Feldenkrais Guild of North America v. Wildman et al, No. 4:2018cv02340 - Document 38 (N.D. Cal. 2018)

Court Description: ORDER GRANTING PRELIMINARY INJUNCTION re 26 Order on Motion for TRO.Feldenkrais Guild of North America shall place security in the amount of $5,000.00 with the Court for payment of any damages any person may be entitled to recover as a result of an improper or wrongful restraint order hereunder. Proof of such undertaking shall be filed no later than 5/29/2018. Signed by Judge Yvonne Gonzalez Rogers on 5/23/18. (fs, COURT STAFF) (Filed on 5/23/2018)
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Feldenkrais Guild of North America v. Wildman et al Doc. 38 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FELDENKRAIS GUILD OF NORTH AMERICA, Plaintiff, 8 vs. 9 10 ORDER GRANTING PRELIMINARY INJUNCTION FRANK WILDMAN, ET AL., Defendants. 11 United States District Court Northern District of California CASE NO. 18-cv-2340-YGR 12 Plaintiff Feldenkrais Guild of North America (“FGNA”) filed its complaint alleging 13 trademark infringement and breach of contract, as well as its ex parte motion for a temporary 14 restraining order and order to show cause for a preliminary injunction against defendants Frank 15 Wildman and Feldenkrais Movement Institute. (Dkt. Nos. 1, 19.) On May 1, 2018, the Court 16 granted the temporary restraining order and issued its Order to Show Cause Why A Preliminary 17 Injunction Should Not Issue. (Dkt. No. 26.) The parties filed their response and reply, and the 18 matter came on for hearing on May 15, 2018. 19 The Court, having read and considered the papers and pleadings on file, the evidence 20 submitted in support and in opposition, and the arguments of the parties, and for the reasons stated 21 herein, GRANTS a Preliminary Injunction under the terms set forth below.1 22 I. SUMMARY OF FACTS 23 FGNA is a not-for-profit membership association that promotes and supports the 24 Feldenkrais Method® of somatic education and its practitioners. (Declaration of Nancy Haller, 25 ¶ 3.) The purposes of the FGNA include increasing public awareness of the Feldenkrais Method® 26 of somatic education, certifying and providing opportunities for continuing education of 27 1 28 The Court notes that it has set an expedited schedule for trial on the merits of the complaint. (See Dkt. No. 36.) Dockets.Justia.com 1 practitioners, and protecting the quality of the Feldenkrais® work and research in the effectiveness 2 of the Feldenkrais Method® of somatic education. (Id.) FGNA first began certifying 3 Feldenkrais® practitioners in 1989. There are about 1300 current members of the FGNA, 4 including over 1150 members offering services throughout the United States. (Id. ¶ 6.) 5 A. FGNA’s Trademarks, Service Marks, and Certification Marks 6 FGNA has been using certain trademarks since as early as the early 1970s, and first 7 obtained trademark registrations covering certain marks in 1985. (Id. ¶ 4.) The United States 8 Patent and Trademark Office has issued numerous federal trademark registrations to FGNA, set 9 forth as follows: 10 Mark Registration No. Date of Registration Feldenkrais Feldenkrais Method Guild Certified Feldenkrais Teacher Awareness Through Movement ATM Functional Integration FI 1,374,266 1,982,044 2,187,073 1,353,317 4,011,600 1,286,531 4,184,962 December 3, 1985 June 25, 1996 September 8, 1998 August 6, 1985 August 16, 2011 July 17, 1984 August 7, 2012 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition, FGNA owns other trademarks, service marks, and certification marks. (Haller Decl. ¶10.) For example, FGNA owns the certification mark GCFTCM, an acronym for Guild Certified Feldenkrais Teacher® as well as the certification mark Guild Certified Feldenkrais PractitionerCM and its acronym GCFPCM. Relevant consumers recognize the use of these marks as certifying that the user is a qualified Feldenkrais® Practitioner or Teacher. (Id. ¶ 10.) FGNA regulates the quality of those persons holding themselves out as practitioners and trainers of the Feldenkrais Method® of somatic education by controlling the use of the marks. The FGNA has established rules for those who may use the FGNA Marks. (Id. ¶¶ 12-16; Exh. D FGNA Policy E2.4.2.1 FGNA Service Marks, Certification Marks and Trademarks, hereinafter “FGNA Marks Policy”.) Guild Certified Feldenkrais Practitioners, FGNA Professional Members, authorized trainees are granted licenses to use certain of the FGNA Marks, subject to enumerated conditions in the FGNA Marks Policy. (Id. ¶ 5.) To be eligible to use the FGNA Marks, persons 2 1 must provide verification of graduation from a professional Feldenkrais Method® training 2 program that has been accredited by FGNA or another recognized international board under 3 approved policies; completion of a ”crossover plan” approved by the North American Training 4 Accreditation Board (an entity related to FGNA that is responsible for accrediting training 5 programs); or have been granted an exception to those requirements by the FGNA Board of 6 Directors. (Id. ¶ 13.) Members must complete: (i) continuing competence requirements, including 7 self-assessment, creation of learning plan; (ii) twenty hours of appropriate continuing education 8 annually; and (iii) 100 hours of professional practice annually. Members also must agree to 9 comply with FGNA policies.2 (Id. ¶¶ 14-15.) Finally, new members must complete the applicable 10 form and pay the applicable fee. (Id. ¶ 16.) United States District Court Northern District of California 11 Certified Feldenkrais® practitioners are allowed to use its trademarks, service marks and 12 certification marks in connection with educational services relating to somatic education, among 13 other services. (Id. ¶ 4.) FGNA and its authorized licensees have continuously used the FGNA’s 14 trademarks, service marks and certification marks in connection with these services for several 15 decades. (Id.) Only people personally trained by Dr. Feldenkrais, graduates of FGNA-accredited 16 training programs, and others who have received authorization from FGNA are eligible to be 17 certified by, to become members of FGNA, and to use the FGNA’s trademarks, service marks and 18 certification marks. (Id. ¶ 5.) 19 B. Conduct of Wildman and Feldenkrais Movement Institute 20 From 1978 to January 22, 2018, defendant Wildman was an FGNA member. He was 21 certified by FGNA as a Feldenkrais® practitioner and was authorized to use the FGNA Marks. 22 He agreed and was obligated to abide by the FGNA code of conduct. Wildman was president of 23 FGNA during 1997, and was the chair of the FGNA committee that wrote the FGNA standards of 24 practice. (Id. ¶ 17.) 25 Wildman’s relationship with the FGNA ended on January 22, 2018, when the FGNA and 26 27 28 2 See Haller Decl. Exh. D (“E2.3.2.1 The Feldenkrais Method® of Somatic Education Standards of Practice; E2.3.3.2 Code of Professional Conduct; and E2.4.2.1-ED FGNA Service Marks, Certification Marks and Trademarks.”) 3 1 Wildman entered into a confidential agreement amidst allegations of Wildman’s misconduct. 2 (Haller Decl., Exh. E, “the Agreement.”) Under the four-page Agreement, Wildman 3 acknowledged that he is no longer an FGNA member, an FGNA Certified Feldenkrais® 4 Practitioner, nor an FGNA Certified Feldenkrais® Trainer. (Id. §§ 2-4.) Wildman agreed not to 5 teach or practice the Feldenkrais® Method. (Id. § 8.) As of the effective date of the Agreement, 6 Wildman agreed to “refrain from using any FGNA trademarks, service mark, or certification 7 marks.” (Id. § 5.) He agreed to “not represent himself or hold himself out as being certified, 8 licensed, accredited by, or otherwise associated with, the FGNA, the Feldenkrais® Method, or any 9 FGNA trademark, service mark, or certification mark.” (Id.) The Agreement requires that Wildman refrain from all use of the FGNA Marks. (Id.) Under the Agreement, Wildman had 11 United States District Court Northern District of California 10 until March 22, 2018, to make the changes required. (Haller Decl. ¶ 26.) By his own admission, 12 Wildman failed to complete the changes. (Declaration of Frank Wildman, Dkt. No. 33-3, at ¶13.) 13 This action ensued. 14 II. 15 APPLICABLE STANDARD The Court may grant preliminary injunctive relief in order to prevent “immediate and 16 irreparable injury.” Fed. R. Civ. P. 65(b). To establish a right to a preliminary injunction, a 17 plaintiff must demonstrate that: (1) it is likely to succeed on the merits; (2) it is likely to suffer 18 irreparable harm absent preliminary relief; (3) the balance of equities tips in its favor; and (4) the 19 injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); 20 American Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1054 (9th Cir. 2009). 21 So long as the plaintiff makes a threshold showing of irreparable harm and likelihood of 22 success on the merits, a stronger showing on one element may offset a weaker showing on 23 another. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-33 (9th Cir. 2011); see also 24 Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011). The Winter factors are evaluated on a 25 sliding scale: “serious questions going to the merits, and a balance of hardships that tips sharply 26 toward the plaintiff can support issuance of preliminary injunction, so long as the plaintiff also 27 shows that there is a likelihood of the irreparable injury and that the injunction is in the public 28 interest.” Alliance for Wild Rockies, 632 F.3d at 1134-35. 4 1 III. DISCUSSION AND FINDINGS 2 A. 3 To establish a likelihood of success, plaintiff need not conclusively prove its case or show 4 that it is “more likely than not” to prevail. Univ. of Tex. V. Camenisch, 451 U.S. 390, 395 (1981); 5 Leiva-Perez, 640 F.3d at 966; see also Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 6 229 (3d Cir. 2011). Rather, a “fair chance” of success is the standard for granting preliminary 7 injunctive relief. Benda v. Grand Lodge of IAM, 584 F.2d 308, 315 (9th Cir. 1978). Here, the 8 Court finds that FGNA has established a likelihood of success on the merits of its claims for 9 breach of contract and trademark infringement. 10 United States District Court Northern District of California 11 Likelihood of Success on the Merits 1. Breach of Contract First, as to the breach of contract claims, Wildman concedes that he failed to make all the 12 changes required under the Agreement. (Oppo. at 1:3-4; 4:4-6; Wildman Decl. ¶ 13.) By the time 13 of the application for the temporary restraining order, Wildman and his assistant were only able to 14 remove or revise 70% of the items identified by FGNA’s counsel as being in violation of the 15 Agreement. (Wildman Decl. ¶ 13.) 16 Wildman owns, operates, produces, and manages a website at the url 17 FeldenkraisInstitute.org, and is responsible for all content on the website. (Haller Decl. ¶ 26.) 18 Wildman uses this website to market and promote himself and FMI. The required changes to his 19 website at FeldenkraisInstitute.org have not been made and it continues to contain numerous 20 unauthorized uses of the FGNA Marks. Wildman is also the owner, operator, producer and 21 manager of a website at the url “FrankWildmanMovement.org,” which he uses to market and 22 promote himself and his business. Wildman has made some required changes to his website at 23 FrankWildmanMovement.org, but not all, such that the website continues to include unauthorized 24 uses of the FGNA Marks. (Id. ¶ 27.) Wildman also markets and promotes himself through various 25 social media and social networking platforms such as Facebook, YouTube, and LinkedIn. 26 Each of Wildman’s pages on these social media and social networking platforms continue 27 28 5 1 to contain numerous unauthorized uses of the FGNA Marks. (Id. ¶ 28.)3 In addition, Wildman 2 has failed to remove FGNA Marks from his biography for purposes of promotion of himself and 3 his business. For instance, Wildman’s biography for a 1440 Multiversity program states that he is 4 a “Feldenkrais Method® expert,” and uses the Feldenkrais Method® trademark five times in one 5 paragraph. By his continued use of the FGNA Marks, Wildman is in violation of the parties’ 6 Agreement.4 7 In response to the request for injunctive relief, defendants contend that the Court should 8 not grant FGNA equitable relief due to its “unclean hands.” Defendants argue that paragraph 8 of 9 the Agreement is an unlawful non-competition agreement barred by California Business & Professions Code section 16600. Based upon the record presently before the Court, defendants’ 11 United States District Court Northern District of California 10 argument is without merit. The Agreement precludes Wildman from “teaching or engaging in the 12 professional practice of the Feldenkrais® Method.” It does not prohibit Wildman from teaching 13 or engaging in any professional practice so long as he does not represent that practice to be “the 14 Feldenkrais® Method.” 15 16 Thus, the Court concludes that plaintiff has shown a likelihood of success on the merits of its breach of contract claim. 17 18 19 20 21 22 23 24 25 26 27 28 3 Defendants argued that the evidence of their continued unauthorized uses of the FGNA Marks was not admissible. To the contrary, and aside from Wildman’s own concession of continued unauthorized use, the declaration of Nancy Haller represented personal knowledge of the facts therein and that “as of today’s date” on the date of the declaration, the enumerated unauthorized uses continued on the social media and social networking platforms used by Wildman. (Haller Decl. ¶¶ 1, 28.) The Court finds the evidence submitted sufficient to establish likelihood of success on the merits here. 4 Defendants argue that FMI is not a party the Agreement, and therefore not bound by it. Whether or not FMI is a party to the Agreement, or is an alter ego of Wildman, FMI is responsible for its acts of infringement. Use of the FGNA Marks without authorization, in a manner that is likely to cause consumer confusion, results in trademark infringement. FMI derived its rights to use the FGNA Marks solely from Wildman. When Wildman was authorized to use the FGNA Marks, that license also was applicable to FMI. Consequently, when Wildman gave up his license to use the FGNA Marks, FMI could no longer use the FGNA Marks based upon Wildman’s membership. No evidence was offered to demonstrate that FMI had a license or other right to use the FGNA Marks independent of Wildman’s rights to use them under the FGNA Service Marks Policy. 6 2. 1 2 Trademark Infringement In addition, the Court finds that plaintiff is likely to succeed on its trademark infringement 3 claim. Based upon the record before the Court, defendants’ continued use of the FGNA Marks 4 constitutes trademark infringement. To succeed on its claim of trademark infringement, FGNA 5 must demonstrate: (1) ownership of a valid and protectable trademark; and (2) defendants’ use of 6 the mark is likely to cause consumer confusion, thereby infringing on the plaintiff’s rights. 7 Aurora World, Inc. v. Ty Inc., 719 F.Supp.2d 1115, 1141 (C.D. Cal. 2009) (quoting Dep’t of Parks 8 & Rec. v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1124 (9th Cir. 2006)). When, as here, two 9 marks are identical and used for the same goods, courts have found that the likelihood of confusion is overwhelming, even if no other factors favor a finding of confusion. Brookfield 11 United States District Court Northern District of California 10 Communs., Inc. v. W. Coast Ent’t. Corp., 174 F.3d 1036, 1056 (9th Cir 1999); see also Lindy Pen 12 Co. v. Bic Pen Corp., 796 F.2d 254, 256-57 (9th Cir. 1986) (reversing district court’s finding of no 13 likelihood of confusion given “the overwhelming likelihood of confusion resulting from the direct 14 competition of pens with virtually identical marks”).5 Further, use of the same marketing channels 15 “increase[s] the likelihood of confusion.” Nutri/System, Inc. v. Con-Stan Indus., Inc., 809 F.2d 16 601, 606 (9th Cir. 1987) (citing Sleekcraft, 599 F.2d at 353). 17 The facts of ownership here are not contested. FGNA asserts, and defendants do not 18 dispute, that each of its registrations for trademarks are current, presumed valid, in force, and 19 incontestable under 15 U.S.C. section 1065. All of the FGNA Marks at issue were in existence 20 and in use at the time Wildman was the president of FGNA, and many had been in use or 21 registered many years before he was president. Similarly undisputed is FGNA’s contention that 22 all of its claimed marks, whether trademarks, service marks, certification marks or related 23 24 25 26 27 28 5 The Ninth Circuit has developed an eight-factor test to guide the determination of a likelihood of confusion. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979) (“Sleekcraft”). “The Sleekcraft factors are intended as an adaptable proxy for consumer confusion, not a rote checklist.” Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1145 (9th Cir. 2011) (citations omitted). Given that the marks at issue here are identical and are being used for nearly identical services, and that defendants do no contest the Sleekcraft factors in opposition, the Court does not analyze the showing on each factor in reaching the decision herein. 7 1 common law marks, regardless of registration, have acquired significant good will through the 2 extensive and widespread use. They are distinctive as a source identifier and certification 3 indicator in connection with the FGNA providing of services and licensing of others to use its 4 marks in connection with the services identified in those registrations and as indicating that the 5 user has met the FGNA’s rigorous requirements. FGNA has invested significant resources to 6 advertise its and its licensee’s educational services offered in connection with the FGNA Marks. 7 FGNA is the beneficiary of many third party stories and articles providing significant and positive 8 press coverage to the FGNA services resulting in the development of significant goodwill for the 9 FGNA Marks. 10 The facts regarding confusion are likewise not in serious contention. Defendants’ services United States District Court Northern District of California 11 are nearly identical to those of FGNA’s and its licensees, and both are marketed and promoted 12 through the Internet, key word searching, social media and social networking platforms and direct 13 mail. The record before the Court indicates that defendants are using marks identical to the FGNA 14 Marks to promote services that are the same services FGNA promotes, licenses, or certifies. 15 (Haller Dec. ¶ 33.) Consequently, the parties are in direct competition with each other. 16 Defendants contend that they are not liable for trademark infringement because they are 17 simply making “fair use” of the trademarks in their webpages and other marketing materials. A 18 nominative fair use is one that “does not attempt to capitalize on consumer confusion or to 19 appropriate the cachet of one product for a different one . . . . [but instead is a use] where the only 20 word reasonably available to describe a particular thing is pressed into service.” New Kids on the 21 Block v. News Am. Pub., Inc., 971 F.2d 302, 308 (9th Cir. 1992). The nominative fair use standard 22 bars liability for an unauthorized use of a trademark where: (1) the product or service is not be 23 readily identifiable without use of mark; (2) only so much of the mark is used as is reasonably 24 necessary to identify the product or service; and (3) the user does nothing that would, in 25 conjunction with the mark, suggest sponsorship or endorsement by the trademark holder. Id. All 26 three elements must be met for the defense to apply. See, e.g. Brother Records, Inc. v. Jardine, 27 318 F.3d 900, 908 (9th Cir. 2003) overruled on other grounds in Toyota Motor Sales, U.S.A. v. 28 Tabari, 610 F.3d 1171 (9th Cir. 2010). Defendants have not offered any evidence to meet these 8 1 elements. Wildman can identify and describe his services without making use of the FGNA 2 Marks and has done so in identifying his services as “Frank Wildman Movement” and “Change 3 Your Age Method.” He has not offered evidence to support his contention that “there is no other 4 way to describe the public-domain body movement and principles” than the use of the term 5 “Feldenkrais.” 6 The Court therefore finds the plaintiff has established a likelihood of success on its claim 7 that defendants’ continued use of the FGNA Marks constitutes infringement upon FGNA’s rights 8 in the FGNA Marks. 9 10 B. Irreparable Harm To establish a right to a preliminary injunction, a plaintiff must demonstrate “a significant United States District Court Northern District of California 11 threat of irreparable injury.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999). 12 Evidence of lost business or business opportunities, as well as damage to goodwill, will satisfy the 13 requirement to show irreparable harm. See, e.g., Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush 14 and Co., 240 F.3d 832, 841 (9th Cir. 2001) (“[e]vidence of threatened loss of prospective 15 customers or goodwill certainly supports a finding of the possibility of irreparable harm”); Herb 16 Reed Enterprises, LLC v. Fla. Entm't Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013) (“Evidence 17 of loss of control over business reputation and damage to goodwill could constitute irreparable 18 harm.”). “A district court has considerable discretion in fashioning suitable relief and defining the 19 terms of an injunction.” Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 20 1991). “Injunctive relief, however, must be tailored to remedy the specific harm alleged.” Id. 21 The Court finds that, as a result of defendants’ conduct, FGNA is likely to suffer 22 immediate and irreparable harm loss, damage, and injury, unless FGNA’s request for injunctive 23 relief is granted. Defendants’ unauthorized use of the FGNA Marks prevents FGNA from 24 controlling the quality of the services associated with its marks. FGNA has received numerous 25 complaints about Wildman’s ongoing use of the FGNA Marks, and his continuing to hold himself 26 out as being associated with FGNA. (Haller Decl. ¶ 36.) Wildman’s continued use of the FGNA 27 Marks is likely to result in harm loss of the value associated with the FGNA Marks and 28 reputational harm, as well as loss of goodwill with respect to FGNA’s members. These losses are 9 1 not readily compensable by an award of monetary damages. Further, under the Agreement, 2 Wildman acknowledged that any breach would cause FGNA irreparable injury and that damages 3 would be an inadequate remedy in the event of such breach, such that injunctive relief would be 4 permissible for a breach or threatened breach by Wildman. (Haller Decl., Exh. E § 19.) This 5 factor favors injunctive relief. 6 C. Balance of Equities 7 In determining the balance of equities, courts look to “the degree of harm that will be suffered by the plaintiff or the defendant if the injunction is improperly granted or denied.” Scotts 9 Co. v. United Indus. Corp., 315 F.3d 264, 284 (9th Cir. 2002); accord Winter, 555 U.S. at 24 10 (2008). The balance of potential harm to defendants of being enjoined from use of the FGNA 11 United States District Court Northern District of California 8 Marks until a trial on the merits is far outweighed by the potential harm to FGNA, its goodwill, 12 and reputation associated with the FGNA Marks if a preliminary injunction order is not issued. 13 Defendants concede that Wildman did not comply with the terms of the Agreement timely. 14 Leaving aside any matters that may be in dispute between the parties, Wildman concedes that he 15 did not take down webpages that he knew were in clear violation of the Agreement, but instead 16 continued piecemeal efforts to edit the material well past the deadline, never taking down pages 17 with potential violations until the temporary restraining order herein issued. (Wildman Decl. 18 ¶¶ 10-13.) Wildman represents that the process of removing even those uses he acknowledges are 19 in violation of the Agreement is “time-consuming” and requires review of “hundreds of pages.” 20 (Id. ¶ 11.) In view of the hundreds of potential violations and improper uses of the FGNA Marks, 21 the equities favor a preliminary injunction, even if it requires Wildman to take down defendants’ 22 websites entirely for a period of time. 23 The Court has set an expedited schedule, with a trial set to proceed a little over four 24 months from the filing of the complaint herein, in order to minimize the harms from a preliminary 25 injunction pending trial. (Dkt. No. 36.) In light of that, the balance of harms favors preliminary 26 granting injunctive relief. 27 // 28 // 10 1 D. Public Interest 2 “The public interest inquiry primarily addresses [the] impact on non-parties rather than 3 parties.” Sammartano v. First Judicial District Court, 303 F.3d 959, 974 (9th Cir. 2002). The 4 public interest will be served by the issuance of a temporary restraining order and preliminary 5 injunction, as the public has a strong interest in being free from confusion caused by the 6 unauthorized use of trademarks. See Brookfield Communs., 174 F.3d at 1066 (“preliminary 7 injunctive relief is appropriate... to promote the public interest in protecting trademarks 8 generally”); Wetzel's Pretzels, LLC v. Johnson, 797 F. Supp. 2d 1020, 1029 (C.D. Cal. 2011) 9 (“public has a strong interest in being free from the confusion caused by unauthorized use”); Morrocanoil, Inc. v. Moroccan Gold, LLC, 590 F. Supp. 2d 1271, 1281 (C.D. Cal. 2008) (holding 11 United States District Court Northern District of California 10 the public has a “right not to be deceived or confused”). The public has a right to choose services 12 knowing that they are not being misled as to whether those services are offered by parties 13 authorized by FGNA to hold themselves out as being associated with the FGNA. The public 14 interest favors issuance of a preliminary injunction to protect the public from being harmed or 15 deceived by defendants representing their services as authorized by, certified by, endorsed by, or 16 associated with FGNA. 17 E. Security Requirement 18 Under Rule 65(c) of the Federal Rules of Civil Procedure, no party may be granted a 19 preliminary injunction without first posting security “in an amount that the court considers proper 20 to pay the costs and damages sustained by any party found to have been wrongfully enjoined or 21 restrained.” Fed. R. Civ. P. 65(c). Defendants did not submit any evidence or argument 22 concerning the appropriate amount of a bond. The Court therefore orders a nominal bond in the 23 amount of $5,000.00. 24 IV. 25 26 27 28 CONCLUSION Based upon the foregoing, the Motion for Preliminary Injunction is GRANTED. The Court ORDERS as follows: (a) Defendants Frank Wildman and Feldenkrais Movement Institute, their owners, affiliates, officers, directors, managers, agents, servants, employees, and any and all persons in 11 1 active concert or participation with any of them (collectively “Enjoined Persons”), SHALL NOT 2 use without the authorization of FGNA, any of FGNA’s trademarks, service marks, certification 3 marks, logos, and trade names, including, but not limited to, the marks “Feldenkrais,” 4 “Feldenkrais Method,” “Functional Integration,” “FI,” “Awareness Through Movement,” “ATM,” 5 “Guild Certified Feldenkrais Teacher,” “GCFT” “Guild Certified Feldenkrais Practitioner,” and 6 “GCFP” (the “FGNA Marks”) or any other name, logo, or mark that includes the designation 7 “Feldenkrais” or that is confusingly or deceptively similar to any of the FGNA Marks, either alone 8 or in conjunction with other words or symbols, as part of any trademark, service mark, 9 certification mark, logo, trade name, corporate name, assumed name, domain name, website, email address, keywords, or metatags on or in relation to any goods or services marketed, promoted, 11 United States District Court Northern District of California 10 advertised, sold, offered for sale or provided by the defendants, or in any other manner, including 12 without limitation, any marketing literature, printed or electronic, on websites, on social media 13 sites or on social networking sites. 14 For purposes of clarification, this Order prohibits and enjoins: (1) 15 any Enjoined Person’s use of the word “Feldenkrais” in any form other than 16 as part of the phrase “Dr. Moshe Feldenkrais” in any marketing literature, printed or 17 electronic, or in any online medium including social media, social networking sites, and 18 any other website or application; and (2) 19 20 use of the word “Feldenkrais” in the website url or email address for any Enjoined Person; and (3) 21 use of the word “Feldenkrais” as part of the organizational name of 22 defendant Feldenkrais Movement Institute. 23 (b) Defendants Frank Wildman and Feldenkrais Movement Institute, their owners, 24 affiliates, officers, directors, managers, agents, servants, employees, and any and all persons in 25 active concert or participation with any of them (collectively “Enjoined Persons”), SHALL NOT 26 use, authorize, permit, or encourage others to use on either defendants’ behalf, the FGNA Marks 27 in any form or manner that would tend to associate defendants, or their business or services, with 28 FGNA, including, without limitation, in the marketing, promotion, advertising, identification, sale, 12 1 2 or offer for sale of goods or services, or in any other manner. (c) FGNA shall place security in the amount of $5,000.00 with the Court for the 3 payment of any damages any person may be entitled to recover as a result of an improper or 4 wrongful restraint ordered hereunder. Proof of such undertaking shall be filed no later than May 5 29, 2018. 6 7 IT IS SO ORDERED. Dated: May 23, 2018 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13