Two Men and a Truck/International, Inc.

Filing 19

MEMORANDUM AND ORDER granting in part 8 Motion for Preliminary Injunction. Within ten (10) business days after entry of this Order, Defendant shall provide the Court with written certification of his compliance with the terms of this Order. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to defendant)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TWO MEN AND A
TRUCK/INTERNATIONAL, INC.,

CASE NO. 8:12CV340

Plaintiff,
vs.

MEMORANDUM
AND ORDER

ROBERT LEE THOMAS, individually and
d/b/a “TWO MEN AND TWO TRUCKS,”
Defendant.

This matter is before the Court on the Plaintiff’s Motion for Preliminary Injunction.
(Filing No. 8.) Plaintiff Two Men and a Truck/International, Inc., has filed a brief and
index of evidence in support of its Motion. (Filing Nos. 9, 10.) Defendant Robert Lee
Thomas, individually and d/b/a “Two Men and Two Trucks,” has not filed an opposition
to Plaintiff’s Motion, and the time for filing an opposition has expired. For the reasons
stated below, the Plaintiff’s Motion will be granted.
FACTUAL BACKGROUND1
I. The TWO MEN AND A TRUCK Mark
Plaintiff is the largest franchised local moving company in the United States. It is
a nationwide franchisor engaged in licensing the use of its service mark, TWO MEN
AND A TRUCK, and its moving-services operating system. Currently, there are over
180 licensed TWO MEN AND A TRUCK locations, located in thirty-two different states,
and over 1,300 moving trucks operating throughout the United States, that display the

1

The facts are derived from the Plaintiff’s statement of facts and Verified Complaint (Filing Nos.
1, 9). See NECivR 7.0.1(b)(1)(C) (“Failing to file an opposing brief is not considered a confession of a
motion but precludes the opposing party from contesting the moving party’s statement of facts.”)

TWO MEN AND A TRUCK mark. Each franchise is operated pursuant to a franchise
agreement under which Plaintiff imposes certain obligations and retains certain rights to
help ensure the protection of Plaintiff’s marks and the uniform quality of services its
franchisees provide. Two of its 180 licensed locations are located in Nebraska, one of
which is Two Men and a Truck/Omaha (the “Omaha Franchise”), which serves Omaha,
Nebraska, and its surrounding areas.
Since at least 1988, Plaintiff, itself or through its franchisees, has used it mark,
either alone or in combination with design elements, in connection with moving-related
services. Its use has been valid and continuous since the date of its first use. The
United States Patent and Trademark Office (“USPTO”) issued to Plaintiff, and Plaintiff
owns, two incontestable2 concurrent use trademark registrations for its TWO MEN AND
A TRUCK mark in standard characters: U.S. Trademark Reg. 2,020,083, issued on
December 3, 1996, and U.S. Trademark Reg. No. 3,006,814, issued on October 18,
2005 (collectively referred to as the “TWO MEN AND A TRUCK Mark”).
II. Defendant’s Use of the “Two Men and Two Trucks” Name and Mark
Defendant, is not, and never has been, a TWO MEN AND A TRUCK franchisee
or otherwise affiliated with Plaintiff.

Without Plaintiff’s authorization and despite

Plaintiff’s objections, Defendant has been using the name and mark “Two Men and Two
Trucks” in connection with his competing moving services business that offers services
identical to, and competitive with, the services Plaintiff and its Omaha Franchise offer.
Defendant advertises his services using the same means, including the Omaha,
Nebraska, telephone directory and the Internet, and targets the same customers and

2

Plaintiff states that “[a]ffidavits have been filed pursuant to Sections 8 and 15 of the Lanham
Act, 15 U.S.C. §§ 1058 and 1065 . . .” making the registrations “incontestable.” (Filing No. 1 at ¶¶10-11.)

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potential customers, including those in and around the Omaha metropolitan area, as
Plaintiff and the Omaha Franchise. For example, Defendant has listed “Two Men and
Two Trucks” in the 2012-2013 Omaha-area telephone directory in the business white
pages and in the yellow pages under “movers,” and maintains a website at
<www.twomenandtwotrucks.com>, has distributed fliers that utilize the name and mark
“Two Men and Two Trucks,” and the moving truck Defendant uses to perform services
bears the name and mark “Two Men and Two Trucks.”

Defendant was aware of

Plaintiff’s TWO MEN AND A TRUCK Mark and of Plaintiff’s preexisting senior rights in
that mark when Defendant first used the name and mark “Two Men and Two Trucks.”
Defendant’s unauthorized use of the mark “Two Men and Two Trucks” has
caused, is causing, and will continue to cause, harm to Plaintiff’s business, reputation,
and goodwill. For example, the Better Business Bureau has given Defendant’s “Two
Men and Two Trucks” moving services business an “F” rating on a scale of “A+” to “F.”
The Better Business Bureau’s review of Defendant’s moving services notes that
consumers have reported confusion over the similarity of the name of Defendant’s
company with the name of Plaintiff’s company, a “BBB” accredited business.
Furthermore, Defendant has been operating his business in Nebraska intrastate
commerce as a motor carrier without receiving authorization to do so from the Nebraska
Public Service Commission. As a result, on May 29, 2012, the Nebraska Public Service
Commission sent a “No Authority” letter to Defendant demanding that he immediately
cease his unauthorized operations. Defendant never responded to the “No Authority”
letter. On August 27, 2012, an official from the Nebraska Public Service Commission

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served Defendant with several citations for performing moving services without
insurance and without authorization from the State of Nebraska.
III. Reported Instances of Actual Confusion
A. David Jasper
In June 2012, David Jasper, an Omaha resident, was looking to hire the Omaha
Franchise to perform a local residential move.

He searched the Omaha telephone

directory and found an entry for “Two Men and Two Trucks.” He believed that entry was
for the Omaha Franchise. He called the telephone number associated with the “Two
Men and Two Trucks” listing, [phone], and the person who answered the phone
told Jasper that his move could be performed for a flat rate of $250. Jasper hired
Defendant to perform his move, believing it to be the Omaha Franchise.
Defendant’s movers were scheduled to arrive at Jasper’s residence by 9:00 a.m.,
on June 13, 2012, to perform the move.

Defendant’s movers had not arrived by

approximately 12:30 p.m., so Jasper called Defendant to inquire of the movers’
whereabouts.

The person who answered told Jasper that Defendant had forgotten

about his move, but that a crew would be at his residence shortly.
At approximately 2:30 p.m., Defendant’s movers arrived at Jasper’s residence.
They arrived in an old, relatively small truck bearing a small sign that read: “Two Men
and Two Trucks.” They did not bring with them dollies, moving blankets, plastic wrap,
or any other moving supplies. After completing the move, Defendant charged Jasper
$700. Defendant calculated the increased rate from its previous quote by charging Dr.
Jasper for two hours during which the movers were not performing moving services.

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The movers also lost, misplaced, or stole one of his end tables, a weight set, and
several paintings, and damaged several other items.
During Jasper’s move, the property manager of the condominium complex into
which Jasper was moving called the Omaha Franchise, under the belief that
Defendant’s movers were working for the Omaha Franchise, to complain about the
inferior moving services being provided to Jasper. In response to the complaints it
received from Jasper’s property manager, Lafayette Williams, the Omaha Franchise’s
moving consultant and quality control claims manager, drove to Jasper’s new
condominium complex and saw at least one of Defendant’s workers wearing a hat
bearing the TWO MEN AND A TRUCK Mark. While at the condominium complex,
Williams also took photos of Defendant’s truck and picked up fliers bearing the “Two
Men and Two Trucks” name.
B. Carol Jeppesen
In the summer of 2012, Carol Jeppesen sought to hire the Omaha Franchise to
perform a local residential move. She had been a customer of the Omaha Franchise in
connection with previous moves and was very satisfied with the services she received.
She searched the Omaha telephone directory and found an entry for “Two Men and
Two Trucks.” She believed the entry was for the Omaha Franchise, and called the
number associated with the listing, [phone]. When she called the number, she
spoke with someone who identified himself as “Robert.” Because she believed “Robert”
was a representative of the Omaha Franchise, she scheduled an appointment for
Defendant to come to her house and prepare an estimate. Because Defendant failed to
show up for the scheduled appointment, she called again, spoke to “Robert,” and

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rescheduled the appointment.

Defendant failed to show up for the rescheduled

appointment. Jeppesen called Defendant a third time, spoke to “Robert” again, and
rescheduled the appointment once more.

Defendant again failed to show up at

Jeppesen’s house to prepare an estimate.
On or about August 3, 2012, Jeppesen found what she believed to be an
alternate number for the Omaha Franchise. This number was in fact the actual number
for the Omaha Franchise, and an Omaha Franchise representative explained to
Jeppesen that “Two Men and Two Trucks” was not an authorized franchisee of, and
was not in any way associated or connected with, Plaintiff.
C. April Swingle
In August 2012, April Swingle, wanted to order moving boxes from the Omaha
Franchise. She was a previous customer of the Omaha Franchise and was satisfied
with the services she had received. She searched the Omaha telephone directory and
found an entry for “Two Men and Two Trucks.” She believed that entry was for the
Omaha Franchise. She called the telephone number associated with the “Two Men and
Two Trucks” entry, [phone].

Because she believed she called the Omaha

Franchise, she scheduled an appointment for Defendant to deliver moving boxes to her
mother’s house. Defendant did not show up for the appointment as scheduled.
Swingle eventually found what she believed to be an alternate phone number for
the Omaha Franchise. This number was in fact the actual number for the Omaha
Franchise.

When she called the Omaha Franchise, a representative explained to

Swingle that it did not have a record that she had booked it to deliver boxes and that

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“Two Men and Two Trucks” was not an authorized franchisee of, or in any way
associated, affiliated, or connected with, Plaintiff.
D. Gretchen Mackenzie
In August 2012, Gretchen Mackenzie, a blind woman, wanted to hire the Omaha
Franchise to perform a local residential move. She used the Omaha Franchise for a
previous move and had been satisfied with the services she received. Because she is
blind, she called information at the number “411” and asked the operator to forward her
to the “Two Men and a Truck” moving company.

Once connected, she asked the

individual who answered the phone if she was speaking with “Two Men and a Truck.”
The individual who answered the phone told Mackenzie that she was, and that his
company could perform her residential move, but that someone would need to visit her
home to prepare an estimate.
The individuals who showed up at Mackenzie’s home represented that they
worked for “Two Men and a Truck.” They also told Mackenzie that she could get a fiftypercent discount off the cost of her move if she paid up-front in cash, and that with the
discount, the cost of the move would be $275. Because she believed she was dealing
with the Omaha Franchise, she paid the $275 in cash to the individuals at her home.
Mackenzie scheduled her move to occur at 9:00 a.m. on August 27, 2012.
On August 27, 2012, the movers did not show up as scheduled. Friends who
were assisting Mackenzie with her move began trying to contact the movers to
When attempting to contact Mackenzie’s

determine why they had not shown up.

movers, Mackenzie’s friends called the Omaha Franchise.

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The Omaha Franchise

informed Mackenzie’s friends that it did not have a record that Mackenzie had
scheduled the Omaha Franchise to perform her move.
Eventually, Mackenzie and one of her friends talked to an individual representing
“Two Men and Two Trucks.”

The individual identified himself as “Robert.”

After

Mackenzie’s friend threatened to report his conduct to the relevant authorities and the
Better Business Bureau, “Robert” agreed to send movers to Mackenzie’s home to
perform the move. A few hours later, Defendant’s movers from arrived at Mackenzie’s
home and performed the move.
During the move, a Nebraska Public Service Commission official arrived and
served the movers with multiple citations, including citations for performing moving
services without insurance and without authority from the State of Nebraska.
Mackenzie learned from that Nebraska Public Service Commission official and from the
Omaha Franchise that the entity that she had hired to perform her move operated under
the name “Two Men and Two Trucks.”
IV. The Current Lawsuit
On September 21, 2012, Plaintiff filed its Complaint (Filing No. 1), asserting three
causes of action against the Defendant: (1) infringement of federally registered
trademarks under 15 U.S.C. § 1114; (2) federal unfair competition and false designation
of origin under 15 U.S.C. § 1125(a)(1)(A); and (3) common law unfair competition and
infringement.

In its Motion, the Plaintiff requests that the Defendant, and all other

persons acting for, with, by, through, or under authority from Defendant, or in concert or
participation with Defendant, be permanently enjoined from: (1) using the designation
“Two Men and Two Trucks,” the URL <www.twomenandtwotrucks.com>, and any other

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confusingly similar imitation of the TWO MEN AND A TRUCK Mark in connection with
Defendant’s business or services; and (2) using any mark, name, logo, or source
designation of any kind that is a reproduction, colorable imitation, copy, or simulation of
or confusingly similar to, or in any way similar to, the marks or logos of Plaintiff, or is
likely to cause mistake, deception, confusion, or public misunderstanding that
Defendant’s business or services are the business or services of Plaintiff, or are in any
way related to Plaintiff. (Filing No. 8.)
Plaintiff also asks that the Defendant be directed to: (1) remove all signage from
his vehicles and place of business that bear Plaintiff’s TWO MEN AND A TRUCK Mark
or any other confusingly similar mark, including the “Two Men and Two Trucks” mark;
and (2) cease using all advertising and promotional materials, stationary, envelopes,
business cards, invoices, fliers, websites, and similar material bearing Plaintiff’s TWO
MEN AND TWO TRUCKS Mark, or any other name that is confusingly similar to
Plaintiff’s TWO MEN AND A TRUCK Mark, including the “Two Men and Two Trucks”
mark. Finally, Plaintiff requests that Defendant be directed to surrender control of the
URL <www.twomenandtwotrucks.com> and the telephone number [phone], with
the Defendant bearing the cost of the assignment and ensuring that the assignment is
free of transfer fees, payments, or other encumbrances imposed by the domain registry,
the telephone company, or any other party relating to the assignment. (Id.)
STANDARD
A district court considers the four factors set forth in Dataphase Sys., Inc. v. C L
Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981), when deciding whether to issue a
preliminary injunction. Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 705 (8th

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Cir. 2011) (citing Dataphase, 640 F.2d at 114). Those factors are: “(1) the threat of
irreparable harm to the movant; (2) the state of balance between this harm and the
injury that granting the injunction will inflict on other parties litigant; (3) the probability
that movant will succeed on the merits; and (4) the public interest.” Dataphase, 640
F.2d at 114. “No single factor is determinative.” WWP, Inc. v. Wounded Warriors, Inc.,
566 F. Supp. 2d 970, 974 (D. Neb. 2008). The movant bears the burden of establishing
the propriety of the injunction. See Roudachevski, 648 F.3d at 705.3
DISCUSSION
I. Likelihood of Success on the Merits
To establish a claim for trademark infringement, whether it is brought under the
Lanham Act, §§ 1114 or 1125, or under Nebraska’s common law, 4 Plaintiff must show
“that it has ownership or rights in the trademark and that the defendant has used the
mark in connection with goods or services in a manner likely to cause consumer
confusion as to the source or sponsorship of the goods or services.” Cmty. of Christ
Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church, 634 F.3d
1005, 1009 (8th Cir. 2011).
A. Ownership Rights in the TWO MEN AND A TRUCK Mark
Plaintiff’s TWO MEN AND A TRUCK Mark has become “incontestable.”
Generally, “the registration of a trademark as incontestable is conclusive evidence of
the registrant's . . . ownership of the trademark . . .” Dakota Indus., Inc. v. Ever Best
Ltd., 28 F.3d 910, 912 (8th Cir. 1994); see also 15 U.S.C. §§ 1115(b), 1065. Therefore,
3

The Lanham Act authorizes a court to grant injunctive relief in cases of trademark infringement
and unfair competition. See 15 U.S.C. § 1116.
4

See Mut. of Omaha Ins. Co. v. Novak, 648 F. Supp. 905, 909 (D. Neb. 1986), aff'd, 836 F.2d
397 (8th Cir. 1987); Worldcare Ltd. Corp. v. World Ins. Co., No. 8:11CV99, 2011 WL 1770445, at *3 (D.
Neb. May 9, 2011) (citing Devon Park, 634 F.3d at 1008–09).

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Plaintiff has established a likelihood of success on its claim that it owns the TWO MEN
AND A TRUCK Mark.
B. Likelihood of Confusion
To determine if “a likelihood of confusion exists,” courts will consider six factors:
“‘(1) the strength of the trademark; (2) the similarity between the plaintiff's and
defendant's marks; (3) the competitive proximity of the parties' products; (4) the alleged
infringer's intent to confuse the public; (5) evidence of any actual confusion; and (6) the
degree of care reasonably expected of the plaintiff's potential customers.’”

B & B

Hardware, Inc. v. Hargis Indus., Inc., 569 F.3d 383, 389 (8th Cir. 2009) (quoting
Anheuser-Busch, Inc. v. Balducci Publ'ns, 28 F.3d 769, 774 (8th Cir.1994)). A review of
these factors indicates that Plaintiff has shown it is likely to establish that there is a
likelihood of confusion in this case.
1. Strength of the Owner’s Mark
“[A] ‘strong and distinctive trademark is entitled to greater protection than a weak
or commonplace one.’” Sensient Techs. Corp. v. SensoryEffects Flavor Co., 613 F.3d
754, 763 (8th Cir. 2010) (quoting Frosty Treats, Inc. v. Sony Entm’t Am. Inc., 426 F.3d
1001, 1008 (8th Cir. 2005)). A mark’s “[s]trength consists of both conceptual strength
and commercial strength.” George & Co. LLC v. Imagination Entm't Ltd., 575 F.3d 383,
393 (4th Cir. 2009); see also Worldcare, 2011 WL 1770445, at *4 (citing George & Co.,
575 F.3d at 393). The uncontested facts indicate Plaintiff is likely to show that its use of
the TWO MEN AND A TRUCK Mark is strong both conceptually and commercially.
First, as Plaintiff contends, the TWO MEN AND A TRUCK Mark seems to be
“suggestive;” it “requires some measure of imagination to reach a conclusion regarding

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the nature of the” services offered. Duluth News-Tribune, a Div. of Nw. Pub’ns, Inc. v.
Mesabi Publ’g Co., 84 F.3d 1093, 1096 (8th Cir. 1996). Therefore, Plaintiff is likely to
show that its TWO MEN AND A TRUCK Mark is conceptually strong. See Frosty Treats
Inc. v. Sony Computer Entm't Am. Inc., 426 F.3d 1001, 1005 (8th Cir. 2005)
(“Suggestive marks . . . are entitled to protection regardless of whether they have
acquired secondary meaning.”).5
Second, Plaintiff is the largest franchised local moving company in the United
States with over 180 locations, over 1,300 trucks operating throughout the United States
bear the TWO MEN AND A TRUCK Mark, and Plaintiff has continuously used its TWO
MEN AND A TRUCK Mark in connection with the services it offers since at least 1988.
Based on this use, Plaintiff is likely to show that its TWO MEN AND A TRUCK Mark is
commercially strong. See George & Co., 575 F.3d at 395 (stating that courts consider
factors such as “the plaintiff’s record of . . . success” and the “length and exclusivity of
the plaintiff’s use of the mark” to determine the commercial strength of a mark); see also
Worldcare, 2011 WL 1770445, at *5 (“WorldCare has demonstrated that it used the
WORLDCARE mark, uncontested, for nearly ten years. Based on this use, WorldCare is
likely to show that its use of the WORLDCARE is commercially strong . . .”).
2. Similarity and Competitive Proximity
“Similarity is based on an examination of [a] mark[ ] as a whole, including visual
impression and sound.” SquirtCo. v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir.

5

Even if the mark were deemed “descriptive,” because it “immediately conveys the nature or
function of the product,” Duluth News-Tribune, 84 F.3d at 1096, the mark has become “incontestable,”
and would still make likely that the mark is conceptually strong. See Aromatique, Inc. v. Gold Seal, Inc.,
28 F.3d 863, 869 (8th Cir. 1994) (“Registered marks . . . are presumed to be distinctive . . .”); see also
Duluth News-Tribune, 84 F.3d at 1096 (“A descriptive mark . . . is entitled to protection only if it has
become distinctive . . . ”).

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1980). Closely related products or services require “less similarity . . . to support a
finding of infringement.” Id.
The difference between the two marks here, “TWO MEN AND A TRUCK” and
“Two Men and Two Trucks,” appears minimal, and Plaintiff and Defendant offer identical
services to the same customer and potential customer base. Therefore, Plaintiff has
satisfied its burden of showing that it is likely to establish that Plaintiff’s and Defendant’s
marks are “similar” and that the services they offer are in direct competition.
3. Intent to Confuse
Under the “intent to confuse” factor, the question is “whether the alleged infringer
intended to pass off its goods as the trademark owner's goods.” Sensient, 613 F.3d at
766 (citing Frosty Treats, 426 F.3d at 1008). Putting aside the similarity between the
marks, the record reflects that while providing services, one of Defendant’s movers
wore a hat bearing the TWO MEN AND A TRUCK Mark. Furthermore, the record also
reflects that when customers called Defendant asking if they had reached the Omaha
Franchise, the individual who answered the phone represented that the customer had in
fact reached the Omaha Franchise. Based on these facts, Plaintiff has shown that it is
likely to establish the Defendant intended to cause the public to believe that it was
associated with Plaintiff.
4. Actual Confusion
The record reflects that at least four instances of direct, actual consumer
confusion occurred. Therefore, Plaintiff has shown it is likely actual confusion occurred.
See Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 602 (8th Cir.
1999) (“Although evidence of actual confusion is not necessary for a finding that a

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likelihood of confusion exists, it is perhaps the most effective way to prove a likelihood
of confusion.”).
5. Potential Customers’ Degree of Care
Due to the apparent similarity of the marks, intent to confuse the public, and
incidents of actual confusion, Plaintiff has shown that it is likely Defendant’s mark may
cause confusion despite the degree of care a consumer might exercise.

See

Worldcare, 2011 WL 1770445, at *8 (“In that narrow context, the competing iterations of
similar marks may cause confusion despite a consumer's degree of care.”).
6. Summary
Weighing the factors a Court considers when determining if there is a likelihood
of confusion, the Court finds that Plaintiff is likely to establish customer confusion
between the Plaintiff’s and Defendant’s marks.
II. Threat of Irreparable Harm
Because it appears likely that there have been actual incidents of confusion and
because Plaintiff has shown that it is likely to establish a likelihood of confusion, it has
also shown that a threat of irreparable harm is present. Coca-Cola Co. v. Purdy, 382
F.3d 774, 789 (8th Cir. 2004) (“A showing that confusion is likely supports a strong
presumption of irreparable harm.”); Gen. Mills, Inc. v. Kellogg Co., 824 F.2d 622, 625
(8th Cir. 1987) (“Since a trademark represents intangible assets such as reputation and
goodwill, a showing of irreparable injury can be satisfied if it appears that Kellogg can
demonstrate a likelihood of consumer confusion.”).

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III. Balance of Hardships
The Court finds that the balance of hardships weighs in favor of an injunction.
Absent an injunction, Plaintiff’s trademark may continue to be infringed, possibly
resulting in the Plaintiff suffering a loss of reputation and goodwill. On the other hand,
an injunction will only prevent Defendant from competing with Plaintiff by using a mark
that may cause consumers to believe they are actually doing business with Plaintiff.
IV. Public Interest
While the public places value on free competition,6 the public has an interest “‘in
avoiding consumer confusion.’”

Anheuser-Busch, 28 F.3d at 776.

As explained

previously, an injunction here would not prohibit Defendant from competing with
Plaintiff; it would only prohibit Defendant from using a mark likely to be confused with
Plaintiff’s TWO MEN AND A TRUCK Mark. Therefore, the “public interest” factor also
weighs in favor of an injunction.
CONCLUSION
Based on an analysis of the Dataphase factors, the Court finds that a preliminary
injunction is warranted.

Therefore, the Plaintiff’s Motion will be granted, in part.

Accordingly,
IT IS ORDERED that the Plaintiff’s Motion for Preliminary Injunction (Filing No. 8)
is granted, as follows:
1.

Defendant, and all affiliated or related entities, agents, officers,

employees, representatives, successors, assigns, attorneys, and all other

6

See Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 505 (8th Cir. 1987) (“By
the very nature of a trademark action, the value placed on free competition must be weighed against any
individual's property interest in that trademark, so that the analytic focus should also be on the
consumer's ability to obtain the lowest priced goods.”).

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persons acting for, with, by, through, or under authority from Defendant, or in
concert or participation with Defendant, are enjoined from:
a.

using the designation “Two Men and Two Trucks,” the URL
<www.twomenandtwotrucks.com> and any confusingly similar
imitation of Plaintiff’s TWO MEN AND A TRUCK Mark, in
connection with Defendant’s business or services, including but not
limited to the advertising of those services and use of the abovereferenced marks or designations within the phrase “formerly
known as . . .”;

b.

using any trademark, service mark, name, logo, or source
designation of any kind that is a copy, reproduction, colorable
imitation, or simulation of or confusingly similar to, the trademarks,
service marks, or logos, of Plaintiff, or is likely to cause confusion,
mistake, deception, or public misunderstanding that Defendant’s
business or services are the business or services of Plaintiff, or are
sponsored by or in any way related to Plaintiff;

2.

Defendant shall immediately:
a.

remove completely all internal and external signage from
Defendant’s place of business and vehicles that bear Plaintiff’s
TWO MEN AND A TRUCK Mark, the mark “Two Men and Two
Trucks,” and any name or mark that is confusingly similar to
Plaintiff’s TWO MEN AND A TRUCK Mark;

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b.

cease all use of advertising and promotional materials, stationary,
envelopes, business cards, invoices, fliers, websites, and similar
materials bearing Plaintiff’s TWO MEN AND A TRUCK Mark, the
“Two Men and Two Trucks” mark, and any name or mark that is
confusingly similar to Plaintiff’s TWO MEN AND A TRUCK Mark;

3.

Defendant shall also, within five (5) business days after entry of this Order,

surrender control to Plaintiff of the URL <www.twomenandtwotrucks.com> and
the telephone number [phone]. The costs of such assignment shall be
borne solely by Defendant, and the assignment to Plaintiff shall be free of
transfer fees, payments, or other encumbrances imposed by the domain registry,
the telephone company, or any other party relating to the assignment; and
4.

Within ten (10) business days after entry of this Order, Defendant shall

provide the Court with written certification of his compliance with the terms of this
Order.

Dated this 7th day of November, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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