Bridges Network, Inc. v. Rafiq et al

Filing 8

MEMORANDUM AND ORDER granting 3 Motion for TRO. Signed by Judge John T. Elfvin on 1/19/06. (RAZ)

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Bridges Network, Inc. v. Rafiq et al Doc. 8 Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 1 of 10 U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK BRIDGES NETWORK, INC., P la in tiff, -v sH A R A S RAFIQ, IB R A R UL-HAQ and B R ID G E S TV UK, D efen d a n t. 0 6 - C V- 0 0 3 1 E ( F ) M EM ORANDUM and ORDER 1 Plaintiff Bridges Network, Inc. ("Plaintiff") commenced this action on J a n u a r y 17, 2006 by filing a Verified Complaint as well as an ex parte motion for a temporary restraining order and/or preliminary injunction and for an order p e r m ittin g service by alternate means pursuant to Rule 4(f)(3) of the Federal Rules o f Civil Procedure ("FRCvP"). In its Verified Complaint, Plaintiff alleges that D e fe n d a n ts Haras Rafiq ("Haras"), Ibrar Ul-Haq ("Ibrar") and Bridges TV UK have in fr in g e d Plaintiff's trademark for Bridges TV, have violated the A n t ic y b e r s q u a t tin g Consumer Protection Act, have breached a Memorandum of U n d e r s ta n d in g ("MOU") as well as non-disclosure agreements and their fiduciary d u tie s and, finally, have engaged in unfair competition against Plaintiff. 1 This decision may be cited in whole or in any part. Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 2 of 10 P la in t iff's motion is supported by the January 17, 2006 affirmation of Jeremy A . Colby, Esq., the January 16, 2006 affirmation of Muzzammil "Mo" S. Hassan ( P la in tiff's Chief Executive Officer), a Memorandum of Law and a Witness and E x h ib it List as required by Local Rule of Civil Procedure 65(b)(4). In short, Plaintiff a lle g e s that Defendants have usurped Plaintiff's name, logo and trademark in " B r id g e s TV," as well as Plaintiff's confidential and proprietary business and fin a n c ia l information, its reputation and worldwide goodwill, and have breached v a rio u s contractual and fiduciary duties when they hold themselves out as "B rid g es TV UK" without authorization from Plaintiff. FACTS P la in t i ff, through Hassan's affirmation and its Verified Complaint, alleges th a t it is a television network dedicated to Muslim lifestyle programming which w a s developed to foster "bridges of understanding" between Muslims and nonM u s lim s . Hassan Aff. 4. Plaintiff began using the name Bridges TV in early 2002 t h ro u g h its website and has filed an application for registration of that trademark w ith the Patent and Trademark Office. In 2004, Defendants Haras and Ibrar a p p ro a c h e d Plaintiff seeking support for their idea to launch a similar network in th e United Kingdom ("UK"). Haras and Ibrar traveled to New York and entered in to a MOU with Plaintiff on July 26, 2004 whereby they agreed to jointly u n d er ta k e the development of "Bridges TV UK." -2- Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 3 of 10 P la in tiff alleges that, in exchange for options in Bridges Network and a p e rc e n ta g e of the income of Bridges TV UK, Haras and Ibrar agreed to become the Pre s id e n t and Vice-President, respectively, of Bridges TV UK, and provide le a d e r s h ip , management, and direction for Bridges TV UK. Haras and Ibrar also a g re e d (1) not to disclose any confidential or proprietary information regarding P la in t iff, or its business, financial, technical or engineering plans; (2) not to work fo r "any party in competition with [Plaintiff] for a period of two years should the p a r t ie s cease to work together %%%"; see MOU 9, and (3) that any information p ro v id e d by Haras and Ibrar to Plaintiff and any work created by them for Plaintiff " s h a ll be the property of [Plaintiff]." See MOU 10. Haras and Ibrar also signed N o n - D is c lo s u re Agreements. P la in t iff alleges, inter alia, that unbeknownst to it, Defendants obtained tr a d e m a r k registration in the UK for "Bridges TV UK" in March 2005, that such re g is tr a tio n was subsequently assigned by Defendants to "Shaneela Sattar" in A u g u s t 2005 in violation of the MOU, that Defendants attempted to terminate the M O U in September 2005, and that, since that time, Defendants have continued to h o ld themselves out as Bridges TV UK, have worked toward a launch of Bridges T V UK using Plaintiff's proprietary information and trademarked name and logo, h a v e hired staff and have registered for participation in an upcoming conference o f the National Association of Television Program Executives ("NATPE") in Las -3- Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 4 of 10 Veg a s, Nevada, under the name Bridges TV UK. Plaintiff seeks to enjoin D e fe n d a n ts from using Plaintiff's trademarked name and logo, from using P la in tiff' s proprietary information and from competing with Plaintiff, particularly b y participating in the NATPE conference. DISCUSSION I n order to obtain an temporary restraining order, Plaintiff must d e m o n s tr a te that the order is necessary to prevent irreparable harm and that it is likely to succeed on the merits of its claims or that there are sufficiently serious q u e s t i o n s going to the merits of the claims to make them a fair ground for litig a tion , with a balance of hardships tipping decidedly in Plaintiff's favor. See P h illip v. Fairfield Univ., 118 F.3d 131, 133 (2d Cir. 1997). In order to obtain such re lief ex parte, "(1) it must clearly appear from specific facts shown by affidavit or b y the verified complaint that immediate and irreparable injury %%% w ill result to the [Plaintiff] before the adverse party %%% can be heard in opposition and (2) the [Plaintiff's] attorney certifies to the court in w r itin g the efforts, if any, which have been made to give the notice a n d the reasons supporting the claim that notice should not be re q u i re d . " FRCvP 65(b). A . Good Cause for Excusing Notice P la in tiff has demonstrated sufficient cause to make this motion ex parte. P la in tiff asserts that Defendants have indicated previously that they do not -4- Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 5 of 10 c o n s id e r the MOU to be enforceable, and, even if enforceable, Defendants would c irc u m v e n t its terms by operating Bridges TV UK under the names of their s p o u se s , family and/or friends. Compl. 53. This concern is substantiated in part b y the documentary evidence indicating that some property allegedly belonging to Plaintiff -- specifically the UK registration of the Bridges TV UK trademark -- h a s been transferred from Ibrar to one "Shaneela Sattar" or "Ibrar, Shaneela," a lle g e d ly one of Ibrar's relatives and perhaps his wife.2 P la in t iff has also submitted information indicating that Defendants have re g is te re d Bridges TV UK for attendance at the NATPE conference which is s c h e d u le d to be held on January 24-26, 2006. Plaintiff asserts that Bridges N e tw o r k also intends to participate at that conference, that the purpose of that c o n fe re n c e is for television program producers to market their programs to various n e tw o rk s , that Plaintiff intends to obtain the majority of its programming at the c o n fe re n c e and that there is strong likelihood that producers will be confused as to the sponsorship of the respective Bridges entities. Plaintiff has demonstrated th a t it may suffer immediate irreparable harm by Defendants' participation in the c o n fe re n c e before Defendants can be noticed and heard in response to this motion s u c h that the Court concludes that such ex parte motion is appropriate. In the Verified Complaint, Plaintiff also alleges that in April 2005 Defendants, while working on Plaintiff's behalf, registered the domain name "" which has also been assigned to "Ibrar, Shaneela." Compl. 74- 76. 2 -5- Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 6 of 10 B . Irreparable Harm and Likelihood of Success on the Merits " In an action for trademark infringement, where a mark merits protection, a showing that a significant number of consumers are likely to be confused about th e source of the goods identified by the allegedly infringing mark is generally s u ffic ie n t to demonstrate both irreparable injury and a likelihood of success on the m e r its ." Virgin Enters. Ltd. v. Nawab, 335 F.3d 141, 146 (2d Cir. 2003). The Court fir s t asks whether Plaintiff's mark is entitled to protection and then whether D e fe n d a n ts ' use of the mark is likely to cause confusion to consumers as to the or ig in or sponsorship of the Defendants' goods. See Gruner + Jahr USA Publ'g v. M e r e d it h Corp., 991 F.2d 1072, 1074-76 (2d Cir. 1993). Furthermore, a showing of c o n fu s io n as to the source of a product ordinarily establishes a risk of irreparable h a r m to the reputation of the trademark. See Gen. Motors Corp. v. Gibson Chem. & Oil Corp., 786 F.2d 105, 109 (2d Cir. 1986). From the materials submitted, it appears that Plaintiff's mark is entitled to p ro te c tio n . According to Hassan, Plaintiff began using the Bridges TV name and log o with respect to a television network in 2002. Even though Plaintiff's a p p lic a t io n for trademark registration is pending, such registration is not required in order state a claim for infringement of a trademark. See 15 U.S.C. 1125(a). H a r a s and Ibrar clearly knew of Plaintiff's endeavor into the Muslim television m a r k e t as they approached Plaintiff seeking advice. Haras was present at the -6- Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 7 of 10 c e re m o n y to celebrate Plaintiff's initial broadcast in November 2004. Thus, the a ffir m a tio n s and documentary evidence establish Plaintiff's prior use and o w n e rs h ip of the Bridges TV mark. N e x t, the Court examines whether Defendants' use of the Bridges TV UK m a r k is likely to cause confusion. Likelihood of confusion is assessed under the fa m ilia r Polaroid factors.3 Even a cursory examination of the facts alleged in this c a s e supports a finding that the likelihood of confusion is great. Plaintiff's mark is strong. "Bridges" is not descriptive of the services Plaintiff supplies. Rather, it is descriptive of Plaintiff's purpose in creating its network; it is arbitrary when a p p lied to the services at issue. See Virgin, 335 F.3d at 147. Next, the two marks a re nearly identical. Defendants' mark merely adds the letters "UK." The third a n d fourth factors weigh in Plaintiff's favor because Plaintiff and Defendants are u s in g the marks for the same goods and services. Next, there is evidence of a c tu a l confusion. Plaintiff has submitted documentary evidence indicating that it has been contacted by individuals seeking employment with Bridges TV UK. P la in tiff also alleges that it has been contacted by creditors of Bridges TV UK s e e k in g payment for their debts because the creditors erroneously believed that The factors are: (1) strength of the plaintiff's mark; (2) similarity of the parties' marks; (3) the proximity of the parties' products in the marketplace; (4) the likelihood that the plaintiff will bridge the gap between the products; (5) actual confusion; (6) defendant's intent in adopting its mark; (7) the quality of the defendant's product; and (8) the sophistication of the relevant consumer group. Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 46 (2d Cir. 2000) (citing Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961)). 3 -7- Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 8 of 10 P la in tiff was responsible for the debts. Compl. 87. There is also a strong in fe re n c e that Defendants' intent in adopting the Bridges TV UK mark was im p ro p e r. The seventh factor cannot be weighed as Defendants are scheduled to begin broadcasting sometime this summer. The final factor also weighs in P la in tiff's favor as relatively sophisticated individuals -- those seeking e m p lo y m e n t in the media marketplace -- are already confused as to who s p o n s o rs Bridge TV UK and it seems virtually certain that less sophisticated c on su m er s of television would be similarly confused. The Court concludes that Plaintiff has demonstrated that the restraining o rd e r is necessary to prevent irreparable harm and that there is a likelihood of su c c es s on the merits of its claims. Accordingly, it is hereby ORDERED that Plaintiff's motion is granted and D efen d a n t s , their agents or anyone acting at the direction of or in concert with D e fe n d a n ts or their agents are hereby restrained from: ( A ) using Plaintiff's name, logo or "Bridges TV" trademark or other re la te d information; ( B ) participating in or attending the National Association of Te le v is io n Program Executives conference scheduled for January 242 6 , 2006 in Las Vegas, Nevada; ( C ) competing with Plainitff in violation of the MOU; -8- Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 9 of 10 ( D ) using or disclosing Plaintiff's confidential or proprietary in fo r m a tio n ; and ( E ) holding themselves out as "Bridges TV" or otherwise c o m m u n ic a tin g to any person or organization that Defendants are a ffilia t e d with Plaintiff in any way; and it is further ORDERED that this Order will be binding upon anyone who receives actual n o t ic e of this Order; and it is further O R D E R E D that this Order will expire ten days after entry unless further e x t e n d e d by Order of this Court or by Defendants' consent that it may be e x te n d e d for a longer period of time; and it is further O R D E R E D that this Order together with copies of the papers upon which it was granted shall be served upon Defendants forthwith as set forth below; and it is further O R D E R E D that Bridges shall serve Defendants by (1) attempting personal s e r v ic e in the United Kingdom, (2) certified mail as permitted by Section 10(a) of th e Hague Convention and (3) e-mail pursuant to Rule 4(f)(3) of the Federal Rules of C ivil Proc e d u r e at h_rafiq @ h o t m a i l . c o m , ib r a r @ h o t m a i l . c o m , h a r a s .r a fiq @ b to p e n w o r ld .c o m and; and it is further O R D E R E D that pursuant to FRCvP 65(c) the Court concludes that this Order s h a ll be effective upon Plaintiff's posting of security or bond in the amount of $ 1 0 , 0 0 0 ; and it is further -9- Case 1:06-cv-00031-JTE Document 8 Filed 01/19/2006 Page 10 of 10 ORDERED that this temporary restraining order is entered this 19th day of J a n u a r y, 2006 at a.m., in 11:22 a.m. Buffalo, New York; and it is further O R D E R E D that Plaintiff's motion for an expedited hearing is granted and th a t a conference to set a date for a hearing is scheduled for January 26, 2006 at 1 1 :0 0 a.m. DAT E D : B u ffa lo, N.Y. J a n u a r y 19, 2006 /s/ John T. Elfvin JOHN T. ELFVIN S.U.S.D.J.

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