PrepareMe America, LLC v. Survival Prep Warehouse, LLC et al

Filing 56

MINUTE ORDER granting plaintiff's 37 Motion for Leave to Amend Complaint. Plaintiff shall file its Amended Complaint within seven (7) days of the date of this Minute Order; denying plaintiff's 33 Motion for Preliminary Injunction. Authorized by Judge Thomas S. Zilly. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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PREPAREME AMERICA, LLC,

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Plaintiff,

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v.
SURVIVAL PREP WAREHOUSE, LLC,
et al.,

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Defendants,

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C17-359 TSZ
MINUTE ORDER

v.

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CHAD E. ALLEN,

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Third-Party Defendant.

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The following Minute Order is made by direction of the Court, the Honorable
16 Thomas S. Zilly, United States District Judge:
(1)
Plaintiff’s motion for leave to amend, docket no. 37, is GRANTED.
17 Plaintiff shall electronically file its Amended Complaint within seven (7) days of the date
of this Minute Order. Notwithstanding Federal Rule of Civil Procedure 15(a)(3), any
18 responsive motion or pleading shall be filed within twenty-one (21) days of the date the
Amended Complaint is filed.
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(2)
Plaintiff’s motion for a preliminary injunction, docket no. 33, is DENIED
20 without prejudice.1 Plaintiff’s motion is premised on the theory that, by using Amazon
Standard Identification Numbers (“ASINs”) associated with plaintiff’s products and/or
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Plaintiff’s request for oral argument, docket no. 55, is DENIED.

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MINUTE ORDER - 1

1 federally registered trademark PERFECT SURVIVAL KIT, defendant Survival Prep
Warehouse, LLC (“Survival Prep”) is engaged in infringement. For support, plaintiff has
2 submitted several Amazon product-detail pages,2 which may be summarized as follows:
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Ex.
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Date of
Page

Product Name

Ships From
and Sold By

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SurvivalKitsOnline
09-28-17 4 Person Perfect Survival
Kit Deluxe

Get_Prepared_
For_Disaster

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SurvivalKitsOnline
10-11-17 4 Person Perfect Survival
Kit Deluxe

Survival Prep
Warehouse

K

Survival Prep Warehouse
10-18-17 4 Person Perfect Survival
Kit Deluxe

Survival Prep
Warehouse

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Survival Prep Warehouse
10-24-17 4 Person Survival Kit
Deluxe

Survival Prep
Warehouse

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4 Person Perfect Survival
09-28-17 Kit Deluxe
by SurvivalKitsOnline

not shown

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Perfect Survival Kit
09-28-17 Deluxe 2-Person Perfect
Survival Kit

Get_Prepared_
For_Disaster

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Exhibits I-W to Matesky Decl. (docket nos. 34-1 – 34-3).

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MINUTE ORDER - 2

Product Image

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Product Name

Ships From
and Sold By

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SurvivalKitsOnline
10-19-17 Deluxe 2-Person Perfect
Survival Kit

Survival Prep
Warehouse

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Survival Prep Warehouse
10-24-17 Deluxe 2-Person Survival
Kit

Survival Prep
Warehouse

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Deluxe 2-Person Perfect
09-28-17 Survival Kit
by Perfect Survival Kit

not shown

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Perfect Survival Kit
09-28-17 Earthquake Kit, The Small
Perfect Survival Kit

Get_Prepared_
For_Disaster

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Perfect Survival Kit
10-19-17 Earthquake Kit, The Small
Perfect Survival Kit

Survival Prep
Warehouse

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Perfect Survival Kit
10-24-17 Earthquake Kit, The Small
Perfect Survival Kit

Survival Prep
Warehouse

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4 Person Perfect Survival
01-23-17 Kit Deluxe
by Perfect Survival Kit

Get_Prepared_
For_Disaster

Ex.

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Date of
Page

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MINUTE ORDER - 3

Product Image

1

Ex.

Date of
Page

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10-20-17

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Product Name

Ships From
and Sold By

Survival Prep Warehouse
4 Person Kit

Survival Prep
Warehouse

Survival Prep Warehouse
10-20-17 2 Person Deluxe Survival
Kit

Survival Prep
Warehouse

Product Image

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8 Exhibits I, N, R, and U indicate that an entity other than plaintiff or Survival Prep (i.e.,
Get_Prepared_For_Disaster) is offering or has offered for sale three different products
9 styled as a “Perfect Survival Kit,” namely a 4-person, a 2-person, and a small or
earthquake kit. Exhibits M and Q are not linked in any way to Survival Prep. The
10 remaining exhibits show that, although Survival Prep’s earlier product descriptions and
images included the term “PERFECT,” which is the only portion of the trademark as to
11 which plaintiff might claim an exclusive right, see Ex. A to Compl. (docket no. 1-1),
more recent Amazon pages omit the word. See Exs. J-L, O-P, & V-W (docket nos. 34-2
12 & 34-3). Such evidence does not establish ongoing trademark infringement (or a related
continuing violation of Washington’s Consumer Protection Act (“CPA”)), which is a
13 threshold for any preliminary injunctive relief.3 See Mayfield v. United States, 599 F.3d
964, 970-71 (9th Cir. 2010) (to obtain injunctive relief, a movant must show that its
14 injury is ongoing or likely to recur). To the extent plaintiff alleges that Survival Prep’s
use of the ASINs at issue precludes plaintiff from competing in the market or falsely
15 designates Survival Prep as the origin of goods associated with plaintiff or its trademark,
plaintiff has not yet pleaded such claims, and the Court cannot conclude that plaintiff has
16 shown a likelihood of success on, or serious questions going to, the merits of legal
theories not presently part of this litigation.4 See Winter v. Natural Res. Def. Council,
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The Court makes no ruling concerning whether Survival Prep’s use of the ASINs at issue, prior

19 to the removal in October 2017 of the term “PERFECT,” constituted trademark infringement, a
CPA violation, or a tort for which plaintiff might have a remedy at law.

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Plaintiff’s reliance on Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250 (9th Cir. 1982), is
misplaced. The case is both procedurally and factually distinguishable. It involved summary
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judgment, as opposed to preliminary injunctive relief, and it concerned a restaurant’s ongoing
substitution of Pepsi-Cola without oral notice in response to customers’ specific requests for
22 Coca-Cola or Coke.

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MINUTE ORDER - 4

1 Inc., 555 U.S. 7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131-35 (9th Cir. 2011).
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(3)
The Clerk is directed to send a copy of this Minute Order to all counsel of
3 record.
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Dated this 27th day of November, 2017.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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MINUTE ORDER - 5