American Casino & Entertainment Properties, LLC v. Marchex Sales, Inc.

Filing 8

ORDER Granting 2 Motion for TRO. Motion Hearing re: 3 Motion for Preliminary Injunction is set for 7/3/2012 03:30 PM in LV Courtroom 7D before Judge Gloria M. Navarro. Responses due by 5pm on 6/27/2012. Replies due by 12:00pm on 7/2/2012. Signed by Judge Gloria M. Navarro on 6/21/2012. (Copies have been distributed pursuant to the NEF - SLR)

1 Michael J. McCue (NV Bar No. 6055)
[e-mail]
2 Jonathan W. Fountain (NV Bar No. 10351)
[e-mail]
3 LEWIS AND ROCA LLP
3993 Howard Hughes Parkway, Suite 600
4 Las Vegas, Nevada 89169
Tel: [phone]
5 Fax: [phone]
6 Attorneys for Plaintiff
AMERICAN CASINO &
7 ENTERTAINMENT PROPERTIES, LLC
8
9

UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

11

12 AMERICAN CASINO & ENTERTAINMENT
PROPERTIES, LLC, a Delaware limited liability
13 company,
14
15

Plaintiff,
v.

16 MARCHEX SALES, INC, a Delaware
corporation,
17
Defendant.
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Case No. 2:12-cv-01054-GMN -VCF
Case No. 2:12-cv-01054-GMN-VCF
TEMPORARY RESTRAINING ORDER,
ORDER FOR ALTERNATIVE
SERVICE, AND ORDER SETTING
HEARING AND BRIEFING SCHEDULE
ON PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION

UPON CONSIDERATION of the motion filed by Plaintiff American Casino &

20 Entertainment Properties, LLC (“ACEP”) for an ex parte temporary restraining order, for
21 alternative service, and for a preliminary injunction, the supporting memorandum of points and
22 authorities, the supporting declarations of Phyllis Gilland and Nikkya Williams, the record in this
23 case, and for other good cause shown;
24

THE COURT HEREBY FINDS THAT:

25

1.

ACEP will suffer irreparable injury to its valuable ACEPLAY trademarks and

26 associated goodwill if the Defendant is not temporarily enjoined and restrained from transferring
27 the <aceplay.com> domain name to other domain name registrars located outside the Court’s
Lewis and Roca LLP
3993 Howard Hughes Parkway
Suite 600
Las Vegas, Nevada 89169

28 jurisdiction, or from transferring its registration for the <aceplay.com> domain name to other

2883104.1

1 persons or entities located outside the Court’s jurisdiction;
2

2.

ACEP is likely to succeed on the merits of its claims for cybersquatting and

3 trademark infringement;
4

3.

The balance of hardships tips in ACEP’s favor because a temporary restraining

5 order would merely place the <aceplay.com> domain name on hold and lock pending trial, and
6 the failure to issue a temporary restraining order would cause ACEP to suffer additional
7 irreparable injury and incur additional expense if the <aceplay.com> domain name is transferred
8 to other registrants during the pendency of this action, requiring ACEP to file additional
9 lawsuit(s) in other jurisdictions;
10

4.

The issuance of a temporary restraining order is in the public interest because it

11 would protect consumers against deception and confusion arising from domain names containing
12 ACEP’s trademarks, and from the use of ACEP’s trademarks, by persons other than ACEP; and
13

5.

Defendant will suffer minimal damage, if any damage at all, by the issuance of a

14 temporary restraining order; accordingly, a nominal bond in the amount of $100 is reasonable
15 security.
16

THEREFORE, IT IS HEREBY ORDERED THAT, pending a full trial on the merits:

17

1.

eNom, Inc. (“eNom”) (the domain name registrar) shall immediately remove or

18 disable the domain name server (“DNS”) information for <aceplay.com>, shall place the
19 <aceplay.com> domain name on hold and lock, and shall deposit it into the registry of the Court;
20 and
21

2.

Defendant, including without limitation, all of its respective partners, officers,

22 agents, servants, employees, and all other persons acting in concert or participation with
23 Defendant, are hereby temporarily restrained and enjoined from: (A) registering or trafficking in
24 any domain name containing the ACEPLAY marks or any confusingly similar variations thereof,
25 alone or in combination with any other letters, words, phrases or designs; and (B) using the
26 ACEPLAY marks or any confusingly similar variations thereof, alone or in combination with
27 any other letters, words, letter strings, phrases or designs in commerce (including, but not limited
Lewis and Roca LLP
3993 Howard Hughes Parkway
Suite 600
Las Vegas, Nevada 89169

28 to, on any website or within any hidden text or metatags within any website).
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1

IT IS HEREBY FURTHER ORDERED THAT:

2

1.

Upon the issuance of this order, ACEP shall provide security for this temporary

3 restraining order by tendering $100 cash to the Clerk of the Court pursuant to Local Rule 67-1;
4

2.

ACEP may serve the Summons and Complaint by email to the email address

5 Defendant has maintained with eNom (i.e., [e-mail]), and by registered mail, in
6 lieu of any other method of service required or permitted by Rules 4 and/or 5 of the Federal
7 Rules of Civil Procedure;
8

5.

ACEP may serve all other pleadings, orders, motions, notices, and papers in this

9 case upon Defendant by e-mail transmission to the email address Defendant has maintained with
10 eNom (i.e., [e-mail]) in lieu of any other method of service required or
11 permitted by Rules 4 and/or 5 of the Federal Rules of Civil Procedure;
12

6.

The parties shall appear for hearing and oral argument on ACEP’s motion for

Tuesday, July __, 2012, at _____ in Courtroom 7D, ___
13 preliminary injunction on ____________ 3, 2012 at 3:30 p.m. __.m. in Courtroomat the , at the
14 Lloyd D. George Federal Courthouse, 333 South Las Vegas Boulevard, Las Vegas, Nevada;
15

7.

Defendant shall file and serve its opposition brief to ACEP’s motion for

5:00 p.m. on Wednesday, June 27, 2012; and
16 preliminary injunction, if any, no later than ______________, 2012; and
17

8.

ACEP shall file and serve its reply brief in support of its motion for preliminary

18 injunction no later than ____________, Monday, July 2, 2012.
12:00 noon on 2012.
19

ENTERED: day of June, 2012.
DATED this 21st this ______ day of June, 2012 at _____ __.m.

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_________________________________
UNITED STATES DISTRICT JUDGE

________________________________
Gloria M. Navarro
United States District Judge

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Lewis and Roca LLP
3993 Howard Hughes Parkway
Suite 600
Las Vegas, Nevada 89169

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-32883104.1