TimesLines, Inc v. Facebook, Inc.

Filing 10

MEMORANDUM by Facebook, Inc. in Opposition to motion for temporary restraining order 7 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Monagan, Thomas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMELINES, INC.,
Plaintiff,
Civil Action No. 11-cv-06867

v.

Judge John W. Darrah

FACEBOOK, INC.,
Defendant.

FACEBOOK, INC.’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR
TEMPORARY RESTRAINING ORDER
Despite having knowledge of the facts giving rise to its claims for nearly a week, plaintiff
Timelines, Inc. (“Plaintiff”) seeks an ex parte temporary restraining order against defendant
Facebook, Inc. (“Facebook”) on fewer than 24 hours notice to Facebook. Facebook opposes
Plaintiff’s application for a temporary restraining order, and respectfully requests that the Court
deny the application and/or set this matter for a full evidentiary hearing.
Facebook’s preliminary grounds for opposition, based solely on the allegations of
Plaintiff’s complaint, are as follows:
1. Plaintiff is unlikely to succeed on the merits because Facebook is using “timeline”
generically, and so is Plaintiff. Facebook uses the term “timeline” not as a trademark, but as a
generic term. The generally accepted definition of “timeline” is as follows:
A timeline is a way of displaying a list of events in chronological oder,
sometimes described as a project artifact. It is typically a graphic design
showing a long bar labeled with dates alongside itself and (usually) events
labeled on points where they would have happened.”
See

http://en.wikipedia.org/wiki/Timeline.

See

also

http://dictionary.reference.com/

browse/time+line (“a linear representation of important events in the order in which they
occurred.”). Facebook uses “timeline” precisely as the term is defined; i.e., to display a list of a

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user’s events in chronological order, using a long vertical bar labeled with dates and events on
each side. See Exhibit A; Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th
Cir. 1986) (a generic term is “one that is commonly used as the name of a kind of goods.”).
Plaintiff likewise uses the term “timeline” generically to describe linear representations of
important events. See Exhibit B.
Trademark law does not protect generic terms when they are used to designate or
describe a product rather than serving as an indicator of source of the product. Bliss Salon Day
Spa v. Bliss World LLC, 268 F. 3d 494, 497 (7th Cir. 2001). Otherwise, the owner of a generic
mark would be able to prevent competitors from informing consumers about the basic attributes
of the competitor’s products. Balu Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 610 (7th
Cir. 1986). This is precisely what the Plaintiff is seeking to do in this case. Plaintiff is therefore
unlikely to succeed in establishing protectable rights in a trademark, a required element of
trademark infringement. See 15 U.S.C. § 1125(a).
2. A TRO Will Not Preserve the Status Quo: Facebook’s product has already launched
and more than a million users have enabled the timeline feature. The launch has already
garnered widespread media attention by countless global media outlets and blogs, including
CNN, the New York Times, TechCrunch and Yahoo!. An injunction cannot prevent a launch
that has already happened.
3. A TRO Will Irreparably Damage Facebook: An injunction would require Facebook
to roll back a feature that is already in use by more than a million users, and halt significant work
that has been in progress for months. Complying with such an injunction would create an
incalculable cost for Facebook, and significantly damage Facebook’s users and goodwill.

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4. There is No Emergency: Facebook’s product launched more than a week ago, on
September 22, and Plaintiff admits to having learned about it on September 23. Nonetheless,
Plaintiff inexplicably waited at least a week to file its complaint and request a TRO.
5. Plaintiff Failed to Provide Proper Notice: Despite having been aware of Facebook’s
timeline product for at least a week, Plaintiff first notified Facebook of its intent to seek a TRO
in a letter sent fewer than 24 hours before Plaintiff planned to seek extraordinary relief. Having
already waited a week, Facebook requested that Plaintiff delay its application by one more
business day to allow Facebook’s California counsel to travel to and participate in any hearing.
Plaintiff refused. Plaintiff also refused to discuss the merits of the application in advance of a
TRO hearing, and has not provided Facebook with any written motion for Facebook to oppose.
Facebook respectfully requests that the Application be denied.

Should the Court

determine Plaintiff’s request is entitled to further consideration, Facebook respectfully requests
the opportunity to present its position through full briefing and an evidentiary hearing.

Respectfully submitted,
Dated: September 30, 2011
/s/ Tom Monagan
Steven D. McCormick, P.C. (IL Bar No. 1824260)
David K. Callahan, P.C. (IL Bar No. 6206671)
Tom M. Monagan (IL Bar No. 6278060)
KIRKLAND & ELLIS LLP
300 N. LaSalle Street
Chicago, IL 60654
Phone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant, Facebook, Inc.
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Michael G. Rhodes
Jeffrey T. Norberg
Gavin L. Charlston
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Phone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant, Facebook, Inc.

CERTIFICATE OF SERVICE
I, Thomas M. Monagan, III, an attorney, hereby certify that I served true and correct
copies of FACEBOOK, INC.’S OPPOSITION TO PLAINTIFF’S EX PARTE
APPLICATION FOR TEMPORARY RESTRAINING ORDER upon opposing counsel by
hand delivery on this 30th day of September, 2011.

/s/ Tom Monagan

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