United Naturals, inc. v. LXR Biotech, LLC et al

Filing 148

ORDER granting 142 pltf's Motion reduce bond amount. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED NATURALS INC., LIGHTHOUSE
ENTERPRISES INC. and VIVA
BOTANICALS INC,

Case No. 15-14299
Honorable Nancy G. Edmunds

Plaintiffs,
v.
LXR BIOTECH, LLC, CAPITAL SALES
COMPANY, CAPITAL SALES
DISTRIBUTING, LLC, VIVA ZEN SALES,
LLC, VIVA ZEN DISTRIBUTING, LLC, and
ANDREW H. KRAUSE,
Defendants.
/
ORDER GRANTING PLAINTIFFS’ MOTION FOR A REDUCTION IN BOND AMOUNT
[142]
This matter comes before the Court on Plaintiffs’ motion for a reduction in bond
amount. For the reasons stated herein, Plaintiffs’ motion is GRANTED and it is hereby
ORDERED that the bond be reduced to $75,000.
On April 8, 2016, the Court held a hearing on Plaintiffs’ motion for a preliminary
injunction. At the hearing, the Court determined that under the traditional eight-factor Frisch
analysis, Defendants’ use of the VIVAZEN mark clearly causes a likelihood of confusion
among consumers. See Frisch’s Restaurants, Inc. v. Elby’s Big Boy of Steubenville, Inc.,
670 F.2d 642, 648 (6th Cir. 1982). That is, as the Court stated, there is no question that
Defendants are “stomping on” Plaintiffs’ mark by using a nearly identical name and label
on their herbal supplement beverages. The remaining question, then, is whether
Defendants can show they are entitled to use the VIVAZEN mark by through one or more

of their affirmative defenses. Before the Court can rule on the preliminary injunction motion,
however, expedited discovery and an evidentiary hearing on the affirmative defenses are
necessary. Accordingly, the Court scheduled an evidentiary hearing for August 9, 2016 and
extended the temporary restraining order in the interim. (Dkt. 133.) In addition, the Court
ordered the initial bond amount of $75,000 to be increased to $800,000. (Id.)
The day before the increased bond was due, Plaintiffs filed the instant motion advising
the Court of their inability to post or otherwise obtain a commercial bond in the amount due.
(Dkt. 142.) The Sixth Circuit has recognized that a district court has “broad discretion in
setting the bond amount.” Static Control Components, Inc. v. Lexmark Int’l, Inc. 697 F.3d
387, 400 (6th Cir. 2012). A court may consider various factors when determining the
appropriate bond amount, including the likelihood of success on the merits as well as
Plaintiffs’ financial condition. Cole v. ArvinMeritor, Inc., 516 F. Supp. 2d 850 (E.D. Mich.
2005). Based on the Court’s finding that Defendants’ use of the VIVAZEN mark is likely to
cause consumer confusion, as well as the newly presented evidence regarding Plaintiffs’
financial condition, the Court in its discretion GRANTS Plaintiffs’ request to reduce the bond
to $75,000.
SO ORDERED.
S/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: May 12, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record
on May 12, 2016, by electronic and/or ordinary mail.
S/Carol J. Bethel
Case Manager
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