BP Products North America Inc v. Bulk Petroleum Corporation

Filing 10

ORDER signed by Judge Rudolph T Randa on December 7, 2007 denying 4 Motion for TRO; deferring ruling on 4 Motion for Preliminary Injunction. (cc: all counsel) (Randa, Rudolph)

BP Products North America Inc v. Bulk Petroleum Corporation

Doc. 10

Case 2:07-cv-01085-RTR

Filed 12/07/2007

Page 1 of 3

Document 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

B P PRODUCTS NORTH AMERICA, INC., P l a i n t i f f, v. B U L K PETROLEUM CORPORATION, Defendant. C a s e No. 07-C-1085

DECISION AND ORDER

T h e plaintiff, BP Products North America, Inc. ("BP"), alleges in its complaint that B u lk Petroleum Corporation ("Bulk") is currently infringing BP's trademark, in violation of the Lanham Act, 15 U.S.C. §§ 1114(1)(a) & 1125(a). BP filed a motion for a temporary re stra in in g order and a preliminary injunction, which is currently pending before the Court. A c c o r d in g to the complaint, Bulk is a former franchisee of BP that was licensed to use B P ' s trademarks and service marks in connection with the sale of motor fuel. BP alleges that B P breached the franchise agreement by selling adulterated, unauthorized, commingled and m is b ra n d e d motor fuel under BP's trademarks. As a result, BP terminated Bulk's franchise. N e v e rth e le ss , according to BP, Bulk continues to operate and sell unauthorized motor fuel u sing BP's trademarks and service marks, an activity BP seeks to enjoin with a temporary re stra in in g order and a preliminary injunction.

Dockets.Justia.com

Case 2:07-cv-01085-RTR

Filed 12/07/2007

Page 2 of 3

Document 10

T h e Court may grant a temporary restraining order only if "it clearly appears from sp e c if ic facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's a tto rn e y can be heard in opposition." Fed. R. Civ. P. 65(b)(1). BP failed to establish that it w ill suffer "immediate and irreparable injury" if the Court does not grant a temporary re stra in in g order. On October 15, 2007, BP notified Bulk that it "confirmed" through its in v e s tig a tio n that Bulk commingled motor fuels at BP-branded locations, and therefore, BP to ld Bulk that it would terminate the franchise "effective November 30, 2007." (Compl. ¶ 2 3 ; Ex. 4.) If the injury to BP was not so "immediate and irreparable" that it could wait six w e e k s between the confirmation of an alleged infringement and the termination of the a g re e m e n t, there is no reason to believe that the injury now is so "immediate and irreparable" th a t the Court needs to issue a temporary restraining order without first giving Bulk an o p p o rtu n ity to respond. Accordingly, the Court will deny BP's request for a temporary restrain in g order. H o w e v e r, the Court will wait to rule on the motion for a preliminary injunction until a f t e r the parties have been able to fully brief the matter. The briefing schedule will be in a c c o rd with Civil Local Rule 7.1(b).

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Case 2:07-cv-01085-RTR

Filed 12/07/2007

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Document 10

N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: BP's Motion for a Temporary Restraining Order and a Preliminary Injunction ( D o c k e t No. 4) is DENIED, in part. The Court denies the request for a temporary restraining o rd e r. The Court will rule on the motion for preliminary injunction after the matter is fully b rie f e d . D a te d at Milwaukee, Wisconsin this 7th day of December, 2007.

BY THE COURT s / Rudolph T. Randa Hon. Rudolph T. Randa C h ie f Judge

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