Philippe Charriol International Limited v. A'Lor International Limited, No. 3:2013cv01257 - Document 6 (S.D. Cal. 2013)
Court Description: ORDER denying 3 Motion for TRO: The Court DENIES Plaintiff's ex parte application for a TRO. Accordingly, Plaintiff's accompanying motions for an order to show cause why a preliminary injunction should not issue, a seizure order, a subst itute custodian order, and an expedited discovery order are also DENIED. Plaintiff shall serve Defendant will all documents filed in this matter, including the complaint, the instant applications, and this Order by June 4, 2013, and provide proofs of service to the Court by June 7, 2013. Once these documents are timely served on Defendant, Plaintiff may contact the Court to schedule a hearing on the request for a preliminary injunction. Signed by Judge Michael M. Anello on 5/31/2013. (amk)
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Philippe Charriol International Limited v. A&#039;Lor International Limited Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PHILIPPE CHARRIOL INTERNATIONAL LIMITED, 12 CASE NO. 13CV1257-MMA (BGS) ORDER DENYING PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; Plaintiff, 13 14 15 DENYING APPLICATION FOR AN ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; vs. 16 17 DENYING APPLICATION FOR A SEIZURE ORDER; 18 19 20 21 A’LOR INTERNATIONAL LIMITED, DENYING APPLICATION FOR A SUBSTITUTE CUSTODIAN ORDER; Defendant. 22 DENYING EXPEDITED DISCOVERY ORDER 23 [Doc. No. 3] 24 On May 30, 2013, Plaintiff Philippe Charriol International Limited 25 (“Plaintiff”) filed a complaint against Defendant A’lor International Limited 26 (“Defendant”) alleging trademark counterfeiting, trademark infringement, and other 27 related claims. [Doc. No. 1.] Plaintiff also filed an ex parte application for a 28 temporary restraining order (“TRO”) seeking, inter alia, to enjoin Defendant from -1- 13CV1257 Dockets.Justia.com 1 manufacturing and distributing jewelry which infringes Plaintiff’s trademarks. 2 [Doc. No. 3.] For the reasons set forth below, the Court DENIES Plaintiff’s ex 3 parte TRO motion. Accordingly, the Court also DENIES all accompanying 4 requests. BACKGROUND 5 6 Plaintiff Philippe Charriol International Limited is the owner of the worldwide 7 luxury brand, CHARRIOL, which creates and sells distinctive watches, jewelry, 8 leather goods, and accessories sold in more than 60 countries. Since its inception in 9 1984, CHARRIOL has used cable as a distinctive element of its jewelry design, 10 finding inspiration from, among other things, Celtic art. Plaintiff has trademarked 11 several cable and metallic nautical rope designs, and is actively engaged in 12 expanding its cable design jewelry throughout the world. 13 Defendant A’lor is a California corporation and is Plaintiff’s exclusive 14 jewelry distributor in the United States and Canada (the “Territory”). The parties’ 15 relationship is defined by an October 1, 2010 Exclusive Jewelry License Agreement. 16 Under the Jewelry Agreement, Defendant is charged with designing jewelry 17 collections and presenting them for Plaintiff’s approval, and then producing the 18 collections and distributing the jewelry to Defendant’s network of dealers for sale to 19 consumers. A’lor maintains its own jewelry line in addition to distributing 20 Plaintiff’s jewelry. 21 Various restrictions were placed in the Jewelry Agreement which, according 22 to Plaintiff, were intended by the parties for Plaintiff to exercise tight and unfettered 23 control over how the CHARRIOL cable design, name, appearance, image, and brand 24 was used and promoted by A’lor, and to prevent A’lor, a putative competitor with its 25 own jewelry line and products, from selling under the A’lor name. However, 26 Plaintiff alleges that rather than fulfilling its duties under the Jewelry Agreement, 27 Defendant A’lor has instead undertaken increasingly aggressive steps to build and 28 develop its own line of “Alor” jewelry at the expense of the strength of the -2- 13CV1257 1 CHARRIOL name and brand. Plaintiff alleges to have recently discovered that 2 Defendant A’lor has engaged in harmful commercial activity that has damaged and 3 will continue to harm the CHARRIOL name and brand, and create considerable 4 confusion in the mind of consumers about the differences between A’lor’s jewelry 5 and the CHARRIOL brand. Specifically, Plaintiff cites the following acts:1 6 • A’lor’s website passes-off CHARRIOL Products as A’lor 7 products; that is, www.alor.com displays CHARRIOL Products 8 as A’lor products. Such passing-off even includes A’lor 9 marketing and selling CHARRIOL cufflinks which include the A’lor logo and symbol. 10 11 • A’lor knocking-off CHARRIOL Products outside the United 12 States and Canada, for instance, in Australia and Kazakhstan. 13 Plaintiff alleges that it just discovered that A’lor has started 14 selling rebranded CHARRIOL Products in Australia through 15 Acacia Agencies, an Australian-based jewelry wholesaler. Each 16 of these CHARRIOL knock-off jewelry items are 18kt gold 17 jewelry licensed under the Jewelry Agreement, and are composed 18 of CHARRIOL designs approved by PCI to be manufactured and 19 distributed by A’lor only in the U.S. and Canada. Plaintiff does 20 not yet know, but suspects that A’lor is selling the same 21 CHARRIOL jewelry as A’lor jewelry in Kazakhstan. 22 • Alor’s own media advertising. 23 24 Alor’s passing-off and trading upon CHARRIOL’s name within • A’lor’s passing-off on Facebook, by prominently inserting the 25 A’lor name within the CHARRIOL Facebook page, or displaying 26 CHARRIOL jewelry on the A’lor Facebook page, purporting that 27 1 28 Plaintiff’s motion includes a variety of other allegedly-harmful activity engaged in by Defendant. The Court has thoroughly considered each activity but, for sake of brevity, does not include them here. -3- 13CV1257 it is A’lor jewelry. 1 2 • Alor’s use of the phrase “Cable& 18kt Gold Jewelry” in a 3 manner that (1) misrepresents and confuses consumers that A’lor 4 has an exclusive for such jewelry; and (2) is unapproved by 5 Plaintiff as required under the Jewelry Agreement. 6 Based on these and other incidents, Plaintiff alleges that Defendant A’lor is 7 violating Plaintiff’s trademarks as well as breaching the parties’ Jewelry Agreement. 8 As a result, Plaintiff filed the instant action, alleging nine separate causes of action. 9 Presently, Plaintiff requests that the Court grant a TRO against Defendant based on 10 the actions alleged in the complaint. Specifically, Plaintiff seeks a TRO to enjoin 11 Defendant A’lor from: 12 1. displaying, selling, offering for sale, or distributing jewelry depicted as 13 “Alor” jewelry inside and outside the United States and Canada that is 14 actually CHARRIOL jewelry designed and produced by A’lor under 15 the Jewelry Agreement; 16 2. displaying, selling, offering for sale, or distributing “Alor” jewelry 17 inside and outside the Territory that infringes upon Plaintiff’s 18 Trademarks; and 19 20 3. using Plaintiff’s Trademarks in combination with A’lor’s promotion, display, advertising, and sale of A’lor jewelry. 21 DISCUSSION 22 The purpose of a TRO is to preserve the status quo before a preliminary 23 injunction hearing may be held; its provisional remedial nature is designed merely to 24 prevent irreparable loss of rights prior to judgment. Granny Goose Foods, Inc. v. 25 Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). The 26 legal standard that applies to a motion for a TRO is the same as a motion for a 27 preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 28 F.3d 832, 839 n.7 (9th Cir. 2001). To obtain a TRO or preliminary injunction, the -4- 13CV1257 1 moving party must show: (1) a likelihood of success on the merits; (2) a likelihood 2 of irreparable harm to the moving party in the absence of preliminary relief; (3) that 3 the balance of equities tips in the moving party’s favor; and (4) that an injunction is 4 in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 5 (2008). 6 With respect to issuing an ex parte TRO, Federal Rule of Civil Procedure 7 65(b)(1) provides that a “court may issue a temporary restraining order without 8 written or oral notice to the adverse party or its attorney only if: (A) specific facts in 9 an affidavit or a verified complaint clearly show that immediate and irreparable 10 injury, loss, or damage will result to the movant before the adverse party can be 11 heard in opposition; and (B) the movant’s attorney certifies in writing any efforts 12 made to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 13 65 (emphasis added). 14 The United States Supreme Court has held that there are stringent restrictions 15 imposed by Rule 65 because “our entire jurisprudence runs counter to the notion of 16 court action taken before reasonable notice and an opportunity to be heard has been 17 granted both sides of a dispute.” Granny Goose, 415 U.S. 423 at 439. 18 “[C]ircumstances justifying the issuance of an ex parte order are extremely limited.” 19 Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). There are 20 “a very narrow band of cases in which ex parte orders are proper because notice to 21 the defendant would render fruitless the further prosecution of the action.” Id. 22 (quoting American Can Co. v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984)). For 23 example, to justify an ex parte proceeding where an alleged infringer is likely to 24 dispose of the infringing goods before the hearing, the “applicant must do more than 25 assert that the adverse party would dispose of evidence if given notice.” Id. (citation 26 omitted). “[P]laintiffs must show that defendants would have disregarded a direct 27 court order and disposed of the goods within the time it would take for a hearing . . . 28 [and] must support such assertions by showing that the adverse party has a history of -5- 13CV1257 1 disposing of evidence or violating court orders or that persons similar to the adverse 2 party have such a history.” Id. (citation omitted). 3 Here, Plaintiff has not addressed or complied with the ex parte provisions 4 under Federal Rule of Civil Procedure 65. In its application, Plaintiff states there is: 5 great risk that A’lor would destroy (in the jewelry trade, destroy often means melt the jewelry for future use) incriminating evidence if provided with notice of this TRO without a seizure because if a restraining order issues, A’lor will be precluded from selling its offending jewelry, and would therefore have a great incentive to melt the jewelry, allowing for future use. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [TRO Mot. at 41.] A declaration by Plaintiff’s managing director, Ludovic Lesur, was filed to support this assertion. [See Lesur Decl. ¶ 49 (“If advance notice of this TRO application is furnished to A’lor, A’lor will likely hide or destroy its relevant business records and electronically stored information.”). However, Plaintiff’s counsel has not filed a declaration regarding the issue of whether notice should not be required. Moreover, Plaintiff must assert more than a conclusory allegation that Defendant may dispose of evidence. See McCord, 452 F.3d at 1131. Plaintiff cites a 2007 case from the Southern District of Florida for the proposition that “Counterfeiters who have no substantial investment in stationary assets will often disappear or dispose of evidence if served with a notice of hearing[.]” [TRO Mot. at 41 (citing Dell Inc. v. Belgium Domains, LLC, 2007 WL 6862341, at *3 (S.D. Fla. 2007)). However, Dell is distinguishable. There, the defendants had a history of concealing evidence by using numerous fictitious businesses, personal names, and shell entities to hide their activities. Further, defendants could destroy the relevant evidence all with just a few keystrokes, “leaving no paper trail.” Dell, 2007 WL 6862341 at *2. “The elaborate nature of Defendants’ scheme demonstrates that Defendants will go to great lengths to conceal the details of their counterfeiting and cybersquatting scheme. If Defendants learn of this proceeding, there will very likely and very quickly be nothing left.” Id. Finally, the plaintiffs in Dell also demonstrated that “same persons involved in similar activities have disregarded court orders in the past.” Id. -6- 13CV1257 1 Here, Plaintiff does not show a history of concealment on the part of 2 Defendant. Nor is there proof that similarly situated defendants have disregarded 3 court orders in the past by illegally destroying evidence. Thus, the Court finds that 4 Plaintiff has not demonstrated that this case fits within the “very narrow band of 5 cases” in which ex parte orders are proper. McCord, 452 F.3d at 1126. CONCLUSION 6 7 Based on the foregoing, the Court DENIES Plaintiff’s ex parte application for 8 a TRO. Accordingly, Plaintiff’s accompanying motions for an order to show cause 9 why a preliminary injunction should not issue, a seizure order, a substitute custodian 10 order, and an expedited discovery order are also DENIED. 11 Plaintiff shall serve Defendant will all documents filed in this matter, 12 including the complaint, the instant applications, and this Order by June 4, 2013, 13 and provide proofs of service to the Court by June 7, 2013. Once these documents 14 are timely served on Defendant, Plaintiff may contact the Court to schedule a 15 hearing on the request for a preliminary injunction. 16 17 IT IS SO ORDERED. DATED: May 31, 2013 18 19 20 Hon. Michael M. Anello United States District Judge 21 22 23 24 25 26 27 28 -7- 13CV1257
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