Merch Traffic, LLC v. John Does 1-100 et al

Filing 16

TEMPORARY RESTRAINING ORDER; SEIZURE ORDER; AND AN ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION AND SEIZURE ORDER SHOULD NOT ISSUE: IT IS HEREBY ORDERED that defendants, John Does 1-100, Jane Does 1-100 and XYZ Company their true identities b eing unknown (collectively "Defendants), show cause before the Honorable Analisa Torres, United States District Court Judge, in Courtroom 15D of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York at 2:00 p.m. on October 21, 2021 or as soon thereafter as counsel can be heard, why an order pursuant to the Lanham Act 15 U.S.C. § 1051 et. seq., Fed. R. Civ. P. Rule 65, and the All Writs Act 28 U.S.C. § 1651 should not be entered granting to Plaintiff, Merch Traffic, LLC, a preliminary injunction to enjoin the Defendants from manufacturing, distributing, selling or holding for sale, any clothing, jewelry, photograp hs, posters and other merchandise (collectively the "Infringing Merchandise") and to seize the same bearing the federally registered trademarks, service marks, likenesses, logos and other indicia of the Artist HARRY STYLES (collectively, the "Artists Trademarks"). AND IT APPEARING TO THE COURT that Defendants are about to sell and distribute the Infringing Merchandise bearing any or all of the Artists Trademarks as set forth in Plaintiff' ;s complaint and declaration, 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 b e 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 Pl aintiff'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 diluti on of the value of the Artists Trademarks, interference with Plaintiff's ability to exploit, market and license its merchandising rights, confusion in the marketplace as to the duly authorized source of merchandise depicting the Artists Trademarks, and impairment of the good will Plaintiff and its licensors have in the said Artists Trademarks; IT IS FURTHER ORDERED that pending hearing and determination of this application, or the expiration of fourteen (14) days from the date hereof whichever occurs first, 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 hereb y are temporarily restrained from manufacturing, distributing and selling Infringing Merchandise bearing the any or all of the Artists Trademarks; AND IT IS FURTHER ORDERED that 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 Artists Trademarks (namely of HARRY STYLES ), which defendants attempt to sell or are holding for sale, including from any carton, container, vehicle, or other means of carriage in which the Infringing Merchandise is found from four (4) hours before to four (4) hours after any performance of the tour within a four (4) mile vicinity of the halls, stadiums or arenas at which the Artists tour shall be performing, including but not limited to in connection with the concerts to be held October 16, October 30, and October 31, 2021 at Madison Square Garden in New York, New York; AND IT IS FURTHER ORDERED that this order be and is hereby conditioned upon Plaintiff's filing with the Clerk of this Court an undertaking in the form of a bond, certified c heck, or cash in the amount of $5,000 no later than October 13, 2021, to secure the payment of such costs and 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 th eir 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 p olice, 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 go od 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 Merchan dise 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 Pla intiff be allowed to photograph, video tape or otherwise identify the Defendant; 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 d elivering copies to its counsel on or before October 19, 2021 at 5:00PM. Any reply shall be filed by the Plaintiff and served upon each appearing defendant or his/her counsel on or before October 20, 2021 at 5:00PM. Plaintiff is to provide copie s 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 C ourt 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 (b)(4), any defendant can apply to this Court to modify or dissolve 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 to stay its terms unless otherwise ordered by this Court. IT IS SO ORDERED. ( Show Cause Hearing set for 10/21/2021 at 02:00 PM in Courtroom 15D, 500 Pearl Street, New York, NY 10007 before Judge Mary Kay Vyskocil.) (Signed by Judge Mary Kay Vyskocil (PART 1) on 10/8/2021) (tg) Modified on 10/8/2021 (tg).

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Case 1:21-cv-08283-AT Document 16 Filed 10/08/21 Page 1 of 5 Mark Bradford (MB 6002) MARK BRADFORD, PC 299 12th Street Brooklyn, New York 11215-4903 Telephone: (347) 413-3287 mb@markbradfordpc.com USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 10/8/2021 Cara R. Burns (CB 1071) HICKS, MIMS, KAPLAN & BURNS (PHV to be requested) 28202 Cabot Road, Ste 300 Laguna Niguel, California 92677 Telephone: (310) 314-1721 Facsimile: (310) 314-1725 cburns@hmkblawyers.com UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MERCH TRAFFIC, LLC, Plaintiff, No. 1:21-cv-8283 v. TEMPORARY RESTRAINING ORDER; SEIZURE ORDER; AND AN ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION AND SEIZURE ORDER SHOULD NOT JOHN DOES 1-100, JANE DOES 1-100, AND XYZ COMPANY, Defendants. ISSUE _______________________________________ x Based upon the complaint, memorandum of points and authorities, Declaration of Dar Jenkins and the Certificate of Counsel of Cara R. Burns and all other pleadings and proceedings heretofore had herein and good cause being shown: IT IS HEREBY ORDERED that defendants, John Does 1-100, Jane Does 1-100 and XYZ Company their true identities being unknown (collectively "Defendants”), show cause before the Honorable Analisa Torres, United States District Court Judge, in Courtroom 15D of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 1 Case 1:21-cv-08283-AT Document 16 Filed 10/08/21 Page 2 of 5 at 2:00 p.m. on October 21, 2021 or as soon thereafter as counsel can be heard, why an order pursuant to the Lanham Act 15 U.S.C. § 1051 et. seq., Fed. R. Civ. P. Rule 65, and the All Writs Act 28 U.S.C. § 1651 should not be entered granting to Plaintiff, Merch Traffic, LLC, 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") and to seize the same bearing the federally registered trademarks, service marks, likenesses, logos and other indicia of the Artist “HARRY STYLES” (collectively, the "Artist’s Trademarks"). AND IT APPEARING TO THE COURT that Defendants are about to sell and distribute the Infringing Merchandise bearing any or all of the Artist’s Trademarks as set forth in Plaintiff's complaint and declaration, 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 Artist’s Trademarks, interference with Plaintiff's ability to exploit, market and license its merchandising rights, confusion in the marketplace as to the duly authorized source of merchandise depicting the Artist’s Trademarks, and impairment of the good will Plaintiff and its licensors have in the said Artist’s Trademarks; 2 Case 1:21-cv-08283-AT Document 16 Filed 10/08/21 Page 3 of 5 IT IS FURTHER ORDERED that pending hearing and determination of this application, or the expiration of fourteen (14) days from the date hereof whichever occurs first, 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 Artist’s Trademarks; AND IT IS FURTHER ORDERED that 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 Artist’s Trademarks (namely of HARRY STYLES ), which defendants attempt to sell or are holding for sale, including from any carton, container, vehicle, or other means of carriage in which the Infringing Merchandise is found from four (4) hours before to four (4) hours after any performance of the tour within a four (4) mile vicinity of the halls, stadiums or arenas at which the Artist’s tour shall be performing, including but not limited to in connection with the concerts to be held October 16, October 30, and October 31, 2021 at Madison Square Garden in New York, New York; AND IT IS FURTHER ORDERED that this order be and is hereby conditioned upon Plaintiff's filing with the Clerk of this Court an undertaking in the form of a bond, certified check, or cash in the amount of $5,000 no later than October 13, 2021, to secure the payment of such costs and 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 3 Case 1:21-cv-08283-AT Document 16 Filed 10/08/21 Page 4 of 5 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; 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 October 19, 2021 at 5:00PM. Any reply shall be filed by the Plaintiff and served upon each appearing defendant or his/her counsel on or before October 20, 2021 at 5:00PM. 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 (b)(4), any defendant can apply to this 4 Case 1:21-cv-08283-AT Document 16 Filed 10/08/21 Page 5 of 5 Court to modify or dissolve 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 to stay its terms unless otherwise ordered by this Court. IT IS SO ORDERED. Dated: October 8, 2021 _ _______________________________ ____ __ __ _____________ ____ _ ______________________________________ HONORABLE MARY KAY VYSKOCIL, OR HONORABLE MA MARY KAY VYSK UNITED STATES DISTRICT JUDGE, PART ONE ED STATES D TE E JUDG 5

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