Bob Banner Associates Inc v. Whacko Inc et al
Filing
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ORDER OF PRELIMINARY INJUNCTION by Judge Manuel L. Real (pj)
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JOEL McCABE SMITH (State Bar No. 50973)
ELIZABETH L. SCHILKEN (State Bar No. 241231)
LEOPOLD, PETRICH & SMITH, P.C.
2049 Century Park East, Suite 3110
Los Angeles, California 90067-3274
Tel: (310) 277-3333 • Fax: (310) 277-7444
Email: jsmith@lpsla.com; eschilken@lpsla.com
Attorneys for Defendants and Counterclaimants
WHACKO, INC. and CAROL BURNETT, and
Counterclaimant MABEL CAT, INC.
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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BOB BANNER ASSOCIATES, INC., a
California corporation,
Plaintiff,
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CASE NO.: CV13-00083 R (VBKx)
ORDER OF PRELIMINARY
INJUNCTION
v.
WHACKO, INC., a California corporation;
CAROL BURNETT, an individual; and
DOES 1 through 100, inclusive,
The Honorable Manuel L. Real
Defendants.
__________________________________
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MABEL CAT, INC., a California
corporation; WHACKO, INC., a California
corporation; and CAROL BURNETT, an
individual,
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v.
Counterclaimants,
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BOB BANNER ASSOCIATES, INC., a
California corporation, LEGENDARY
ENTERTAINMENT ALLIANCE, LLC, a
California limited liability company,
previously sued herein as ROE 1, and ROES
2 - 100, inclusive,
Counterdefendants.
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[PROPOSED] ORDER OF PRELIMINARY INJUNCTION
LEOPOLD, PETRICH
& SMITH
A Professional Corporation
Proposed Order.doc
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The Court has GRANTED the Motion of Counterclaimants Mabel Cat, Inc.,
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Whacko, Inc., and Carol Burnett (“Counterclaimants”) for a Preliminary Injunction
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(“Motion”) based on Counterclaimants’ claims of false advertising and false
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designation of origin pursuant to 15 U.S.C. §1125(a), related to Counterdefendants
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Bob Banner Associates, Inc.’s and Legendary Entertainment Alliance, LLC’s DVD
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and musical album entitled A Carol Burnett Christmas (the “DVD” and “Album”).
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The Court has determined that Counterclaimants have demonstrated a likelihood of
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prevailing on the merits of their claims; there is a likelihood of irreparable harm to
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Counterclaimants absent injunctive relief; the balance of the equities militates in favor
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of injunctive relief; the public interest favors a preliminary injunction; and that
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Counterclaimants are thus entitled to a Preliminary Injunction.
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IT IS HEREBY ORDERED THAT:
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Counterdefendants Bob Banner Associates, Inc. and Legendary
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Entertainment Alliance, LLC (“Counterdefendants”) and their subsidiaries, officers,
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agents, servants, directors, employees, partners, representatives, successors, assigns,
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related companies, attorneys, and all persons acting in concert or participation with
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them, are RESTRAINED and ENJOINED, during the pendency of Counterclaimants’
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claims in this action, from displaying for sale or rental, marketing, advertising, selling,
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renting, or commercially distributing the DVD or Album or any of the contents
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thereof, under the title A Carol Burnett Christmas, on or through the Internet or in any
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other manner or in any other medium or wholesale or retail outlet, whether in
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electronic or hard copy form, or in any other manner.
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2.
This injunction shall take effect upon Counterclaimants’ posting a bond
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in the total sum of $10,000 for the payment of such costs and damages as may be
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incurred or suffered by any party who is found to have been wrongfully enjoined or
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restrained.
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[PROPOSED] ORDER OF PRELIMINARY INJUNCTION
LEOPOLD, PETRICH
& SMITH
A Professional Corporation
Proposed Order.doc
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IT IS HEREBY FURTHER ORDERED THAT:
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Within ten (10) days posting of the injunction bond relating to this
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Order of Preliminary Injunction, each Counterdefendant shall file with the Court and
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serve upon Counterclaimants’ counsel a report setting forth the manner and form in
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which Counterdefendants have complied with this Preliminary Injunction, including
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the list of all wholesalers and retailers to whom they have given notice of this
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injunction.
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SERVICE OF PROCESS
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A copy of this Order shall be served upon Counterdefendants via telecopier,
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e-mail, or Federal Express or similar delivery service by not later than the second
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business following the entry of this Order.
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IT IS SO ORDERED.
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Dated: August 26, 2013
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____________________________________________
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HON. MANUEL REAL
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UNITED STATES DISTRICT COURT
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[PROPOSED] ORDER OF PRELIMINARY INJUNCTION
LEOPOLD, PETRICH
& SMITH
A Professional Corporation
Proposed Order.doc
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PROOF OF SERVICE
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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
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I am employed in the County of Los Angeles, State of California. I am over the age of 18
years and not a party to the within action. My business address is 2049 Century Park East, Suite
3110, Los Angeles, California 90067-3274.
On August 26, 2013, I served the foregoing documents described as follows: [PROPOSED]
ORDER OF PRELIMINARY INJUNCTION on the interested parties in this action.
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by placing the original and/or a true copy thereof enclosed in (a) sealed envelope(s),
addressed as follows:
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SEE ATTACHED SERVICE LIST
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BY REGULAR MAIL: I deposited such envelope in the mail at 2049 Century Park East,
Suite 3110, Los Angeles, California 90067-3274. The envelope was mailed with postage
thereon fully prepaid. I am “readily familiar” with the firm’s practice of collection and
processing correspondence for mailing. It is deposited with the U.S. Postal Service on that
same day in the ordinary course of business. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or postage meter date is more than one
(1) day after date of deposit for mailing in affidavit.
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BY FACSIMILE MACHINE: I transmitted a true copy of said document(s) by facsimile
machine, and no error was reported. Said fax transmission(s) were directed as indicated on
the service list.
BY ELECTRONIC MAIL: I transmitted a true copy of said document(s) by electronic
mail, and no error was reported. Said electronic mail transmission(s) were directed as
indicated on the service list.
BY OVERNIGHT MAIL: I deposited such documents at the Federal Express Drop Box
located at 2049 Century Park East, Suite 3110, Los Angeles, California 90067-3274. The
envelope was deposited with delivery fees thereon fully prepaid.
BY PERSONAL SERVICE: I caused such envelope(s) to be delivered by hand to the above
addressee(s).
(Federal) I declare that I am employed in the office of a member of the Bar of this Court, at
whose direction the service was made. I declare under penalty of perjury under the laws of
the State of California that the foregoing is true and correct.
Executed on August 26, 2013, at Los Angeles, California.
/s/ Robin Black
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Robin Black
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Proposed Order.doc
SERVICE LIST
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David R. Schwarcz, Esq.
Kathryn Lee Boyd, Esq.
Darcy R. Harris, Esq.
Sherli Shamtoub, Esq.
Schwarcz, Rimberg, Boyd & Rader, LLP
6310 San Vicente Boulevard, Suite 360
Los Angeles, CA 90048
Counsel for Plaintiff and Counterdefendant
Bob Banner Associates, Inc. and
Counterdefendant Legendary Entertainment
Alliance, LLC
Tel: 323-302-9488
Fax: 323-931-4990
Email: dschwarcz@srbr-law.com
Email: kboyd@srbr-law.com
Email: dharris@srbr-law.com
Email: sshamtoub@srbr-law.com
David Aronoff, Esq.
Amber Henry, Esq.
Lathrop & Gage LLP
1888 Century Park East, Suite 1000
Los Angeles, CA 90067
Counsel for Counter-Defendant
Bob Banner Associates, Inc.
Tel: 310-789-4600
Fax: 310-789-4601
Email: daronoff@lathropgage.com
Email: ahenry@lathropgage.com
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Proposed Order.doc
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