Tempur Sealy International, Inc. et al v. WonderGel, LLC et al
Filing
49
MEMORANDUM OPINION & ORDER: DENYING dfts' 42 MOTION to Stay re 41 Memorandum Opinion & Order, MOTION for Extension of Time & 43 MOTION to Clarify. Signed by Judge Joseph M. Hood on 4/11/16.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
TEMPUR SEALY
INC., et al.
INTERNATIONAL, )
)
Civil Action No.
)
Plaintiffs,
5:16-CV-83-JMH
)
)
v.
)
) MEMORANDUM OPINION AND ORDER
WONDERGEL, LLC, et al.,
)
)
Defendants.
)
****
****
****
****
This matter is before the Court upon the Motion to Stay
Pending Appeal and Additional Time to Comply with Injunction
and
the
Defendants
Motion
for
WonderGel,
Clarification
LLC
and
and/or
EdiZONE,
Modification
LLC
of
(hereinafter,
collectively, “Purple”) [DE 42, Response at 45 (Plaintiffs are
referred to collectively in this order as “Tempur Sealy”.),
Reply at 48; DE 43, Response at 46, Reply at 47.]
Under Federal Rule of Civil Procedure 62(c), this Court
may grant a stay pending an interlocutory appeal1 in cases
involving injunctions and suspend, modify, restore, or grant
1
It is not lost on the Court that no notice of appeal has been filed at this
time, and that Defendants’ request is technically premature. Nonetheless,
the Court considers this matter under the framework established for such
requests for relief under Fed. R. Civ. P. 62.
1
an injunction on terms for bond or other terms that secure the
opposing party’s rights.
warranted,
factors:
stay
district
(1)
will
the
“To determine whether a stay is
courts
rely
likelihood
prevail
on
the
on
that
the
the
merits
of
following
party
the
four
seeking
the
appeal; (2) the
likelihood that the moving party will be irreparably harmed
absent a stay; (3) the prospect
harmed
if
public
interest
No.
23,
the
court
in
grants
that
the
others
stay;
granting the stay.”
Users,
(citing
Inc.
v.
Mich.
Coalition
Griepentrog,
945
of
F.2d
be
(4)
and
the
Miller v.
CV 15-44-DLB, 2015 WL 9460311, at *1 (E.D.
2015)
will
Ky.
Radioactive
150,
153
Davis,
Sept.
Material
(6th
Cir.
1991)).
Having considered the matter, the Court concludes that
Purple fails to show that it has a substantial likelihood of
succeeding on appeal, notwithstanding that it “believe[s]” it
will “likely” be successful with respect to the arguments that
this court has already rejected with respect to its objection
to this Court’s rulings on the merits of Plaintiff’s request
for
preliminary
injunction
and
Defendants’
arguments
concerning its first-to-file status in another jurisdiction
and its concerns about this Court’s jurisdiction to consider
2
this matter in the first place.
Absent something more than
Purple’s disagreement with the Court’s decision to reject the
arguments in favor of Purple’s preferred resolution of the
matter, there is no support for this factor.
Nor is the Court persuaded that Purple will experience
irreparable harm or injury to the extent claimed in the Motion
as
a
result
of
the
preliminary
injunction.
The
Court’s
injunction does not limit Purple’s ability to advertise its
products
and
does
not,
for
example,
decimate
Purple’s
marketing platform nor require it to stop marketing efforts
entirely nor terminate the sale of its product.
As the Court
has already stated, customers still have complete access to
Purple’s
products.
Even
if
removing
the
offending
video
reduces Purple’s sales by fifty percent, as it estimates, such
monetary harm is not irreparable harm.
It is an economic
injury that could be resolved by an award of money and is,
thus, distinct from the damage to the reputation of Tempur
Sealy and its investment in its trade dress which would be
permitted
if
the
advertisement
remained
available
to
the
public.
Neither is the Court is not persuaded that the decreased
viral video momentum, loss of goodwill of business partners,
3
and
disruption
of
its
relationship
with
its
vendors,
suppliers, and employees (which the Court presumes that Purple
is indicating are tied to the loss of sales and, thus, its
potential to stay in business) with which Purple is concerned
necessitate
a
stay,
either.
Certainly,
the
disruption
of
relationships with vendors, suppliers, and employees – what
one might call business goodwill – can constitute irreparable
harm.
But, in this instance, the loss is mitigated because
the Court has already considered that Purple advertises only
using social media via the Internet and has indicated that it
may still do so.
In fact, this is central to the Purple’s
Motion for Clarification in which it explains that, while it
can now (or will very soon be able to) advertise using other
videos
which
are
not
as
funny
as
the
enjoined
Goldilocks
video, it has observed a 36% drop in average daily visits
since the video was taken down over the average daily visits
during the preceding three weeks.2
Naturally,
believes
to
be
Purple
a
wants
successful
to
take
advantage
advertising
2
of
campaign,
what
it
and
the
The Court is curious whether the drop off in daily
visits could also be attributed, in part or in whole, to the
natural behavior of a fickle Internet audience that has
already moved on to the next cat video, mattress ad, or link
to the one old trick that will help anyone lose belly fat.
4
Court
appreciates
that
it
wishes
to
continue
using
the
advertising that brought so much traffic to its virtual door,
but Court is not willing to stay its decision so that Purple
may do so at the expense of Plaintiff. Like all preliminary
injunctions and questions regarding a stay, the court is faced
with balancing the harm that might befall one party or the
other from too much or too little injunctive relief.
instance,
the
appropriate
injunction
Court
balance
at
this
concludes
and
that
declines
time.3
to
Defendants
it
has
stay
or
should
In this
reached
the
modify
the
seek
further
relief, if desired, from the Court of Appeals under Fed. R.
App. P. 8(a)(2) at the appropriate time.
The
Court
also
denies
an
extension
of
time
in
which
Purple may delay complying with the injunction in order to
explore ways to preserve “views” and “likes” for the original
video, to be cached in some way to preserve their existence
should Defendants succeed on appeal.
By this date, Defendants
have had several days, while the motion has remained pending,
to explore those options.
No further time is necessary.
3
Neither party has addressed the prospect that others will
be harmed if the court grants the stay or the public
interest in granting the stay. The Court concludes that
these are factors that weigh neither in favor of one nor the
other party in this instance.
5
Finally, the Court willing is not willing to bless the
use of the proposed modified Goldilocks video – which obscures
the
type
product
of
–
mattress
over
consideration.
and
direct
Plaintiff’s
reference
objection
to
Plaintiff’s
without
further
Should Defendants wish to pursue that relief,
they may file a new motion along with a copy of that video
(video to be filed under seal).
For now, that relief is
denied.
Accordingly,
the
Motion
to
Stay
Pending
Appeal
and
Additional Time to Comply with Injunction [DE 42] and Motion
for Clarification and/or Modification [DE 43] are DENIED.
This the 11th day of April, 2016.
6
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