaintiff's complaint, and will continue to carry out such acts unless
restrained by order of the Court;
AND IT APPEARING TO THE COURT that immediate and irreparable injury, loss
or damage will result to the Plaintiff before Defendants can be identified and given
notice and their attorneys can be heard in opposition to the granting of the temporary
restraining order, in that the Defendants are preparing to manufacture, distribute and
sell Infringing Merchandise as set forth in the Plaintiff's complaint, and that, unless said
Defendants are enjoined from said manufacture, distribution, and sale, the Plaintiff will
suffer immediate and irreparable injury and harm in the form of a loss of income,
lessening and dilution of the value of the Group's Trademarks, interference with
Plaintiff's ability to exploit, market and license its merchandising rights, confusion in the
marketplace as to the duly authorized source of merchandise depicting the Group's
Trademarks, and impairment of the good will Plaintiff and its licensors have in the said
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Group's Trademarks. It is further
ORDERED that pending hearing and determination of this application, or the
expiration of fourteen (14) court days from the date hereof, the Defendants, their
agents, servants, employees, attorneys, successors and assigns and all persons, firms
and corporations acting in concert with them, and each of them, be and hereby are
temporarily restrained from manufacturing, distributing and selling Infringing
Merchandise bearing the any or all of the Group's Trademarks. It is further
ORDERED that pursuant to 1116 (a), the United States Marshal, for this District
or any district in which Plaintiff enforces this order, the state police, local police or local
deputy sheriffs, off duty officers of the same, and any person acting under their
supervision, are hereby authorized to seize and impound any and all Infringing
Merchandise bearing any or all of the Group's Trademarks, namely of KISS, including
the design

which Defendants attempt to sell or are holding for sale, including any from any carton,
container, vehicle, or other means of carriage in which the Infringing Merchandise is
found from six (6) hours before to six (6) hours after any performance of the tour within
a ten (10) mile vicinity of the halls, stadiums or arenas at which said Tour shall be
performing, including but not limited to the Pepsi Center in Denver, Colorado on June
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25, 2014. It is further
ORDERED that this order be and is hereby conditioned upon Plaintiff's filing with
the Clerk of this Court an undertaking in the form of a surety bond, credit card payment,
check, or cash in the amount of $5,000.00 no later than Tuesday, June 24, 2014, to
secure the payment of such costs and damages not to exceed such sum as may be
suffered or sustained by any party who is found to be wrongfully restrained hereby. It is
further
ORDERED that this temporary restraining order is conditioned upon the Plaintiff's
advancing to the law enforcement officers such sum as is required by the same to cover
the fees for their said services, in the event Plaintiff seeks their services in this or any
other district. It is further
ORDERED that service of a copy of this order to show cause together with the
complaint upon which it is based, be made upon the Defendants by the United States
Marshal, state police, local police, or local deputy sheriffs, or off duty officers of the
same, and any person over the age of eighteen (18) years under their supervision, not a
party to this action selected for that purpose by the Plaintiff, at the time of the seizure
provided herein is effected and that such service shall be deemed good and sufficient.
It is further
ORDERED that the process server shall offer a receipt to each person from
whom Infringing Merchandise is seized and that the Plaintiff shall be deemed substitute
custodian for all Infringing Merchandise seized. It is further
ORDERED that each and every Defendant served with a copy of this order
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promptly, courteously and peaceably identify himself or herself to the aforementioned
process server and that the process server or agents for Plaintiff be allowed to
photograph, video tape or otherwise identify the Defendant. It is further
ORDERED that Defendants' responsive papers, if any, shall be filed with the
Clerk of this Court and served upon the attorneys for Plaintiff by delivering copies to its
counsel on or before Friday, June 27, 2014. Any reply shall be filed by the Plaintiff and
served upon each appearing Defendant or his/her counsel on or before Monday, June
30, 2014. Plaintiff is to provide copies of all other filed pleadings at the request of any
identified Defendant. It is further
ORDERED that pursuant to F.R.C.P. Rule 65 (b) (4), any Defendant can apply to
this Court to dissolve or modify this Order on two (2) days notice or shorter notice as
this Court may allow, but no such application shall serve to suspend this Order or stay
its terms unless otherwise ordered by this Court.
IT IS SO ORDERED.
Dated: June 19, 2014
BY THE COURT:

/s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE

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