Jumbo Bright Trading Limited et al v. The Gap Inc et al, No. 2:2012cv08932 - Document 21 (C.D. Cal. 2012)
Court Description: ORDER DENYING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND AN ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION 5 .The court notes that this denial is without prejudice, and finds that this matter is more suitable for resolution upon a noticed motion for a preliminary injunction by Judge Dean D. Pregerson (lc). Modified on 10/25/2012 (lc).
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Jumbo Bright Trading Limited et al v. The Gap Inc et al Doc. 21 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 JUMBO BRIGHT TRADING LIMITED, a Hong Kong corporation; CHARLES ANTHONY PHILIP POZZI, 13 Plaintiffs, 14 v. 15 THE GAP, INC., 16 Defendant. 17 18 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-08932 DDP (MANx) ORDER DENYING PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER AND AN ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION [Docket No. 5] 19 20 Plaintiffs Jumbo Bright Trading Limited and Charles Anthony 21 Philip Pozzi (collectively “Plaintiffs”) have sued The GAP, Inc. 22 (“Defendant”) for various claims including trademark infringement, 23 patent infringement, and the right of publicity. 24 Complaint. 25 loafers, which are allegedly confusingly similar to Plaintiffs’ CP 26 Charles Philip loafers. 27 Plaintiffs’ Ex Parte Application for a Temporary Restraining Order 28 and an Order to Show Cause Re: Preliminary Injunction (“Motion”). See generally The dispute arises from Defendant’s new Phillip Id. Presently before the court is Dockets.Justia.com 1 Because Plaintiffs offer no evidence of irreparable harm, the court 2 DENIES their Motion in its entirety.1 3 I. Legal Standard 4 An ex parte Temporary restraining order (“TRO”) may be granted 5 when it is shown “that immediate and irreparable injury, loss, or 6 damage will result to the movant before the adverse party can be 7 heard in opposition.” 8 the preliminary injunction factors in deciding whether to grant a 9 TRO. Fed. R. Civ. P. 65(b)(1)(A). Courts apply See Stuhlbarg Int'l Sales Co. v. John D. Brushy & Co., 240 10 F.3d 832, 839 n. 7 (9th Cir. 2001). 11 establish that he is likely to succeed on the merits, that he is 12 likely to suffer irreparable harm in the absence of preliminary 13 relief, that the balance of equities tips in his favor, and that an 14 injunction is in the public interest.” 15 Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011) 16 (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 17 (2008)). 18 to suffer immediate and irreparable harm absent a TRO,” a court 19 need not consider the other three factors. 20 Gonzalez, No. 5:12-CV-00576-LHK, 2012 WL 538266, at *3 (N.D. Cal. 21 Feb. 17, 2012) (quotation omitted). 22 remedy that may only be awarded upon a clear showing that the 23 plaintiff is entitled to such relief.” 24 F. Supp. 2d 1164, 1168 (C.D. Cal. 2011). 25 II. Irreparable Harm Analysis A party requesting a TRO “must Network Automation, Inc. v. If a plaintiff fails to “clearly show that it is likely ConocoPhillips Co. v. “A TRO is an extraordinary Niu v. United States, 821 26 27 28 1 The parties appear to dispute whether Defendant received proper service of Plaintiffs’ Motion. Because Plaintiffs’ Motion is denied, however, the court need not determine whether proper service occurred. 2 1 “Speculative injury does not constitute irreparable injury 2 sufficient to warrant granting a preliminary injunction. 3 plaintiff must do more than merely allege imminent harm sufficient 4 to establish standing; a plaintiff must demonstrate immediate 5 threatened injury as a prerequisite to preliminary injunctive 6 relief.” 7 668, 674 (9th Cir. 1988) (emphasis in original, citations omitted). 8 Demonstrating irreparable harm requires evidence. 9 U.S. at 21. 10 A Caribbean Marine Serv. Co., Inc. v. Baldrige, 844 F.2d See Winter, 555 Previously, the Ninth Circuit presumed irreparable harm in 11 trademark infringement cases if a plaintiff showed a likelihood of 12 success on the merits. 13 Entm't Corp., 174 F.3d 1036, 1066 (9th Cir. 1999). 14 Winter the Supreme Court held that, “[i]ssuing a preliminary 15 injunction based only on a possibility of irreparable harm is 16 inconsistent with our characterization of injunctive relief as an 17 extraordinary remedy that may only be awarded upon a clear showing 18 that the plaintiff is entitled to such relief.” 19 After Winter, the Ninth Circuit made clear that courts could no 20 longer presume irreparable harm after finding a likelihood of 21 success on the merits in copyright cases. 22 Inc. v. Precision Lift, Inc., 654 F.3d 989, 998 (9th Cir. 2011). 23 As far is this court is aware, every district court in the Ninth 24 Circuit that has examined the issue after Flexible Lifeline, along 25 with a number that analyzed the issue before that case, has either 26 found or at least suggested that irreparable harm cannot be 27 presumed in trademark cases as well. 28 Vital Pharm., Inc., 617 F. Supp. 2d 1051, 1065 (E.D. Cal. 2009) See Brookfield Commc’ns, Inc. v. W. Coast 3 However, in 555 U.S. at 22. Flexible Lifeline Sys., See e.g. CytoSport, Inc. v. 1 aff'd, Cytosport, Inc. v. Vital Pharm., Inc., 348 F. App'x 288 (9th 2 Cir. 2009); Herb Reed Enters., LLC v. Florida Entm't Mgmt., Inc., 3 No. 2:12-CV-00560-MMD-GWF, 2012 WL 3020039, at *15 (D. Nev. July 4 24, 2012); BoomerangIt, Inc. v. ID Armor, Inc., No. 5:12-CV-0920 5 EJD, 2012 WL 2368466, at *4 (N.D. Cal. June 21, 2012); Seed Servs., 6 Inc. v. Winsor Grain, Inc., No. 1:10-CV-2185 AWI GSA, 2012 WL 7 1232320, at *4 (E.D. Cal. Apr. 12, 2012); ConocoPhillips, 2012 WL 8 538266, at *2-3; AFL Telecomms. LLC v. SurplusEQ.com, Inc., No. CV 9 11-01086-PHX-FJM, 2011 WL 4102214, at *3 (D. Ariz. Sept. 14, 2011) 10 reconsideration denied, No. CV 11-1086-PHX-DGC, 2011 WL 5547855 (D. 11 Ariz. Nov. 15, 2011); Mortgage Elec. Registration Sys., Inc. v. 12 Brosnan, No. C 09-3600 SBA, 2009 WL 3647125, at *8 (N.D. Cal. Sept. 13 4, 2009); Volkswagen AG v. Verdier Microbus & Camper, Inc., No. C 14 09-00231 JSW, 2009 WL 928130, at *2 (N.D. Cal. Apr. 3, 2009). 15 Plaintiffs first argue that they are entitled to a presumption 16 of irreparable harm, because they have shown a likelihood of 17 success on the merits for their trademark claim. 18 Memorandum of Points and Authorities in Support of Ex Parte 19 Application for a Temporary Restraining Order at 17:19-18:18, 20 Docket No. 10.)2 21 former law. Plaintiffs, however, do offer some evidence of 22 irreparable harm. 23 are buying [Defendant’s] loafers assuming they meet Plaintiffs’ 24 quality standards and they do not.” 25 Although the irreparable harm section of their brief does not cite (Plaintiffs’ For the reasons discussed, Plaintiffs rely on Plaintiffs claim that, “[e]very day consumers (Docket No. 10 at 19:1-2.) 26 27 28 2 In violation of local rules, Plaintiffs did not e-file their reply brief. C.D. Cal. L.R. 5-4.1. In light of the time pressures of a TRO motion, the court exercised its discretion and accepted the brief. 4 1 it, Plaintiffs have provided a letter that their distributor wrote 2 to Defendant, which claims that Defendant’s loafers were confusing 3 customers and diminishing Plaintiffs’ sales. 4 Docket No. 10-1.) 5 support these assertions. 6 knew customers had been confused, nor does it specify any actual 7 lost revenues that have occurred since Defendant’s product was 8 introduced. 9 only a speculative concern: “[O]ur customer stores. . . are Id. (Bates Decl. Ex. O., However, the letter provides no specifics to Id. It does not explain how its author Indeed, the letter’s language seems to express 10 concerned that this blatant copy of a unique design. . . will 11 infringe on their sales.” 12 “demonstrate” that there is an “immediate threatened injury.” 13 Caribbean Marine, 844 F.2d at 674; see also Overstreet ex rel. 14 Nat'l Labor Relations Bd. v. W. Prof'l Hockey League, Inc., No. CV 15 09-0591 PHX ROS, 2009 WL 2905554, at *8 (D. Ariz. Sept. 4, 2009) 16 (explaining that “clear evidence, not speculation” is required to 17 support allegations of “irreparable harm”). 18 not met there burden.3 19 III. Conclusion 20 Id. These conclusory statements do not See Plaintiffs have, thus, For the reasons discussed, the court DENIES Plaintiffs’ Motion 21 in its entirety. 22 /// 23 /// 24 /// 25 /// 26 3 27 28 Plaintiffs also cite a blog post from July 31, 2012, as proof that Defendant’s products will confuse customers. (Memo at 13:25.) Plaintiffs purport to provide a copy of this post at Exhibit R to the Bates declaration. No such exhibit, however, could be found by the court. 5 1 The court notes that this denial is without prejudice, and 2 finds that this matter is more suitable for resolution upon a 3 noticed motion for a preliminary injunction. 4 5 IT IS SO ORDERED. 6 7 8 Dated:October 25, 2012 DEAN D. PREGERSON United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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