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

Filing 18

PRELIMINARY INJUNCTION AND SEIZURE ORDER to enjoin and to restrain the defendants from manufacturing, selling or distributing merchandise bearing the federally registered trademarks, service marks, likenesses, logos, or other indicia of the Group KISS (collectively, the Groups Trademarks), by Judge Wiley Y. Daniel on 7/1/2014. (evana, )

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.

PRELIMINARY INJUNCTION AND SEIZURE ORDER

Plaintiff Epic Rights, Inc. ("Plaintiff") having moved for a Preliminary Injunction
and Seizure Order to enjoin and to restrain the defendants from manufacturing, selling or
distributing merchandise bearing the federally registered trademarks, service marks,
likenesses, logos, or other indicia of the Group “KISS” (collectively, the “Group’s
Trademarks”) and to order the seizure and impounding of such merchandise; and service
having been effected upon certain defendants at /or near the Group’s concerts which have
previously occurred; and Plaintiff's application being heard hearing before the Honorable
Wiley Y. Daniel on July 1, 2014, at the US Courthouse for the District of Colorado, and
Plaintiff having appeared by its attorneys, and there having been no other appearances;
Now, on presentation and consideration of Plaintiff's application for a preliminary
injunction and order of seizure, the declaration in support thereof, the relevant law set
forth in the Memorandum of Points and Authorities, and all other pleadings and prior
proceedings heretofore had herein in this matter, the Court hereby finds:

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1.

By reason of the substantial and continuous use of the Group’s

Trademarks in connection with the Group’s work, said marks have acquired meanings
identified with the Group and with products and services associated with them;
2.

The served defendants, and those in active concert or participation with

such defendants, have infringed upon Plaintiff's rights in the Group’s Trademarks, and
have committed acts of unfair competition against Plaintiff herein by manufacturing,
distributing, offering for sale and selling merchandise bearing any or all of the Group’s
Trademarks at or near the sites of the Group’s concerts, without having obtained a license
or any other authorization to do so, as alleged in the complaint;
3.

The defendants’ acts, and those in active concert or participation with

them, constitute a violation of the United States Trademark Act in that they: a) involve
goods or services; b) are activities which affect interstate commerce; and c) infringe the
trademarks and/or bear a false designation of the source or origin of such goods or are
likely to cause confusion, mistake or deception as to the affiliation, connection,
association, sponsorship or approval of Plaintiff or the Group with respect to such goods;
4.

Defendants, and those in active concert or participation with them, will

continue to sell such unauthorized merchandise unless enjoined by the Court; and
5.

Copies of this Court's Temporary Restraining Order; Seizure Order; and

Order to Show Why A Preliminary Injunction and Seizure Order Should Not Issue and
the Complaint filed in support of Plaintiff's application in this case have been served
upon the defendants and unauthorized, merchandise has been seized from the defendants;

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NOW, THEREFORE, IT IS HEREBY
ORDERED, that the defendants, their agents, servants, employees, attorneys,
successors, and assigns, and all persons, firms, and corporations acting in active concert
or participation with said defendants, are enjoined and restrained from:
(A)

Using any or all of the Group’s Trademarks, in connection with the sale,

offering for sale, distribution, and/or advertising of any clothing or other merchandise;
(B)

Manufacturing, distributing, selling, and/or holding for sale any clothing

or other merchandise which contains or otherwise uses any or all of the Group’s
Trademarks; or
( c)

Aiding, abetting, inducing, or encouraging another to perform any of the

acts enjoined herein.
IT IS FURTHER ORDERED, that the U.S. Marshal for this district or for any
district in which Plaintiff seeks to enforce this Order in the United States, the state police,
local police, local deputy sheriffs or off-duty officers of the same, and any person acting
under their supervision (collectively "Process Servers") are hereby similarly authorized to
seize and impound any and all unauthorized merchandise bearing any or all of the
Group’s Trademarks, namely, the federally registered trademarks, service marks,
likenesses, logos, or other indicia of the Group KISS, including the design

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or any colorable imitations or variations thereof, or associated marks which defendants or
their agents, employees or representatives attempt to sell or are holding for sale in the
vicinity of any of the Group’s concerts from six (6) hours before to six (6) hours after any
performance of the Group within a ten (10) mile vicinity of the halls, stadiums or arenas
at which the Group shall be performing or elsewhere where such merchandise is being
sold, held for sale or is otherwise found, including in any carton, bag, vehicle, or
container in which the merchandise is transported or stored.

All clothing, jewelry,

photographs, posters and other merchandise bearing any or all of the Group’s
Trademarks, or any colorable imitations or variations thereof, sold and held for sale in the
vicinity of the arenas or other venues at which the Group shall be performing, or
elsewhere where such merchandise is being sold, held for sale or otherwise found, shall
be deemed to be merchandise subject to the seizure provisions of this Order.
IT IS FURTHER ORDERED, that service of a copy of this Order, together with
the Summons and Complaint, be made upon defendants by the Process Servers at the
time the seizure provided for is effected and that such service shall be deemed good and
sufficient.
IT IS FURTHER ORDERED, that each and every defendant served with a copy
of this order 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, videotape or otherwise identify the defendant.
IT IS FURTHER ORDERED, that the Process Server shall offer a receipt to
each person from whom goods are seized.

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IT IS FURTHER ORDERED, that any Defendant who is hereafter served with
a copy of this Order who objects to the provisions herein may submit his or her
objections to this Court or otherwise move for relief from this Court within ten (10) days
of the date of seizure according to the Federal Rules of Civil Procedure, but no such
objection shall serve to suspend this Order or stay the terms hereof unless otherwise
ordered by this Court.
IT IS FURTHER ORDERED, that all unauthorized items heretofore or
hereafter seized in this action be delivered up to the Plaintiff or the persons designated
above, pending final disposition of this matter.
IT IS FURTHER ORDERED, that the bond deposited with the Clerk of this
Court to secure payment of costs incurred in enforcing the provisions of the temporary
restraining order and any damages sustained by any party who is found to have been
wrongfully enjoined thereby is continued until final disposition of this matter.
IT IS SO ORDERED.
Dated: July 1, 2014
BY THE COURT:

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

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