ProtectMarriage.com - Yes on 8 v. Courage Campaign et al, No. 2:2010cv00132 - Document 15 (E.D. Cal. 2010)
Court Description: ORDER denying 2 Motion for TRO signed by Senior Judge Lawrence K. Karlton on 1/20/10. (Kaminski, H)
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ProtectMarriage.com - Yes on 8 v. Courage Campaign et al Doc. 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 PROTECTMARRIAGE.COM YES ON 8, a PROJECT OF CALIFORNIA RENEWAL, 11 NO. CIV. S-10-132 LKK/DAD 12 Plaintiff, 13 v. O R D E R 14 COURAGE CAMPAIGN, COURAGE CAMPAIGN INSTITUTE, 15 Defendants. 16 / 17 This is a trademark dispute. Plaintiff seeks a temporary 18 restraining order enjoining defendant from using the allegedly 19 infringing mark. For the reasons stated below, the court concludes 20 that 21 defendant’s use of the mark is protected under the First Amendment, 22 in that the use is relevant to an expressive parody and the use is 23 not explicitly misleading. Plaintiff’s motion is therefore denied. 24 I. BACKGROUND plaintiff is unlikely to overcome the conclusion that 25 In 2008, the California Electorate passed Proposition 8, which 26 amended the state constitution to provide that “Only marriage 1 Dockets.Justia.com 1 between a man and a woman is valid or recognized in California.” 2 California Constitution Art. I, § 7.5. 3 Renewal 4 “ProtectMarriage.com 5 Proposition 6 passage, and has since informed the public about challenges to 7 Proposition 8 and raised funds to defend against such challenges. 8 Perhaps most recently, plaintiff has intervened as a defendant in 9 a federal constitutional challenge to Proposition 8 currently being is 8 the on nonprofit - the Yes corporation on ballot, 10 tried 11 Schwarzenegger, 09-cv-02292. 12 in a Northern Plaintiff California 8.” Plaintiff campaigned District which of for operates helped place Proposition California, Perry 8’s v. In all of the above activities, plaintiff has used a logo it 13 refers to as the “ProtectMarriage Trademark.” This logo depicts 14 four stylized silhouettes: two larger figures, one in pants and one 15 in a dress, standing on either side of two smaller figures, also 16 one in pants and one in a dress. 17 heterosexual family. 18 This graphic is often, but not always, presented in blue, under an 19 arcing banner reading “Yes on 8 Protect Marriage.” In this banner, 20 the 8 is centered and in larger type. 21 following rendition: 22 //// 23 //// 24 //// 25 //// 26 //// Thus, the logo represents a All four figures have their arms raised. 2 Plaintiff submits the 1 2 3 4 5 6 7 8 9 10 Defendant is a nonprofit organization that supports a right 11 to homosexual 12 opposing 13 Schwarzenegger began on January 11, 2010, defendant began operating 14 a 15 prop8trialtracker.com. 16 admittedly 17 prop8trialtracker logo also features four stylized silhouettes. 18 While plaintiff’s logo depicts the “parent” figures in pants and 19 a dress, both “parent” figures in defendant’s logo wear dresses, 20 suggesting same-sex parents. The text in 21 the banner in defendant’s logo has been 22 replaced to read “Prop 8 Trial Tracker.” 23 On January 19, 2010 (the day the TRO was 24 filed), the image appeared on the website 25 as the image to the left. views website marriage. on Proposition dedicated derived Thus, to plaintiff 8. providing When and defendant trial coverage of Prop8trialtracker.com from the “ProtectMarriage” 26 3 in Perry the uses have v. trial, a logo. logo The 1 Defendant has filed an opposition to plaintiff’s motion. 2 court concludes that no hearing on the matter is necessary, and 3 resolves the motion on the papers.1 II. STANDARD 4 5 The Fed. R. Civ. P. 65 or authority temporary to issue restraining either 6 preliminary 7 Ordinarily, a plaintiff seeking a preliminary injunction must 8 demonstrate that it is “[1] likely to succeed on the merits, [2] 9 that he is likely to suffer irreparable harm in the absence of 10 preliminary relief, [3] that the balance of equities tips in his 11 favor, and [4] that an injunction is in the public interest.” 12 Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th 13 Cir. 2009) (quoting Winter v. Natural Res. Def. Council, 129 S. Ct. 14 365, 374 (2008)). 15 order are largely the same. 16 Brush & Co., 240 F.3d 832, 839 (9th Cir. 2001); see also Wright and 17 Miller, 11A Fed. Prac. & Proc. Civ. § 2951 (2d ed.). 18 injunctions provides orders. Am. The requirements for a temporary restraining Stuhlbarg Int’l Sales Co. v. John D. In the trademark context, however, the likelihood of success 19 on the merits largely determines the remaining factors. The Ninth 20 Circuit has held that in trademark cases, “irreparable injury may 21 be presumed from a showing of likelihood of success on the merits.” 22 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 23 873, 877 (9th Cir. 2009) (quotations omitted). 24 in turn influences the balancing of hardships. This presumption Id. Finally, 25 1 26 Because the court denies the request for a TRO, the court does not address whether venue is proper in this district. 4 1 “avoiding confusion 2 protection, is itself a public interest that is often demonstrated 3 by likelihood of success. 4 Milon-Digiorgio Enters., 559 F.3d 985, 993 (9th Cir. 2009). 5 Marlyn Nutraceuticals and Internet Specialties West were decided 6 subsequent 7 Accordingly, the court’s analysis is limited to the first Winter 8 factor. to to Winter, consumers,” the goal of trademark Internet Specialties West, Inc. v. and cited Winter in their Both analysis. III. ANALYSIS 9 10 Plaintiff’s complaint alleges claims under section 43(a) of 11 the Lanham Act, 15 U.S.C. § 1125(a), and under California unfair 12 competition and common law trademark infringement. 13 motion for a temporary restraining order refers only the to Lanham 14 Act trademark claim. Plaintiff’s 15 “Trademark law aims to protect trademark owners from a false 16 perception that they are associated with or endorse a product.” 17 Mattel Inc. v. Walking Mt. Prods., 353 F.3d 792, 806 (9th Cir. 18 2003). 19 infringement are ownership of a protectable mark and likelihood of 20 confusion arising from defendant’s use of the mark.2 Applied Info. 21 Scis. Corp. v. eBay, Inc., 511 F.3d 966, 969 (9th Cir. 2007). 22 this case, the mark is protectable in that it is suggestive and The traditional elements of a claim for trademark In 23 24 25 26 2 Plaintiff’s claim is “traditional” in this regard, in that the alleged harm is likelihood of confusion. Trademark law also protects against other types of harm, such as dilution even when there is no likelihood of confusion. Plaintiff has not alleged such harm in the instant motion. 5 1 thus inherently distinctive. 2 unregistered, registration is not a prerequisite to suit. 3 Pesos v. Taco Cabana, 505 U.S. 763, 768 (1992). 4 public use of the mark indicates plaintiff’s ownership thereof. 5 Sengoku Works v. RMC Int’l, 96 F.3d 1217, 1219 (9th Cir. 1996). 6 The second element of Id. at 970. a claim for While the mark is Two Plaintiff’s prior infringement is the 7 likelihood of confusion as to the source, sponsorship, or approval 8 of the allegedly infringing product. 9 Penguin Books USA, Inc., 109 F.3d 1394, 1405 (9th Cir. 1997). Dr. Seuss Enters., L.P. v. One 10 way to negate the element of confusion is to show that the 11 allegedly infringing mark is a parody of the original mark, and 12 that this parody is unlikely to show confusion.3 Id. 13 Circuit parody 14 technically a defense to a trademark infringement claim. 15 also Hard Rock Cafe Licensing Corp. v. Pacific Graphics, Inc., 776 16 F. Supp. 1454, 1462 (W.D. Wash. 1991); but see E.S.S. Entm’t 2000, 17 Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1099 (9th Cir. 2008) 18 (implicitly treating parody as a defense). 19 has explained that for this reason, The Ninth is not Id., see The Ninth Circuit cases on the issue concern “artistic” 20 parodies of trademarks. Rock Star Videos, 547 F.3d at 1099, 21 Walking Mt. Prods., 353 F.3d at 807, Mattel, Inc. v. MCA Records, 22 296 F.3d 894, 900 (9th Cir. 2002). Under a test borrowed from the 23 24 25 26 3 In this regard, the Lanham Act is unlike the Copyright Act. The Copyright Act includes a specific statutory provision defining “fair use” as non-infringing, 17 U.S.C. § 107, and this statutory provision protects parody. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). 6 1 Second Circuit, an artistic work’s use of a mark does not violate 2 the Lanham Act unless the use “has no artistic relevance to the 3 underlying work whatsoever” or the use “explicitly misleads as to 4 the source or the content of the work.” 5 F.3d at 807 (quoting Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 6 1989)). 7 Rock Star Videos, 547 F.3d at 1100. 8 a strip club’s trademark logo was entitled to First Amendment 9 protection even though the video game was not primarily “about” the 10 club, and was instead “about,” at most, the club’s neighborhood. 11 Id. 12 Walking Mt. Prods., 353 The Ninth Circuit has taken “no relevance” literally. Thus, a video game’s use of In this case, the logo itself is artistic. website, 13 broader 14 expressive of a political idea, and both political and artistic 15 expression are protected by the First Amendment. Rock Star Videos, 16 547 F.3d at 1099 (parody defense rooted in the First Amendment). 17 Defendant’s use of the mark has relevance to the expressive 18 message, 19 specifically, opposition to recent California efforts to limit the 20 right to such marriages. 21 modification of the “father” figure in the original mark to depict 22 a second “mother.” 23 as to the source of the work. 24 misdirection is obviated by the images and text that uniformly 25 accompany defendant’s use of the mark, namely, photos of homosexual 26 couples namely, together while perhaps support for not artistic, Moreover, the homosexual is undeniably marriages, and This support is expressed by the Further, the mark does not explicitly mislead with text Any potential for confusion or explicitly 7 endorsing homosexual 1 marriage. C.f. Rogers, 2 circumstances 3 Plaintiff is unlikely to succeed in showing that a visitor to the 4 prop8trialtracker website is likely to be confused as to whether 5 plaintiff is affiliated with the site. 6 at 1100. that might 875 F.2d at constitute 999-1000 explicit (discussing misdirection). Rock Star Videos, 547 F.3d 7 The court further notes that the four parody cases relied upon 8 by plaintiff all concerned cases in which a protected mark was used 9 to sell a product. Hard Rock Cafe Licensing Corp. v. Pacific 10 Graphics, Inc., 776 F. Supp. 1454 (W.D. Wash. 1991) (“Hard Rain 11 Cafe” t-shirts), Nabisco Brands, Inc. v. Kaye, 760 F. Supp. 25 (D. 12 Conn. 1991) (“A.2” steak sauce), 13 Novak, 648 F. Supp. 905, 907 (D. Neb. 1986) (“mutant of Omaha” 14 shirts and other items), Gucci Shops, Inc. v. R. H. Macy & Co., 446 15 F. Supp. 838 (S.D.N.Y. 1977) (“Gucchi Goo” diaper bags). Plaintiff 16 provides no indication of similar economic activity here. 17 Mutual of Omaha Ins. Co. v. When use of a trademark is a protected parody under the Rogers 18 rule, further 19 unnecessary. 20 Alternatively, even if Rogers does not apply to this case, it 21 appears 22 defendant’s use of the mark are sufficient to dispel any possible 23 consumer confusion. 24 succeed on the merits of its trademark infringement claim. that analysis Rock the Star text the trademark Videos, and images 547 F.3d that infringement at 1098, uniformly is 1101. accompany For these reasons, plaintiff is unlikely to IV. CONCLUSION 25 26 of For the reasons stated above, 8 plaintiff’s motion for a 1 temporary restraining order is DENIED. 2 IT IS SO ORDERED. 3 DATED: January 20, 2010. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9
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