Brian Lichtenberg LLC et al v. Alex & Chloe Inc et al, No. 2:2013cv06837 - Document 44 (C.D. Cal. 2013)
Court Description: ORDER DENYING 19 PLAINTIFFS EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER WITHOUT PREJUDICE by Judge Dean D. Pregerson. (lc). Modified on 10/25/2013 (lc).
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Brian Lichtenberg LLC et al v. Alex & Chloe Inc et al Doc. 44 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 BRIAN LICHTENBERG,LLC, a California limited liability company; BRIAN LICHTENBERG, an individual, 13 Plaintiff, 14 v. 15 16 17 18 19 20 ALEX & CHLOE, INC., a California corporation; CHRISTOPHER WALTER LICHTENBERG, an individual; MARKED SHOWROOM, LLC, a Californai limited liability company; JACQUELINE YI, an individual; TU TRAN, an individual KYLE MOCKETT, an individual; KAYTEE ENRIGHT, an individual, 21 22 Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-06837 DDP (PJWx) ORDER DENYING PLAINTIFFS’ EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER [Dkt. No. 19] 23 Presently before the court is Plaintiffs Brian Lichtenberg, 24 LLC and Brian Lichtenberg’s Ex Parte Application for a Temporary 25 Restraining Order. 26 parties, the court denies the Application. 27 I. 28 Having considered the submissions of the Background Plaintiff Brian Lichtenberg (“Brian”) designs clothing and Dockets.Justia.com 1 accessories and distributes his products through Brian Lichtenberg, 2 LLC. 3 brands, such as “Homiès” as a play on “Hermès” and “Bucci,” a 4 parody of “Gucci.” 5 font, and other elements of the luxury brand designs. 6 shirts, sweatshirts, beanies, and hats bearing the various spoof 7 designs. 8 celebrities and recognized by the public as Brian’s work. 9 Brian’s designs include a series of parodies of designer Brian’s spoof or parody logos mimic the style, Brian sells Brian alleges that his designs are frequently worn by Brian’s younger brother, Defendant Christopher Walter 10 Lichtenberg (“Chris”) is the CEO of Defendant Alex and Chloe, Inc. 11 (“A&C”), which operates a website of its own (the “AC website”). 12 In 2011, Brian allowed Chris to take orders for Brian’s apparel on 13 the AC website. 14 collect from the consumer and distribute fifty percent of the 15 proceeds to Brian. 16 promotional pictures of Brian’s products directly on the AC website 17 in an effort to increase traffic to the site. 18 Brian would fill orders taken by Chris, who would In mid-2011, Brian allowed Chris to post Brian alleges that in early 2012, he came up with the idea to 19 parody the luxury brand “Balmain,” and created a drawing for a 20 design in the style of the Balmain logo but reading “Ballin Paris” 21 (the “Ballin Design,” “Design,” or “Ballin”). 22 showed the Design to Chris in confidence in March 2012. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 Brian claims that he 1 In late 2012 or early 2013, Brian hired Chris as an employee.1 2 Chris performed graphic design duties and provided assistance with 3 marketing and promotional activities. 4 Chris helped Brian craft and send an e-mail reading, “Ballin’ With 5 My Homies” to Brian’s fashion industry contacts to promote Brian’s 6 forthcoming line of Ballin apparel.2 7 As part of these duties, Between January 21 and January 31 2013, Chris called in sick 8 to work several times. During that time, Chris contacted Brian’s 9 manufacturer in China. (Declaration of Flair Xu.) Chris placed 10 large orders for labels and garments with the same measurements and 11 specifications as Brian’s products, purportedly for use in a new 12 clothing line that would be sold “with [Brian]” but on the A&C 13 label. 14 allegedly sent samples of A&C-labeled Ballin apparel to Brian’s 15 industry contacts.3 16 (Xu Decl. ¶¶ 19-21.) During that same ten day span, Chris On February 1, 2013, Chris and/or A&C posted images of apparel 17 featuring the Ballin design on social media. 18 apparel was listed for sale on the AC website soon after. A&C-labeled Ballin At some 19 20 21 22 23 24 1 The record is unclear on when Chris became an employee. Brian’s declaration states both that Chris began work on January 21, 2013 and that Brian was able to afford Chris’ services in December 2012. Brian’s declaration further states that Chris “helped” with a “Ballin” marketing campaign in November. The Application for a TRO claims that Chris was an employee in November 2012, but also that Chris became a full-time employee in January 2013. 2 25 26 27 28 While the Application asserts that Chris was assigned to convert Brian’s hand-drawn Ballin Design into electronic format, the portion of Brian’s declaration cited does not support that contention. 3 At least one of these contacts, Ben Taylor, later forwarded his correspondence with Chris to Brian. (B. Lichtenberg Decl., Ex. 25.) 3 1 later point in time, Brian brought his own Ballin apparel to market 2 on his BLTEE label. 3 identical apparel bearing the Ballin Design. 4 Both Brian and Chris currently sell virtually As early as March 14, 2013, Chris and/or A&C sent cease and 5 desist letters to Brian’s distributors, claiming that Chris 6 invented the Ballin Design and demanding that distributors cease 7 selling Brian’s Ballin products. 8 social media presence, with which he frequently claimed to be the 9 author of the design and stated that Brian stole the Ballin design Chris also maintained an active 10 from him. 11 Ballin Paris design was made by us here at [A&C], not#LyinBrian lol 12 . . . .”.) 13 (See, e.g. id. ¶ 131 (“no confusion necessary. The Brian frequently posted images of celebrities and models 14 wearing Brian’s Ballin merchandise on social media pages. 15 some of these personalities expressly granted Brian permission to 16 post the photographs. 17 several cases, identical images soon appeared on A&C’s pages, 18 usually identifying the garments depicted as “an original Alex & 19 Chloe Ballin Paris design,” “by Alex & Chloe,” or other words to 20 that effect. 21 authorize Chris to use the images. 22 depicted in an image posted to an A&C website went so far as to 23 comment that she was wearing one of Brian’s sweatshirts, not an A&C 24 product. 25 design including this sweatshirt you are wearing is an Original and 26 Official design by [A&C] NOT [Brian] . . . .” 27 28 (B. Lichtenberg Decl. ¶¶ 126, 133.) (Id. ¶¶ 133-144.) (Id. ¶ 131.) At least In The subjects of the photos did not In one instance, a model A&C responded, “[a]ctually the BALLIN PARIS (Id.) In March 2013, Plaintiffs filed a suit against Chris and A&C in Los Angeles County Superior Court. 4 Plaintiffs obtained a 1 temporary restraining order, but were not successful in their 2 motion for a preliminary injunction. 3 their state court action and, on September 17, 2013, filed the 4 instant suit in this court. 5 causes of action against Defendants, including causes of action 6 under state law and the Lanham Act, 15 U.S.C. §1125. 7 now seek a Temporary Restraining Order (“TRO”). 8 II. 9 Plaintiffs then dismissed Plaintiffs’ complaint alleges seven Plaintiffs Legal Standard A temporary restraining order is meant to be used only in 10 extraordinary circumstances. To establish entitlement to a TRO, 11 the requesting party must show (1) that she is likely to succeed 12 on the merits, (2) that she is likely to suffer irreparable harm 13 in the absence of preliminary relief, (3) that the balance of 14 equities tips in her favor, and (4) that an injunction is in the 15 public interest. 16 7, 20 (2008). 17 combination of probable success on the merits and the possibility 18 of irreparable harm, or (2) raises serious questions and the 19 balance of hardships tips in favor of a TRO. 20 Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). 21 “These two formulations represent two points on a sliding scale in 22 which the required degree of irreparable harm increases as the 23 probability of success decreases.” 24 however, the party must demonstrate a “fair chance of success on 25 /// 26 /// 27 /// 28 /// Winter v. Natural Res. Defense Counsel, 555 U.S. A TRO may be warranted where a party (1) shows a 5 Id. See Arcamuzi v. Under both formulations, 1 2 the merits” and a “significant threat of irreparable injury.”4 Id. III. 3 Discussion Plaintiffs have provided extensive evidentiary support for 4 their Application in the form of declarations, e-mails, 5 photographs, and screen shots spanning approximately one thousand 6 pages. 7 thoroughly. 8 Application focuses on unfair competition under the Lanham Act. 9 Plaintiffs’ Complaint, however, lumps together Lanham Act claims Plaintiffs’ legal theories, however, are developed less Much of Plaintiffs’ memorandum in support of their 10 for trademark infringement, trade dress infringement, false 11 designation of origin, and trademark dilution into one single 12 cause of action. 13 focus on the trademark claim. 14 entitled to protection of its unregistered trademark names . . . 15 .”).) 16 Plaintiff’s Application for a TRO appears to (App. at 16 (“Plaintiffs are The analysis for an unregistered trademark is similar to that 17 for trade dress. 18 F.3d 819, 824 (9th Cir. 1993). 19 unregistered trademark or trade dress is nonfunctional, is 20 distinctive or has acquired secondary meaning, and that a 21 defendant’s use of a similar mark or trade dress is likely to 22 confuse consumers. 23 24 Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 Plaintiffs must show that an Id. at 824-25. Plaintiffs’ Application and Complaint, however, do not clearly identify the particular mark or trade dress that forms the 25 4 26 27 28 Even under the “serious interests” sliding scale test, a plaintiff must satisfy the four Winter factors and demonstrate “that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 6 1 basis of Plaintiffs’ unfair competition claim. Plaintiffs’ 2 Application, for example, refers to unregistered marks “Ballin 3 Paris,” “Homies,” “Fèline,” “Caninè,” and “Bucci,” but also the 4 “cut, color, style, fabric, stitching, label sizes, text, logo 5 placement, font, and packaging” of Brian’s products. 6 16.) 7 ‘Ballin Paris’” (Compl. ¶ 102,), but immediately thereafter refers 8 to wrongful appropriation of “fabrics, stitching, and label 9 location” (Compl. ¶ 103), and yet elsewhere defines the “BRIAN (App. at 14, The complaint refers in one place to “the name ‘Ballin’ and 10 LICHTENBERG Trademark” as comprised of “fashion apparel, 11 merchandise and accessories.” (Compl. ¶ 22.) 12 sense of which marks or trade dress Plaintiffs seek to protect, it 13 is impossible for this court to analyze functionality, 14 distinctiveness, or likelihood of confusion, and thus to determine 15 the likelihood that Plaintiffs will succeed on the merits of any 16 of their infringement claims.5 17 Without a better Plaintiffs also seek a TRO on the basis of their Lanham Act 18 false advertising claim, California Uniform Trade Secrets Act 19 claim, and intentional interference with contract and prospective 20 economic relations claims. 21 contesting authorship of the Ballin Design, Defendants’ opposition 22 does not address these claims. 23 far less attention to these claims than the infringement claims, 24 the record presented could support a finding of likely success on Beyond generally and conclusorily While Plaintiffs themselves devote 25 26 27 28 5 Plaintiffs cannot possibly hope, for example, to succeed on a claim that they have a claim to a trademark in “fashion apparel, merchandise and accessories.” Some combination of the various elements identified above, however, might conceivably warrant trademark or trade dress protection. 7 1 the merits. There is ample evidence that Chris appropriated 2 Brian’s promotional photos and made statements claiming or 3 suggesting that the apparel depicted therein was his, not Brian’s. 4 See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 5 (9th Cir. 1997) (listing elements of Lanham Act false advertising 6 claim). 7 Brian’s customers, encouraged them to stop doing business with 8 Brian, and claimed Brian is a thief. 9 Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (2003) (listing It also appears beyond dispute that Chris contacted See Korea Supply Co. v. 10 elements of intentional interference with prospective economic 11 advantage claim); Quelimane Co. v. Stewart Title Guaranty Co., 19 12 Cal. 4th 26, 55 (1998) (listing elements of interference with 13 contract claim). 14 Nevertheless, the court does not address Plaintiffs’ 15 likelihood of success in further depth because Plaintiffs have 16 failed to adequately show irreparable harm. 17 irreparable harm, courts should take into account whether a movant 18 “proceeded as quickly as it could have” in seeking a TRO. 19 Inc. v. Samsung Electronics Co., Ltd., 678 F.3d 1314, 1325 (Fed. 20 Cir. 2012) (analyzing a preliminary injunction). 21 stage, courts consider whether the movant would have been able to 22 file a noticed preliminary injunction motion had it acted 23 diligently. 24 2:11–CV–02873–MCE, 2011 WL 5374748, at *4 (E.D. Cal. Nov.4, 2011) 25 (denying application for TRO for twenty-five day delay); Mammoth 26 Specialty Lodging, LLC v. We-Ka-Jassa Inv. Fund, LLC, CIVS10-0864 27 LKK/JFM, 2010 WL 1539811, at *2 (E.D. Cal. Apr. 16, 2010); Rosal In analyzing Apple, At the TRO See, e.g., Occupy Sacramento v. City of Sacramento, 28 8 1 v. First Fed. Bank of California, No. C 09-1276 PJH, 2009 WL 2 837570, at *2 (N.D. Cal. Mar. 26, 2009). 3 Here, the vast majority of Chris’ alleged misappropriation of 4 photographs and wrongful contact with Brian’s distributors and 5 customers appears to have taken place in between February and 6 April 2013, approximately six to eight months ago. 7 recent such instance appears to have occurred on May 18, 2013, 8 over five months ago. 9 Plaintiffs attribute the roughly thirty-day delay between the The most (Declaration of Reda Bouaissa ¶ 66.)6 While 10 filing of their complaint and the instant Application to the 11 necessity of preparing voluminous documentary support, Plaintiffs 12 make no attempt to explain why they did not seek preliminary 13 relief here until six to eight months after the alleged wrongful 14 acts occurred.7 15 any evidence, that Chris’ alleged wrongful acts persisted beyond 16 May 2013 or are continuing. 17 conclude that Plaintiffs will suffer irreparable harm in the 18 absence of a TRO. 19 /// 20 /// Plaintiffs do not contend, nor has the court found Accordingly, the court cannot 21 6 22 23 24 25 26 27 28 The court notes that Plaintiffs’ citations to the record in support of their showing of irreparable harm are extremely unfocused. Plaintiffs cite, for example, over a dozen exhibits and approximately one hundred paragraphs of witness declarations for the proposition that Chris’ actions are currently doing injury to Brian’s reputation. Several of Plaintiffs’ citations, however, are completely unrelated to that claim. (See, e.g., B. Lichtenberg Decl. ¶ 72 (“On or about January 25, 2013, I learned that Chris was still sick from the day before and was ‘bed ridden’ and feeling horrible.”) 7 The state court denied Plaintiffs preliminary injunctive relief on April 19, 2013. (Defendendants’ Request for Judicial Notice, Ex. J.) 9 1 2 IV. Conclusion For the reasons stated above, Plaintiffs’ Application for a 3 Temporary Restraining Order is DENIED, without prejudice. 4 IT IS SO ORDERED. 5 6 7 Dated: October 25, 2013 DEAN D. PREGERSON United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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