Evergreen Research and Marketing, LLC v. Mystical Distributing Co.. Ltd

Filing 8

ORDER denying without prejudice 6 Motion for TRO. Signed by Judge Jennifer A. Dorsey on 2/26/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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EVERGREEN RESEARCH AND
MARKETING, LLC, a California limited
liability company

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Plaintiff,

No: 2:15-cv-00318-JAD-PAL
Order Denying Without Prejudice
Ex Parte Application for Temporary
Restraining Order [Doc. 6]

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vs.

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MYSTICAL DISTRIBUTING CO., LTD, a
Canadian limited partnership, and DOES 1-10,

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Defendants.

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Plaintiff Evergreen Research and Marketing moves on an ex parte basis for an

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Emergency Temporary Restraining Order and Preliminary Injunction under Rule 65 of the

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Federal Rules of Civil Procedure and Local Rule 7-5. In a complaint filed on February 23,

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2015, Evergreen alleges that Defendants Mystical Distributing are advertising, displaying,

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and offering to sell an insect-repelling wristband called the “Bug Bracelet” that infringes on

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Evergreen’s trade dress. See Doc. 1. It further alleges that Mystical intends to sell this Bug

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Bracelet at a trade show in Las Vegas, Nevada, that begins on March 1, 2015. Evergreen

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therefore seeks a temporary restraining order to prevent Mystical (1) from using Evergreen’s

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trade dress to advertise, manufacture, produce, sell, or distribute the Bug Bracelet; and (2)

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from destroying, altering, or otherwise disposing of any documents, electronic files, or

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business record related to the Bug Bracelet.

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Evergreen has presented a persuasive case for the granting of a temporary restraining

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order. Its supporting exhibits show that the Bug Bracelet sold by Mystical, who used to

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distribute an insect-repelling wristband of Evergreen’s called SUPERBAND®, uses

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packaging and marketing banners nearly identical to that used by Evergreen to sell

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SUPERBAND®. See Doc. 6-2 at 12-24. But before I can issue a temporary restraining order,

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Evergreen must “give[] security “in an amount that the court considers proper to pay the

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costs and damages sustained by any party found to have been wrongfully enjoined or
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restrained.” Fed. Rule of Civ. P. 65(c). Nowhere in its motion does Evergreen offer to do

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this. Nor does it provide any argument or authority that might help me determine what a

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reasonable security amount might be in this case.

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Moreover, there appears to be some confusion about the estimated harm Evergreen

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expects to incur should I not issue a temporary restraining order: in its motion, Evergreen

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states that the estimated harm is “approximately $50,000,” Doc. 6-1 at 9; but in the

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Declaration of Evergreen President Robert Albert on which Evergreen’s motion relies, the

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estimated harm is “approximately $500,000.” Doc. 6-2 at ¶16. One of these is likely just a

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typo. But without more full guidance from Evergreen on how to determine the amount it will

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need to give in security to protect Mystical’s interests, I decline to issue the temporary

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restraining order it seeks. Evergreen’s motion is therefore denied without prejudice. Should

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Evergreen decide to file a new motion for temporary restraining order, the security

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requirement laid out in Federal Rule of Civil Procedure should be directly addressed.
CONCLUSION

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Accordingly, it is HEREBY ORDERED that Plaintiff’s Motion for Ex Parte

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Application for a Temporary Restraining Order [Doc. 6] is DENIED WITHOUT

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PREJUDICE.

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DATED: February 26, 2015.

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_________________________________
Jennifer A. Dorsey
United States District Judge

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