F.E.A., Inc. v. John Does 1-100 et al

Filing 3

TEMPORARY RESTRAINING ORDER; SEIZURE ORDER; AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION AND SEIZURE ORDER SHOULD NOT ISSUE: John Does 1-100, Jane Does 1-100, XYZ Company shall show cause as to why an order pursuant to Fed. R. Civ. P. Rule 65, the Lanham Act 15 U.S.c. § 1051 et. seq., should not be entered granting to Plaintiff, F.E.A., Inc. a preliminary injunction to enjoin the Defendants from manufacturing, distributing, selling or holding for sale, any clothing, jewelry, photographs, posters and other merchandise (collectively the "Infringing Merchandise") bearing the federally registered trademarks, servicemarks, likenesses, logos and other indicia of the group "VAN HALEN" (collectively, the "Trademarks"). IT IS FURTHER ORDERED that pending hearing and determination of this application, or the expiration of fourteen (14) days from the date hereof, the Defendants, their agents, servants, employees, attorneys, successors and assigns and all persons, firms and corporations acting in concert with them, and each of them, be and hereby are temporarily restrained from manufacturing, distributing and selling InfringingMerchandise bearing the any or all of the Trademarks. Show Cause Hearing set for 2/27/2012 at 02:45 PM before Judge Paul G. Gardephe. Responses due by 2/24/2012, Replies due by 2/27/2012. (Signed by Judge Kimba M. Wood on 2/22/2012) (rdz) (Main Document 3 replaced on 2/23/2012) (jar).

Mark Bradford (MB 6002)
MARK BRADFORD, PC
299 12th Street
Brooklyn, New York 11215-4903
Telephone: [phone]
[e-mail]

USDSSDNY
DOCUMENT
,E~~CTRONICALLY

..
DOC #: ._----------,r----r-­
DATE FILED: ~ ~It ~

Cara R. Burns (CB 1071) (pro hac vice requested)
HICKS, MIMS, KAPLAN & BURNS
3250 Ocean Park Blvd, Ste 350
Santa Monica, California 90405
Telephone: [phone]
Facsimile: [phone]
[e-mail]

rNITED STATES DISTRICT COURT
SOUTHERl~ DISTRICT OF NEW YORK

F.E.A., INC.,

CIVIL ACTION NO.
~]

TEMPORARY
RESTRAINING ORDER;
SEIZURE ORDER; AND
ORDER TO SHOW CAUSE
WHY A PRELIMINARY
INJUNCTION AND SEIZUR}~
ORDER SHOULD NOT ISSUE

Plaintiff,

v.

,JOHN DOES 1-100, JANE DOES

1-100, AND XYZ COMPANY,
Defendants.

Based upon the complaint, memorandum of points and authorities, Declaration of
Tyler Zeigler and the Certificate of Counsel of Cara R. Burns and all other pleadings and
proceedings heretofore had herein and good cause b<.::ing shown:

IT IS HEREBY ORDERED that defendants, John Does 1-100, Jane Does 1-100
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FILED

and XYZ Company their true identities being unknown

(collectively "Defendants"),

show cause before the Honorable ~~4~I.I< United States District Court Judge, in

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the United States District Court for the Southern District of New York, located at 500
Pearl Street, New York, New York at

.d!1!£p..m. on F4

2.1-

,2012 or as soon

thereafter as counsel can be heard, why an order pursuant to Fed. R. Civ. P. Rule 65, the
Lanham Act 15 U.S.c. § 1051 et. seq., should not be entered granting to Plaintiff, F.E.A.,
Inc. a preliminary injunction to enjoin the Defendants from manufacturing, distributing,
selling or holding for sale, any clothing, jewelry, photographs, posters and other
merchandise (collectively the "Infringing Merchandise") bearing the federally registered
trademarks, servicemarks, likenesses, logos and other indicia of the group "VAN
HALEN" (collectively, the "Trademarks").
AND IT APPEARING TO THE COURT that Defendants are about to sell and

distribute the Infringing Merchandise bearing any or all of the Trademarks as set forth in
Plaintiff's complaint and declarations, and will continue to carry out such acts unless
restrained by order of the Court;
AND IT APPEARING TO THE COURT that immediate and irreparable injury,

loss or damage will result to the Plaintiff before Defendants can be identified and given
notice and their attorneys can be heard in opposition to the granting of the temporary
restraining order, in that the Defendants are preparing to manufacture, distribute and sell
Infringing Merchandise as set forth in the Plaintiff's complaint, and that, unless said
Defendants are enjoined from said manufacture, distribution, and sale, the Plaintiff will
suffer immediate and irreparable injury and harm in the form of a loss of income,
lessening and dilution of the value of the Trademarks, interference with Plaintiffs ability
to exploit, market and license its merchandising rights, confusion in the marketplace as to

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the duly authorized source of merchandise depicting the Trademarks, and impairment of
the good will Plaintiff and its licensors have in the said Trademarks;

IT IS FURTHER ORDERED that pending hearing and determination of this
application, or the expiration of fourteen (14) days from the date hereof, the Defendants,
their agents, servants, employees, attorneys, successors and assigns and all persons, firms
and corporations acting in concert with them, and each of them, be and hereby are
temporarily

restrained

from

manufacturing,

distributing

and

selling Infringing

Merchandise bearing the any or all of the Trademarks;

AND IT IS FURTHER ORDERED that pursuant to 1116 (a), the United States
Marshal, for this District, the state police, local police or local deputy sheriffs, off duty
officers of the same, and any person acting under their supervision, are hereby authorized
to seize and impound any and all Infringing Merchandise bearing any or all of the
Group's Trademarks, namely of VAN HALEN, which defendants attempt to sell or are
holding for sale, including any from any carton, container, vehicle, or other means of
carriage in which the Infringing Merchandise is found from six (6) hours before to six (6)
hours after any performance of the tour within a ten (10) mile vicinity of the halls,
stadiums or arenas at which the Group's Tour shall be performing, including but not
limited to in connection with the concerts to be held February 28 and March 1, 2012 at
Madison Square Garden in New York, New York;

AND IT IS FURTHER ORDERED that this order be and is hereby conditioned
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upon Plaintiffs til ing with the Clerk of this Court an undertaking in the form of a bond,
certified check, or cash in the amount of $JMOo/;()no later than feb

2-</

, 2012, a-r 5;'0'[; f ..tt .

receipt of which is hereby acknowledged to secure the payment of such costs and

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damages not to exceed such sum as may be suffered or sustained by any party who is
found to be wrongfully restrained hereby;

AND IT IS FURTHER ORDERED that this temporary restraining order is
conditioned upon the Plaintiff's advancing to the law enforcement officers such sum as is
required by the same to cover the fees for their said services, in the event Plaintiff seeks
their services in this or any other district;
AND IT IS FURTHER ORDERED that service of a copy of this order to show

cause together with the complaint upon which it is based, be made upon the Defendants
by the United States Marshal, state or local police, local deputy sheriffs or by any person
over the age of eighteen (18) years not a party to this action selected for that purpose by
the Plaintiff, at the time of the seizure provided herein is effected and that such service
shall be deemed good and sufficient;
AND IT IS FURTHER ORDERED that the process server shall offer a receipt

to each person from whom Infringing Merchandise is seized and that the Plaintiff shall be
deemed substitute custodian for all Infringing Merchandise seized;
AND IT IS FURTHER ORDERED that each and every defendant served with a

copy of this order promptly, courteously and peaceably identify himself or herself to the
aforementioned process server and that the process server or agents for Plaintiff be
allowed to photograph, video tape or otherwise identify the Defendant;
II!
/I!

III

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AND IT IS FURTHER ORDERED that Defendants' responsive papers, if any,
shall be filed with the Clerk of this Court and served upon the attorneys for Plaintiff by
delivering copies to its counsel on or before f~ .1.1..\'
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~ q:ro ~ ,~vt f
1(lNu'u
, 2012,,-Any reply shall be filed

by the Plaintiff and served upon each appearing defendant or his/her counsel on or before
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fell. 17, 201:;{ Plaintiff is to provide copies of all other filed pleadings at the
request of any identified defendant;

AND IT IS FURTHER ORDERED that any defendant who is hereafter served
with a copy of this order who objects to the provisions hereof may submit his or her
objections to this Court or otherwise move for relief from this Court according to the
Federal Rules of Civil Procedure, including that pursuant to F.R.C.P. Rule 65 (d), any
defendant can apply to this Court for modification/dissolution of this Order on two (2)
days notice or shorter notice as this Court may allow, but no such application shall serve
to suspend this Order or stay the terms herein unless otherwise ordered by this Court.

IT IS SO ORDERED.

J

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Dated: February y2012
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HONORABLE f--(wlkx, ('vi· W ('(ltV

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UNITED STATES DISTRICT COURT JUDGE

(fa>tf-

Cara R. Burns (CB 1071) (pro hac vice requested)
HICKS, MIMS, KAPLAN & BURNS
3250 Ocean Park Blvd, Ste 350
Santa Monica, CA 90405
Telephone: [phone] Facsimile: [phone]
[e-mail]

Attorneys for Plaintiff

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