Brian Lichtenberg - Motion For TRO

Case 2:13-cv-06837-DDP-PJW Document 19 Filed 10/17/13 Page 1 of 30 Page ID #:210
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DAVID GRAZIANI, ESQ., (SBN#276009) The Law Offices of David Graziani, P.C. 10880 Wilshire Blvd., Suite 1101 Los Angeles, CA 90024 Telephone: (310) 935-4088 Facsimile: (310) 935-4076 RONALD D. TYM, ESQ. (SBN#195339) The Tym Firm 7120 Carlson Circle, #263 Canoga Park, CA 91303 Telephone: (818) 836-1428 Facsimile: (818) 337-2026 Attorneys for Plaintiffs, Brian Lichtenberg, LLC and Brian Lichtenberg UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BRIAN LICHTENBERG, LLC, a Case No. 2:13-CV-6837 DDP (PJWx) California limited liability company; and EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, AN BRIAN LICHTENBERG, an individual, ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT Plaintiffs, ISSUE, AND AN ORDER FOR EXPEDITED DISCOVERY vs. [Filed concurrently with Declarations of Brian Lichtenberg, Reda Bouaissa, Jennifer Green, ALEX & CHLOE, INC., a California Natalie Levy, Fraser Ross, Brittnay Bardo, Gabriele corporation; CHRISTOPHER WALTER Bohlen, Flair Xu, Jasmine Tookes, Claude LICHTENBERG, an individual; MARKED SHOWROOM, LLC, a Benoualid and David Graziani, Esq.] California limited liability company; JACQUELINE YI, an individual; TU Date Action Filed: September 17, 2013 TRAN, an individual; KYLE MOCKETT, an individual; KAYTEE ENRIGHT, an individual, Defendants.
23 24 25 26 27 28 Plaintiffs BRIAN LICHTENBERG and BRIAN LICHTENBERG, LLC hereby move this Court as follows for a temporary restraining order, an order to show cause why a preliminary injunction should not issue against Defendants, and an order granting expedited discovery: -1EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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Plaintiff BRIAN LICHTENBERG is a nationally and internationally known designer of fashion apparel, merchandise and accessories. His nationally distributed apparel products by his company, Plaintiff BRIAN LICHTENBERG, LLC, include a line of T-shirts, muscle TShirts, sweatshirts, beanie caps and baseball caps that have names emblazoned across them that parody high-end designer names, such as: Homis, a parody of Herms; Ballin, a parody of Ballmain; Fline, a parody of Cline; Canin, a parody of Cline; and Bucci, a parody of Gucci. The public instantly recognizes such parody names as being Brian Lichtenberg creations and thus recognizes the products on which they appear as being Brian Lichtenberg products. In addition to the instantly recognizable parody names, each of the T-Shirts, sweatshirts, beanie caps and baseball caps are instantly recognizable by the public as being Brian Lichtenberg products because of the unique stitching of the fabrics, the size and placement of the parody names and labels, the color schemes, the fabric and garment choices, and the materials and font style used for the parody names and labels. Defendant Christopher Walter Lichtenberg (CWL), while working for the Plaintiffs, stole Plaintiffs trade secrets, which included, the unique specifications for Plaintiffs parody products, the contact information for the sole manufacturer of Plaintiffs parody products, Plaintiffs customer and distributor lists, and even a then confidential parody name and design that Plaintiffs were about to launch in the market (Ballin and Ballin Paris). Defendants have used such information to begin manufacturing and distributing TShirts, sweatshirts, beanie caps and baseball caps identical to those produced by Plaintiffs and have begun selling such products through the same distribution channels utilized by Plaintiffs. Defendants have not only copied the appearance of the parody products, but have also been using the exact same parody names such as Ballin and Ballin Paris, and names virtually identical, such as Homi (instead of BRIAN LICHTENBERGs Homis), and Errms (instead of BRIAN LICHTENBERGs Homis). Defendants, in using such same parody names, have also used the same size and font as Plaintiffs when emblazoning such names across the front of the apparel products. -2EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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In addition, Defendants ALEX & CHLOE (A&C) and CWL have stolen celebrity advertising pictures of the BRIAN LICHTENBERG parody products from the websites utilized by the Plaintiffs and placed such advertisements on the Defendants own websites, making it falsely appear that the celebrities are wearing and endorsing Defendants imitation products. This is causing massive confusion in the marketplace and irreparable harm to Plaintiffs. Ex parte relief is appropriate because of the need to immediately stop the manufacture, sale and distribution of the imitation products that are causing irreparable harm and because of the likelihood that Defendants will hide their imitation products or send them off-shore if given the opportunity through a fully noticed motion. Therefore, Plaintiffs BRIAN LICHTENBERG and BRIAN LICHTENBERG, LLC hereby make this Ex Parte Application for a Temporary Restraining Order, an Order to Show Cause Why a Preliminary Injunction Should Not Issue, and an Order Granting Expedited Discovery against Defendants, based on the Plaintiffs Complaint for violation of Section 43(a) of the Lanham Act and violation of the California Uniform Trade Secrets Act. This application is based upon this ex parte application, the memorandum in support that follows, the complaint in this action, and the accompanying declarations, together with all the records, papers and pleadings on file in this action, and such oral argument as the Court may consider necessary, if any. Dated: October 17, 2013
DAVID GRAZIANI, ESQ. RONALD D. TYM, ESQ. Attorneys for Plaintiffs Brian Lichtenberg, LLC, Brian Lichtenberg
-3EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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I. II. III.
TABLE OF CONTENTS FACTUAL SUMMARY .................................................................................................... 1 LEGAL STANDARD ....................................................................................................... 11 ARGUMENT .................................................................................................................... 12 A. PLAINTIFFS ARE LIKELY TO SUCCEEED ON THE MERITS OF THEIR CLAIMS ................................................................................................... 12 1. 2. Violation of Section 43(a) of the Lanham ActUnfair Competition............................................................................................... 12 Violation of California Uniform Trade Secrets Act; Constructive Trust of Ballin Trademark; Infringement of Ballin and Ballin Paris Trademarks by Defendants ........................... 16 False Advertising under Section 43(a) of Lanham Act ............................ 18 Intentional Interference with Existing Contracts and Prospective Economic Relations............................................................... 19 Likely to Prevail on the Merits ................................................................. 21
3. 4. 5. B. C. D. IV. V. VI. VII.
IRREPARABLE HARM ...................................................................................... 21 BALANCE OF EQUITIES................................................................................... 23 PUBLIC INTEREST ............................................................................................ 23
PRIOR INJUNCTIVE RELIEF IN STATE COURT ACTION ...................................... 23 PLAINTIFFS SHOULD BE GRANTED CERTAIN EXPEDITED DISCOVERY .................................................................................................................... 24 COMPLIANCE WITH LOCAL RULE 7-19.1 ................................................................ 25 CONCLUSION ................................................................................................................. 25
-iEX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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TABLE OF AUTHORITIES Cases Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) ......................... 12 Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1264 (9th Cir. 2001).......................... 15 Developmental Services Network v. Douglas, 666 F.3d 540, 544 (9th Cir. 2011) ...................... 12 Fryer v. Brown, 2005 WL 1677940 *3 (W.D. Wash. July 15, 2005) ........................................... 15 Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 845-46 (9th Cir. 1987) ................... 15 Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904,908-909 (9th Cir. 2010) ....................... 18 Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904,909 (9th Cir. 2010) ............................... 18 Metro Publishing, Ltd. v. San Jose Mercury News, 987 F.2d 637, 640 (9th Cir. 1993) ......................................................................................................................................... 13 Pacific Gas & Electric Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 1126 (Cal. App. 1990.................................................................................................................................. 19 PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 601 ................................... 20 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ................................................ 12 Statutes 15 U.S.C. 1116(a) ................................................................................................................. 12, 19 15 U.S.C. 1125(a) ................................................................................................................. 13, 18 Cal. Civ. Code 3426.1(a) ............................................................................................................ 17 Cal. Civ. Code 3426.1(b) ............................................................................................................ 16 Cal. Civ. Code 3426.1(d) ............................................................................................................ 17 Cal. Civ. Code 3426.2 ................................................................................................................. 16 Cal. Civ. Code 3426.2(a) ............................................................................................................ 12 Rules Fed. R. Civ. P. 26 .......................................................................................................................... 25 Fed. R. Civ. P. 26(d) ..................................................................................................................... 24 Local Rule 7-19.1.......................................................................................................................... 25
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MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL SUMMARY Plaintiff BRIAN LICHTENBERG began designing fashion apparel in 2000. 1 Within one month of officially working as a fashion designer, Gwen Stefanis stylist purchased several of BRIAN LICHTENBERGS fashion apparel creations for Ms. Stafanis world concert tour and television appearances including Late Night With David Letterman. This was the moment in which BRIAN LICHTENBERG launched his career as a fashion designer, putting him on the map in the fashion industry. 2 Since 2000, celebrities and pop stars such as Miley Cyrus, Kim Kardashian, Lady Gaga, Ciara, Jennifer Lopez, Kanye West, and Shakira have worn clothes designed by BRIAN LICHTENBERG (Brian Lichtenberg Designs), which are manufactured and sold through BRIAN LICHTENBERG, LLC (Brian Lichtenberg, LLC Products). 3 Throughout Plaintiff BRIAN LICHTENBERGs career, he has had numerous prestigious newspaper and magazine articles (online and in print) written about him, BRIAN LICHTENBERG, LLC, Brian Lichtenberg Designs, and Brian Lichtenberg, LLC Products. 4 BRIAN LICHTENBERG is the CEO of BRIAN LICHTENBERG, LLC. 5 BRIAN
LICHTENBERG, LLC distributes and sells Brian Lichtenberg, LLC Products throughout the United States and elsewhere. 6 BRIAN LICHTENBERG is old fashioned in that once he comes up with a design concept he usually creates pencil sketches of the concept. 7 BRIAN LICHTENBERG came to rely upon (and trust) his younger brother, Defendant Declaration of Brian Lichtenberg filed contemporaneously herewith (BL Decl.), 13 and Exhibit 3 thereto. 2 BL Decl., 13 and Exhibit 3 thereto. 3 BL Decl., 13 and Exhibit 3 thereto. 4 BL Decl., 13-14 and Exhibit 3 thereto. 5 BL Decl., 1, 3 and Exhibit 3 thereto. 6 BL Decl., 12. 7 BL Decl., 15 and Exhibit 5 attached thereto. -1EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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CHRISTOPHER LICHTENBERG (CWL), who is very experienced in technology, to take BRIAN LICHTENBERGs pencil sketches of design concepts, and create electronic versions of the designs. 8 During the course of the work that CWL did for BRIAN LICHTENBERG and BRIAN LICHTENBERG, LLC he learned many trade secrets of the Plaintiffs, including the unique specifications for Brian Lichtenberg, LLC Products and Brian Lichtenberg Designs that give them the appearance that the consuming public recognizes instantly as the hallmarks of a Brian Lichtenberg, LLC Product and a Brian Lichtenberg Design, and the name and contact information for the sole manufacturer of Brian Lichtenberg, LLC Products. 9 CWL also learned such trade secrets as the confidential customer and distributor lists of Plaintiffs that contained personal and confidential contact information for those customers and distributors that were distributing and buying Brian Lichtenberg, LLC Products and Brian Lichtenberg, LLC Designs. 10 CWL and A&C also learned information about Brian Lichtenberg Designs and Brian Lichtenberg, LLC Products because A&C (which is owned by CWL) had been offering Brian Lichtenberg Products on its website from approximately January 2010 to approximately February 1, 2013, when the relationship was terminated because A&C and CWL failed to pay the Plaintiffs for the products that had been sold. 11 Currently, and for approximately the past four to five years, Brian Lichtenberg Designs have included designer parodies that parody other designer names (Brian Lichtenberg Designer Parodies). Brian Lichtenberg Designer parodies have included, but are not limited to the following: Homis, a parody of Herms (which parody name has been used exclusively by Plaintiffs since March 2012 in connection with Brian Lichtenberg, LLC Products distributed in interstate commerce), Fline, a parody of Cline (which parody name has been used exclusively by Plaintiffs since March 2012 in connection with Brian Lichtenberg, LLC Products
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BL Decl., 15 and Exhibit 5 attached thereto. BL Decl., 30, 40, 63-64, 112 and Exhibits 12 and 40 attached thereto. 10 BL Decl., 30, 40, 56, 60, 62, 64, 65, 68, 86 and Exhibits 12, 18 and 27 attached thereto. 11 BL Decl., 20, 25, 27, 31, 33 and Exhibits 7 and 8 attached thereto.
9
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distributed in interstate commerce); Canin a parody of Cline (which parody name has been used by Plaintiffs since March 2012 in connection with Brian Lichtenberg, LLC Products distributed in interstate commerce); and Bucci a parody of Gucci (which parody name has been used by Plaintiffs since December 2010 in connection with Brian Lichtenberg, LLC Products distributed in interstate commerce). 12 The Brian Lichtenberg Designer Parodies make up the BLTEE line offered by Plaintiffs. 13 Brian Lichtenberg Designer Parodies have been very successful. They are worn by celebrities such Miley Cyrus, Kim Kardashian, Jessica Alba, Ciara (Ciara Princess Harris), Vanessa Hudgens, Kanye West, Megan Fox, Nina Garcia, Joel Madden, Gwen Stefani and Jasmine Tookes. Brian Lichtenberg Designer Parodies are often featured in the media. 14 Each Brian Lichtenberg Designer Parody mimics the font of the logo being parodied and certain other aspects of the original designer logo, and places the logo on uniquely designed TShirts, muscle T-shirts, sweatshirts, beanie caps and baseball caps. Each of the T-Shirts, sweatshirts, beanie caps, and baseball caps are recognizable by the public as being Brian Lichtenberg Designer Parodies because of the unique stitching of the fabrics, the size and placement of the parody labels, the color schemes, the fabric and garment choices, and the materials and font style used for the labels. BRIAN LICHTENBERG, LLCs sweatshirts and tshirts use very specific stitching, fabrics and labels, which are not generally used by sweatshirt and t-shirt designers and vendors. BRIAN LICHTENBERG makes all final decisions pertaining to the look and feel of all his clothing lines, which bear his name. 15 In late December 2011, BRIAN LICHTENBERG began ruminating about the idea of
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B.L. Decl., 13, 15, 30, 166 and Exhibit 5 attached thereto; Declaration of Reda Bouissa filed concurrently herewith (Bouaissa Decl.), 24-27; Declaration of Fraser Ross filed contemporaneously herewith (Ross Decl.), 3-6. 13 B.L. Decl., 5 and Exhibit 2 attached thereto (Registered trademark name of BLTEE) 14 B.L. Decl., 13 and Exhibit 5 attached thereto; Bouaissa Decl., 24-27; Declaration of Jennifer Green filed concurrently herewith (Green Decl.), 7. 15 B.L. Decl., 46, 166 and Exhibit 15 attached thereto; Bouaissa Decl., 24. -3EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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using the term, Ballin as a possible fashion spoof of the famous French clothing house, Ballmain. His thought was that he would make a line of Ballin Paris T-shirts and other products similar that of his existing BLTEE line 16. BRIAN LICHTENBERG intended to use the same fabric, the same woven labels, the same stitching and the same colors that were already used in his BLTEE clothing line, which included Homies, Bucci, Feline and Canin. 17 On or about January 29, 2012, BRIAN LICHTENBERG sent an email to Kanye West, the musician and pop icon, with the subject heading titled, STILL BALLIN. The idea
discussed in the email with Mr. West was to replace the name Balmain with the slang phrase Ballin. 18 On or about January 30, 2012, BRIAN LICHTENBERG created a pencil drawing of the Ballin Paris design and logo and showed it to Reda Bouaissa for his comment and review. 19 In November 2012, CWL, as an employee of BRIAN LICHTENBERG, LLC, worked on a Ballin with My Homies project for the company and BRIAN LICHTENBERG, which was a huge success. 20 CWL assisted with graphic design duties as well as helping BRIAN
LICHTENBERG send out the marketing and promotional Homies/Ballin flyers to BRIAN LICHTENBERG, LLCs confidential customers and distributors, all of which was sent from CWLs personal computer. 21 At all times, Reda Bouaissa and BRIAN LICHTENBERG made it very clear to CWL that he was not to use the customer lists and confidential contacts for his or someone elses use. 22 BRIAN LICHTENBERG, LLCs customer/vendor/buyer lists are not public knowledge, but are a compilation of company names, specific contacts, phone numbers
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B.L. Decl., 30-35, 46 and Exhibits 10, 11 and 15 attached thereto. B.L. Decl., 30-35, 46 and Exhibits 10, 11 and 15 attached thereto. 18 B.L. Decl., 32 and Exhibit 10 attached thereto; Bouaissa Decl., 35-37. 19 B.L. Decl., 30-35 and Exhibit 11 thereto; Bouaissa Decl., 35-37. 20 B.L. Decl., 45-49 and Exhibits 15 and 16 attached thereto; Bouaissa Decl., 41-51 and Exhibit 3 attached thereto. 21 B.L. Decl.,45-49 and Exhibits 15-16 attached thereto. 22 B.L. Decl., 45-49 Exhibits 15 and 16 attached thereto; Bouaissa Decl., 2, 42-48, 51 and Exhibit 3 attached thereto.
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(including private numbers), private email addresses, and important notes on such contacts. 23 On or about January 21, 2013, CWL took a full time position with BRIAN LICHTENBERG, LLC. 24 CWL was assigned the task of converting the pencil version of the Ballin Paris design to an electronic design. During the time CWL was employed by BRIAN LICHTENBERG, LLC, he failed to timely complete assignments including but not limited to converting the Ballin Paris hand-drawn design into a computer file. CWL thereby slowed down the ability of BRIAN LICHTENBERG, LLC to commence the manufacture and sale of the Ballin Paris designs. 25 While employed by BRIAN LICHTENBERG, LLC, CWL also called in sick on January 24, 2013, and while out sick communicated with Flair Xu (the BRIAN LICHTENBERG, LLC exclusive manufacturer based in China) asking Flair Xu to produce a product line with specifications that were identical to the specifications for Plaintiffs signature BLTEE line, including the same fabric style, woven labels and the measurements of the labels on both the Main Label and Size Labels that Plaintiffs had been utilizing for years. 26 What has become so popular and created a distinction between Brian Lichtenberg Parody Designs (and Brian Lichtenberg, LLC Products) and other products on the market are the following elements that the public has come to know as exclusive hallmarks of the Plaintiffs products (and which specifications, CWL and A& C are now copying): 27 Fabric 50% polyester/50% cotton fabric. (Defendants A&C and CWL never used a 50/50 polyester/cotton fabric prior to January 2013.) Cut Plaintiffs sweatshirts broke from the norm 5 years ago when they choose to design the garments with a bulky and shapeless look. The BLTEE brand has always made bulky
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B.L. Decl., 6. B.L. Decl., 63-64 . 25 B.L. Decl., 63-69. 26 B.L. Decl., 70-71, 112; Declaration of Flair Xu filed concurrently herewith (Xu Decl.), 16-20. 27 B.L. Decl., 120 -5EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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and shapeless fitting products and the brand is well known for that type of look. (Defendants CWL and A&C never made oversized, bulky and shapeless fitting products prior to January, 2013.) Colors - THE BLTEE collection is mostly made of large graphic tees, sweatshirts and jumpsuits in various reds, hot pink, oranges and blacks. It takes a more humorous approach to fashion as each of its logos plays on high-end fashion brand names and turns them into something different. (If one compares the colors that Defendants CWL and A&C were using prior to January 2013, which included dark tones hues, to the colors A&C is currently using, which are colors exactly like Plaintiffs (orange, black, gold lettering on the muscle tees), it is clear on its face that A&C and CWL has decided to copy the Plaintiffs BLTEE in every single manner.) Labels The BLTEE collection has used over the past 5 years and currently uses very specific Gildan Labels that are cut and folded. (A&C now uses Gildan Labels that cut and folded just like the BLTEE brand.) BLTEE Main Labels and Size Labels are woven with damask material. (Post-January 2013, A&C uses main and size labels woven with damask material.) BLTEE Size Labels: S/M/L/XL made in USA, composition which is 50/50 cotton/polyester. (Post-January 2013, A&C uses Size Labels: S/M/L/XL made in USA, composition, which is 50/50 cotton/polyester.) BLTEE Size Labels are folded to a size of 1.25 x 1.625 inches. (Post-January 2013, A&C Size Labels are folded to a size of 1.25 x 1.625 inches.) BLTEE Main Labels folded to a size of 3.50 x 1.25 inches. (PostJanuary 2013, A&C Main Labels are folded to a size of 3.50 x 1.25 inches just the way BLTEE labels were folded for the past five years.) Stitching - BLTEE Products use woven stitching within the garment/product. (PostJanuary 2013, A&C products use woven stitching within the garment.) Hand Tags - BLTEE Packaging on the hand tags that clearly say, BLTEE BRIAN LICHTENBERG with a Century Gothic font. (Post-January 2013, A&C labels look -6EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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identical to BLTEE products.) Coloring of the Text and Placement on the garment - BL, LLC initially launched the BLTEE brand in late 2010 with very distinctive sweatshirts and loud gold lettering that contained spoof text on the front of the garment. For example, the BLTEE Homis line initially went to market selling a sweatshirt that had a gold Homis lettering on the front of the garment. (Post-January 2013, A&C makes identical muscle tees and various other products with gold text on the front of the garment. Prior to January 2013, A&C never made garments with gold lettering as text on the garments.) Accessories - BLTEE Products have always sold accessories such as beanie caps/hats, sweatshirts, hoodies and muscle t-shirts instead of tank-tops, or scoop neck tees. (PreJanuary 2013, A&C never manufactured beanie hats, baseball caps with white, gold or black embroidery) Embroidery on Beanie Hats and Baseball Caps BLTEE products have always used white, black and gold embroidery on their beanie hats. (Pre-January 2013, A&C never even made beanie hats, let alone used white, black and gold embroidering on their beanies. Post-January 2013, A&C makes caps and beanie hats and uses white, black and gold embroidery on the garments EXACTLY like BLTEE brand products.) Logo Placement BLTEE products like Homies and Bucci place the logo in a large sized font in the middle of the garment, usually with text that is white or black in color. (Pre-January 2013, A&C never placed the logo in a large sized font in the middle of their products.) BLTEE Packaging The unique combination of elements above has created a visual image to consumers when taken all together, clearly denotes the source of the product as being BRIAN LICHTENBERG. Brians use of the cut, color, fabric, stitching, logo placement, accessories, coloring of the text on the garment, style and manner or embroidery and hand tags all make up the packaging for BLTEE and BRIAN -7EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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LICHTENBERG products which has acquired secondary meaning in the marketplace as consumers identify this combination of elements to be a BRIAN LICHTENBERG product. See, Exhibits 47 and 50 attached to the B.L. Decl. for pictures of such unique trade dress. Without knowing that CWL was acting without the permission of Plaintiffs, Flair Xu, BRIAN LICHTENBERG, LLCs exclusive manufacturer, manufactured products for CWL that are identical to Brian Lichtenberg Products. CWL created imitations of Brian Lichtenberg, LLC Products and Brian Lichtenberg Designer Parodies, beginning with the Ballin design and name (hereinafter referred to as the Ballin Imitation), without the consent or authorization of Plaintiffs. 28 On or about late January/early February 2013, when Plaintiffs were in the process of introducing their authentic Ballin products into the marketplace alongside their existing authentic Brian Lichtenberg Designer Parodies, CWL listed his Ballin Imitation products for sale on Defendant A&Cs website and began selling it. 29 On or about late January/early February 2013, Reda Bouaissa, BRIAN
LICHTENBERG, LLCs sales agent, who also served as sales agent for A&C, terminated his relationship with A&C due to CWLs sales of the Ballin Imitation. 30 Since that time CWL and A&C have been contacting various retail
vendors/buyers/customers, including vendors/buyers/customers that CWL found through using Plaintiffs confidential customer lists, and offering the Ballin Imitation to them for retail sale. 31
B.L. Decl., 70-71, 112; Xu Decl., 16-20 and Exhibits A&B attached hererto. B.L. Decl., 76-83. 30 B.L. Decl., 80; Bouaissa Decl., 54-57. 31 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-101, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18; Declaration of Gabrielle Bohlen filed concurrently herewith (Bohlen Decl.), 1-14, 17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 54-60, 65; Green Decl. 16-18; Declaration of Anna Rhie attached as Exhibit A to Declaration of David Graziani filed concurrently herewith (Rhie Decl.), 1-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. -8EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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CWL has also been sending cease and desist letters and harassing emails to BRIAN LICHTENBERG, LLCs largest distributors including but not limited to Kitson, Singer22, Addison + Crescent, Browns Fashion, Colette, Divine USAs and Revolve Clothing, telling them that they must cease and desist from selling the Ballin product by the Plaintiffs, and claiming that CWLs product is the authentic Ballin product. 32 These communications have interfered with existing contracts between Plaintiffs and these entities, and interfered with the prospect of new contracts for additional business. 33 From his work at BRIAN LICHTENBERG, LLC, CWL knew of the existence of these contracts at the time he did the acts that interfered with the contracts 34 and he has stated that his intention is to disrupt the contracts. 35 The communications have also interfered with the prospect of the Plaintiffs obtaining new contracts with the above-named entities. 36 CWL has targeted Natalie Levy, who works for Grey Ant, a NYC based company, with
B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-101, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 54-60, 65-70 and Exhibits 5-7 attached thereto; Green Decl. 16-18 and Exhibits B-E attached thereto; Rhie Decl., 1-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. 33 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-101, 114-118 and Exhibits 26-32, 41 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17; Bouaissa Decl., 54-60, 65-70 and Exhibits 5-7 attached thereto; Green Decl. 16-18 and Exhibits B-E attached thereto; Rhie Decl., 1-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits B-D attached thereto. 34 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-101, 114-118 and Exhibits 26-32, 41-44 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14 and Exhibits A-E; Bouaissa Decl., 54-70 and Exhibits 5-7 attached thereto; Green Decl. 16-18 and Exhibits B-E attached thereto; Rhie Decl., 1-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-D attached thereto. 35 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-101, 114-118 and Exhibits 26-32, 41-44 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14 and Exhibits A-E; Bouaissa Decl., 54-70 and Exhibits 5-7 attached thereto; Green Decl. 16-18 and Exhibits B-E attached thereto; Rhie Decl., 1-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-D attached thereto. 36 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-101, 114-118 and Exhibits 26-32, 41-44 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14 and Exhibits A-E; Bouaissa Decl., 54-70 and Exhibits 5-7 attached thereto; Green Decl. 16-18 and Exhibits B-E attached thereto; Rhie Decl., 1-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-D attached thereto. -9EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
32
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malicious and inflammatory remarks about Brians personal and professional reputation. 37 In the present case, CWL has been making unauthorized use of publicity pictures of authentic Ballin merchandise worn by pop-singer Ciara, Joel Madden (front man of the band GOOD CHARLOTTE), actress Vanessa Hudgens, supermodel Jasmine Tookes, pop star Cassie (Cassie Ventura), actress and model Ashley Benson, fashion journalist Willabelle Ong, musician Skylar Grey, model Stef Bambi, Project Runway Judge and fashion editor Nina Garcia, English musician Ellie Goulding, model Clement Lasserre, Dara (real name: Sandra Park) & Lee Chaelin (of the rock band/group 2NE1), singer/actress Vanessa Hudgens, English pop star Vanessa White, model/actress Amber Rose, model Cara Delivingne, model/actress Helena Bordon and WIZ KHALIFA (real name: Cameron Jibril Thomaz), Kaley Cuoco and Noah Cyrus by
copying and pasting the photographs from the BRIAN LICHTENBERG, LLC website and/or affiliated BRIAN LICHTENBERG, LLC websites such as the BL, LLC Facebook, Instagram and Twitter webpages, onto the A&C website, making it appear that such celebrities are wearing and endorsing the Imitation Ballin. 38 Recently, A&C and CWL have been expanding into copying and marketing imitations (the Imitation Products) of other parts of the Plaintiffs BLTEE line, including products using the name Homie, which name, and the font used, is virtually identical to the parody name of Homies used by Plaintiffs. 39 On February 13, 2013, LICHTENBERG, LLCs copyright
application for Homies South Central was approved for copyright protection with the US Copyright Office and issued Registration #: VA0001854404. 40 The actions of A&C and CWL have caused massive confusion in the marketplace as to which products are authentic Brian Lichtenberg Designer Parodies and which are the A&C
37 38
B.L. Decl., 96-97; Levy Decl., 10-14 and Exhibits A-C attached thereto. B.L. Decl., 91, 98, 102-104, 118-119, 132, 134 & 162 and Exhibits 34, 36 attached thereto; Bardo Decl., 3-14 and Exhibits A, B & C thereto; Green Decl., 18-31 and Exhibits B, C, D & E attached thereto; Bouissa Decl., 66; Benoualid Decl., 8(a) and Exhibit A attached thereto. 39 B.L. Decl., 112, 113, 162-166 and Exhibits 40, 53 and 54 attached thereto. 40 B.L. Decl., 112 and Exhibits 40, 53 and 54 attached thereto. -10EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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Imitation Products. 41 The motives for CWL to take these actions against his brother are many: (1) CWL and A&C have been facing severe financial difficulties 42; (2) CWL has extreme psychological issues and even sometimes takes on a womans personality under the name Stacy 43; and (3) CWL is angry because BRIAN LICHTENBERG did not buy one of CWLs ideas for a product (mainly because CWL wanted BRIAN LICHTENBERG to buy the idea even before CWL told him what the idea was) 44. A&C used to offer authentic BRIAN LICHTENBERG, LLC Products on its website, but that relationship was terminated when A&C failed to pay Plaintiffs for the products it sold. 45 Now, A&C is offering the Imitation Products on its website. 46 Indeed, before undertaking the actions that he did, CWL told Reda Bouiassa, that he was going to financially destroy his brother by taking his brothers products and selling them as his own. 47 II. LEGAL STANDARD Courts apply the preliminary injunction factors in deciding whether to grant a temporary restraining order (TRO). See, Stuhlbarg Intl Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839, n. 7 (9th Cir. 2001). A party requesting a TRO and a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
41
B.L. Decl., 107, 131-138,162, 164; Green Decl. 10, 18-42; Bouaissa Decl., 60-64; Ross Decl., 14-17 and Exhibit D and E attached thereto; Bohlen Decl., 10-14, 17; Levy Decl. 1-14; Rhie Decl., 1-7 and Exhibits A and B attached thereto; Declaration of Claude Benoualid filed concurrently herewith (Benoualid Decl.) 7-10 and Exhibits A-C attached thereto. 42 B.L. Decl., 18, 21-26, 41-42; Bouaissa Decl., 13-27. 43 B.L. Decl., 58; Bouaissa Decl., 16-18 44 B.L. Decl., 53-57; Bouaissa Decl., 54, 57 45 B.L. Decl. 20; Bouaissa Decl., 27. 46 B.L. Decl. 61, 76, 100, 119; Bouaissa Decl., 56; Green Decl. 10-12, 27, 35, 42 and Exhibit G attached thereto. Levy Decl., 14; Benoualid Decl., 7-10 and Exhibits A-C attached thererto. 47 B.L. Decl. 80; Bouaissa Decl., 57.
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and that an injunction is in the public interest. Network Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137, 1144 (9th Cir. 2011) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The Ninth Circuit has put a gloss on that standard, with a sliding scale approach that: allows a plaintiff to obtain an injunction where he has only shown serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiffso long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest. Developmental Services Network v. Douglas, 666 F.3d 540, 544 (9th Cir. 2011); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). The Lanham Act specifically provides for injunctive relief for violations of the provisions of Section 43(a) of the Lanham Act. 15 U.S.C. 1116(a). In addition, under such section: Any such injunction may include a provision directing the defendant to file with the court and serve on the plaintiff within thirty days after the service on the defendant of such injunction, or such extended period as the court may direct, a report in writing under oath setting forth in detail the manner and form in which the defendant has complied with the injunction. Any such injunction granted upon hearing, after notice to the defendant, by any district court of the United States, may be served on the parties against whom such injunction is granted anywhere in the United States where they may be found, and shall be operative and may be enforced by proceedings to punish for contempt, or otherwise, by the court by which such injunction was granted, or by any other United States district court in whose jurisdiction the defendant may be found. The California Uniform Trade Secrets Act also provides for injunctive relief for violations of its provisions. Cal. Civ. Code 3426.2(a). III. ARGUMENT A. PLAINTIFFS ARE LIKELY TO SUCCEEED ON THE MERITS OF THEIR CLAIMS 1. Violation of Section 43(a) of the Lanham ActUnfair Competition
23 24 25 26 27 28 Section 43(a) of the Lanham Act creates a federal cause of action for unfair competition. -12EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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This statutory provision prohibits the sale of goods by use of: any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, which(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person 15 U.S.C. 1125(a) In the Ninth Circuit, there are eight factors to be considered when determining the
7 likelihood of confusion: (1) strength of the word, term, name, symbol or device; (2) proximity of 8 the goods; (3) similarity of the word, term, name, symbol or device; (4) evidence of actual 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendants intent in selecting the word, term, name, symbol or device; and (8) likelihood of expansion of the product lines. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-349 (9th Cir. 1979). A likelihood of confusion exists when consumers are likely to assume that a product or service is associated with a source other than its actual source because of similarities between the two sources marks, trade dress or marketing techniques. Metro Publishing, Ltd. v. San Jose Mercury News, 987 F.2d 637, 640 (9th Cir. 1993) When the goods produced by the defendants compete for sales with those of the plaintiff, a violation of Section 43(a) will usually be found if the marks are sufficiently similar that confusion can be expected. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348 (9th Cir. 1979). In light of the virtual identity of marks, if they were used with identical products or services likelihood of confusion would follow as a matter of course. Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1056; See, also, Lindy Pen Co. v. Bic Pen Corp., 796 F.2d 254, 256-57 (9th Cir. 1986). In the present case, the Defendants have begun offering products that are identical to those of the Plaintiffs. Defendants have begun to offer T-Shirts, muscle T-Shirts, sweatshirts, beanie caps and baseball caps that are identical to those that have been sold by the Plaintiffs for
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years. Indeed, Defendant CWL, when ordering the manufacture of the first batch of such Imitation Products earlier this year (the first such Imitation Products being Imitation Ballin), ordered them from the exclusive manufacturer of the Plaintiffs products, and demanded the exact same specifications for such products as those utilized by the Plaintiffs. 48 The combination of cut, color, style, fabric, stitching, label sizes, text, logo placement, font and packaging of Plaintiffs products have come to uniquely identify the products as being those of BRIAN LICHTENBERG in the minds of the consuming public. 49 Through extensive advertising campaigns in mainstream and fashion magazines and other periodicals, and placement of the BRIAN LICHTENBERG products on television, music videos and in motion pictures such features have acquired secondary meaning and come to signify an authentic BRIAN LICHTENBERG product. 50 Defendants wrongful use of the same cut, color, style, fabric, stitching, label sizes, text, logo placement, font and packaging in their Imitation Products are not only likely to cause confusion but have actually caused confusion in the minds of the public and has deceived the public into thinking the Imitation products are BRIAN LICHTENBERG products. 51 The Declaration testimony of Flair Xu, the sole manufacturer of BRIAN LICHTENBERG products, evidences that Defendants CWL and A&C, in making their Imitation Products, deliberately copied the unique specifications for BRIAN LICHTENBERG products. B.L. Decl., 70-72 and Exhibit 22 and 23 attached thereto; Xu Decl., 12-30 and Exhibits A-E attached thereto. 49 B.L. Decl., 120, 166; Bouaissa Decl., 25, 36, 67-70 and Exhibits 5-7 attached thereto; Benoualid Decl., 7-10 and Exhibits A-C attached thereto; Xu Decl., 8-10, 28; Green Decl., 5-12; Declaration of Jasmine Tookes filed concurrently herewith (Tookes Decl.), 7-9; Rhie Decl., 1-7 and Exhibits A and B attached thereto; Ross Decl., 4-7 and Exhibit A attached thereto; Bohlen Decl., 3. 50 B.L. 13 and Exhibit 3 attached thereto; Tookes Decl. 1-6; Bouaissa Decl., 1-15; Green Decl., 7. 51 B.L. Decl., 107, 131-138,162, 164; Green Decl. 10, 17, 26, 35-37, 41-42; Bouaissa Decl., 60-70 and Exhibits 5-7 attached thereto; Ross Decl., 16-17 and Exhibit E attached thereto; Bohlen Decl., 17; Levy Decl., 14; Rhie Decl., 1-7 and Exhibits A and B attached thereto; Benoualid Decl., 7-10 and Exhibits A-C attached thereto.
48
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On or about February 26, 2013, at approximately 6:18 am, and on or about March 4, 2013 at approximately 7:02 am and 5:09 pm, BL contacted me at my flairxu@yeah.net email address from his brian@brianlichtenberg.com email address, regarding shipping the labels CWL requested in the January 31, 2013 Green City purchase order #CGGF13002. I informed him that I did in fact make custom labels for A&C, which were identical to BLs labels used in his BLTEE Products and that CWL was interested in other distinctive cuts, colors, packaging and styles that were identical to the BLTEE Products. I told BL that CWL informed me that they were working together on a new clothing line for the A&C label. [emphasis added]. See, Flair XU Decl., 28 and Exhibit E attached thereto. Evidence of deliberate copying alone suffices to show secondary meaning and infer a likelihood of confusion. See Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1264 (9th Cir. 2001). Implicit in that inference is that the trademark or trade dress has acquired secondary meaning. See Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 845-46 (9th Cir. 1987) (evidence of copying is entitled to great weight because defendant is presumed able to accomplish its goal); Fryer v. Brown, 2005 WL 1677940 *3 (W.D. Wash. July 15, 2005) (evidence of deliberate copying establishes a prima facie case of secondary meaning and presumes likelihood of confusion). [The rationale for this presumption is that when a defendant copies the trademark of a competitor, it is likely that he intended to appropriate some commercial advantage or benefit that his competitor derived from the use of the mark. Fryer, 2005 WL 1677940 at *3.] Likelihood of confusion is not based on a side-by-side comparison, because the knock-off is never sold right next to the trademarked one. Levi Strauss, 632 F.2d at 822 (Wrangler label insufficient to distinguish Blue Bell's jeans from Levi's). While a side-by-side comparison is not necessary to establish likelihood of confusion, such a side-by-side comparison of the infringing and legitimate apparel is contained in Exhibit 47 to the B.L. Decl. Such comparison results in one inescapable conclusion: Defendants set out to copy Plaintiffs trade dress and they succeeded. The likelihood of confusion in the public mind between the authentic BRIAN LICHTENBERG products and the Imitation Products produced by CWL and A&C is increased by the fact that CWL and A&C stole the customer lists of the Plaintiffs and are marketing the -15EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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fake products to the same vendors and distributors and at the same trade shows that Plaintiffs use for the authentic BRIAN LICHTENBERG products. 52 Plaintiffs are entitled to protection of its unregistered trademark names (Ballin Paris, Homies, Fline, Canin, and Bucci) under Section 43(a) of the Lanham Act because such names have been used by Plaintiffs (and, until the infringement by CWL and A&C, no one else) in interstate commerce for many years. These marks have no functionality and are
suggestive, arbitrary and fanciful. In addition, the marks have acquired distinctiveness because they have come to stand for BRIAN LICHTENBERG designs and BRIAN LICHTENBERG Products in the minds of the public. 53 Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768-769 (1992); International Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d. 819, 824 (9th Cir. 1993). 2. Violation of California Uniform Trade Secrets Act; Constructive Trust of Ballin Trademark; Infringement of Ballin and Ballin Paris Trademarks by Defendants Under the California Uniform Trade Secrets Act, Cal. Civ. Code 3426 et seq., actual or threatened misappropriation of trade secrets may be enjoined. Cal. Civ. Code 3426.2. Under Cal. Civ. Code 3426.1(b): Misappropriation means: (1) (2) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or Disclosure or use of a trade secret of another without express or implied consent by a person who: (A) Used improper means to acquire knowledge of the trade secret; or (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was:
52
B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-101, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17; Bouaissa Decl., 54-60, 65; Green Decl. 16-18; Rhie Decl., 3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18. 53 B.L. Decl., 120, 166; Bouaissa Decl., 25, 36, 67; Benoualid Decl., 7-10 and Exhibits A-C attached thereto; Xu Decl., 8-10, 28; Green Decl., 5-12; Tookes Decl., 7; Rhie Decl., 2-7 and Exhibits A and B attached thereto; Ross Decl., 4-6; Bohlen Decl., 3. -16EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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(i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy or limit its use. Under Cal. Civ. Code 3426.1(a): Improper means includes theft,[or] breach or inducement of a breach of a duty to maintain secrecy. Under Cal. Civ. Code 3426.1(d): Trade Secret means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. In the present case, CWL, while employed by the Plaintiff to assist with converting to an electronic file the confidential pencil design by BRIAN LICHTENBERG of the new Ballin Paris line of clothes that were to be produced and sold by Plaintiffs, and knowing that the Ballin and Ballin Paris names were to be an integral part of such line of clothing, stole the design and the names and began producing Imitation Ballin products using the Ballin name. A&C, knowing that the design and names had been stolen, participated with CWL in producing the Imitation Ballin using the stolen trade secrets. Thus, both CWL and A&C are liable for misappropriation of trade secrets under the California Uniform Trade Secrets Act. In addition, CWL and A&C should be deemed to be holding in constructive trust for Plaintiffs any common law trademark rights they may have acquired in and to the name Ballin by their possible unlawful first use of such name in commerce. A constructive trust is an equitable remedy that compels the transfer of wrongfully held -17EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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property to its rightful owner. Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904,908-909 (9th Cir. 2010). A plaintiff seeking imposition of a constructive trust must show: (1) the existence of a res (property or some interest in property); (2) the right to that res; and (3) the wrongful acquisition or detention of the res by another party who is not entitled to it. Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904,909 (9th Cir. 2010). In the present case, the res are the common law trademark rights in and to the name Ballin. The Plaintiffs have the right to that res because they developed the name first and first developed the idea to use it with a line of clothing that include T-shirts, beanies, and other clothing. CWL wrongfully acquired the res through theft and violation of the California Uniform Trade Secrets Act. Therefore, the use of the name Ballin by CWL and A&C unlawfully infringes on the rights of Plaintiffs in and to that name that CWL and A&C are holding in constructive trust. Plaintiffs are entitled to injunctive relief under both the California Uniform Trade Secrets Act and the Lanham Act. CWL and A&C also misappropriated the customer lists and design specifications of Plaintiffs and Plaintiff are entitled to injunctive relief under the California Uniform Trade Secrets Act with respect to those as well. 3. False Advertising under Section 43(a) of Lanham Act
Section 43(a) of the Lanham Act creates a federal cause of action for unfair competition through false advertising. This statutory provision prohibits the sale of goods by use of: any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, which (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another persons goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. 1125(a) -18EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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54
The Lanham Act specifically provides for injunctive relief for violations of the provisions of Section 43(a) of the Lanham Act. 15 U.S.C. 1116(a) In the present case, CWL has been making unauthorized use of publicity pictures of authentic Ballin merchandise worn by pop-singer Ciara, Joel Madden (front man of the band GOOD CHARLOTTE), actress Vanessa Hudgens, supermodel Jasmine Tookes, pop star Cassie (Cassie Ventura), actress and model Ashley Benson, fashion journalist Willabelle Ong, musician Skylar Grey, model Stef Bambi, Project Runway Judge and fashion editor Nina Garcia, English musician Ellie Goulding, model Clement Lasserre, Dara (real name: Sandra Park) & Lee Chaelin (of the rock band/group 2NE1), singer/actress Vanessa Hudgens, English pop star Vanessa White, model/actress Amber Rose, model Cara Delivingne, model/actress Helena Bordon and WIZ KHALIFA (real name: Cameron Jibril Thomaz), model/actress Kaley Cuoco and actress Noah Cyrus, by copying and pasting the photographs from the BRIAN LICHTENBERG, LLC website and/or affiliated BRIAN LICHTENBERG, LLC websites such as the BL, LLC Facebook, Instagram and Twitter webpages, onto the A&C website, making it appear that such celebrities are wearing and endorsing the Imitation Ballin. 54 4. Intentional Interference with Existing Contracts and Prospective Economic Relations.
The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendants knowledge of this contract; (3) defendants intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Pacific Gas & Electric Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 1126 (Cal. App. 1990), internal citations omitted.) [A] cause of action for intentional interference with contract requires an underlying B.L. Decl., 91, 98, 102-104, 118-119, 132, 134 & 162 and Exhibits 34, 36 thereto; Bardo Decl., 3-14 and Exhibits A, B & C thereto; Green Decl., 18-31 and Exhibits B, C, D & E attached thereto; Bouissa Decl., 66; Benoualid Decl., 8(a) and Exhibit A attached thereto. -19EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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enforceable contract. Where there is no existing, enforceable contract, only a claim for interference with prospective advantage may be pleaded. (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 601) CWL has been sending cease and desist letters and harassing emails to BRIAN LICHTENBERG, LLCs largest distributors including but not limited to Kitson, Flip Munich, Singer22, Addison + Crescent, Browns Fashion, Colette, Divine USA, Grey Ant (Natalie Levy) and Revolve Clothing, telling them that they must cease and desist from selling the Ballin product by the Plaintiffs, and claiming that CWLs product is the authentic Ballin product. 55 These communications interfered with existing contracts between Plaintiffs and these entities, and interfered with the prospect of new contracts for additional business. 56 From his work at BRIAN LICHTENBERG, LLC and otherwise, CWL knew of the existence of these contracts at the time he did the acts that interfered with the contracts 57 and he had previously stated that his intention was to disrupt the contracts. 58 The communications have also interfered with the prospect of the Plaintiffs obtaining new contracts with the above-named entities. 59 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-101, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 54-60, 65; Green Decl. 16-18; Rhie Decl., 3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. 56 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-101, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 54-60, 65; Green Decl. 16-18; Rhie Decl. 3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. 57 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-106, 109, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 57, 65; Green Decl. 16-18; Rhie Decl. 3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. 58 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-106, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 54-60, 65; Green Decl. 16-18; Rhie Decl. 3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. 59 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-106, 109, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 54-60, 65; Green Decl. 16-18; Rhie Decl. -20EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
55
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5.
Likely to Prevail on the Merits
Thus, based upon the facts and law set forth above, Plaintiffs are likely to prevail on the merits of their claims. Alternatively, at the very least, Plaintiffs have satisfied the Ninth Circuit sliding scale for injunctions by showing serious questions going to the merits and, as set forth below, a balance of hardships that tips sharply towards the plaintiff, a likelihood of irreparable injury and that the injunction is in the public interest. B. IRREPARABLE HARM
Although there is no longer a presumption of irreparable harm in trademark infringement cases (see, Flexible Lifeline Systems, Inc. v. Precision Lift Inc., 654 F.3d 989 (9th Cir. 2011)), Plaintiffs have shown that they are suffering actual irreparable harm. There is confusion in the marketplace among distributors, retailers and customers, who are unable to determine what is authentic BRIAN LICHTENBERG, LLC Products and what is the Imitation Products. 60 Confusion in the marketplace is increased by the fact that BRIAN LICHTENBERG and CWL are brothers that share the same last name, and that A&C (which is owned by CWL) used to actually offer authentic BRIAN LICHTENBERG, LLC Products and is now relentlessly copying publicity/promotional pictures of numerous celebrities wearing authentic BRIAN LICHTENBERG BLTEE Ballin Paris merchandise and apparel and pasting (displaying) those pictures onto the A&C Website and affiliated A&C websites, in order to mislead and confuse consumers into thinking that the celebrities are wearing products/garments produced by A&C and/ CWL, when in fact, the truth is that those celebrities are wearing BRIAN LICHTENBERG products. 61 This confusion is growing daily, the longer the
3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. 60 B.L. Decl., 107, 131-50,162, 164 and Exhibits 51, 52; Green Decl. 10, 18-42; Bouaissa Decl., 60-64; Ross Decl., 14-17 and Exhibits B-E attached thereto; Bohlen Decl., 10-14, 17; Levy Decl. 1-14; Rhie Decl. 3-7 and Exhibits A and B attached thereto; Benoualid Decl., 7-10 and Exhibits A-C attached thereto. 61 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-106, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17 and Exhibits A, -21EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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Imitation Products are being distributed and advertised. 62 Many of the Imitation Products are of inferior quality and this is doing permanent injury to the reputation of BRIAN LICHTENBERG, LLC Products in the marketplace. 63 In addition, the claims by CWL and A&C that the Plaintiffs did not create and do not own Homies, Feline, Ballin or Ballin Paris is causing damage to the business of Plaintiffs, a harm to the reputation of the Plaintiffs, and damage to the goodwill of the public towards the Plaintiffs that will never be recovered if CWL and A&C are not immediately stopped. 64 Plaintiffs have diligently pursued the present application for injunctive relief. The period of time between filing of the Complaint and the filing of this ex parte application was due to the time necessary to prepare the voluminous declarations supporting the application and obtain the signatures of declarants spread out throughout the world. It in no way indicates that Plaintiffs are not incurring irreparable harm that is growing by the day. Even after the filing and service of the Complaint, Defendants have not slowed the pace of their actions of copying and marketing Plaintiffs products.
B, C attached thereto; Bouaissa Decl., 54-60, 65, 67; Green Decl. 16-18; Rhie Decl., 3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. 62 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-106, 114-118, 166 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 54-60, 65, 67; Green Decl. 18-37; Rhie Decl., 3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. 63 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-106, 114-118, 166 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 54-60, 65; Green Decl. 18-42; Rhie Decl., 3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. 64 B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-106, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18 and Exhibits A-E attached thereto; Bohlen Decl., 1-14, 17 and Exhibits A, B, C attached thereto; Bouaissa Decl., 54-60, 65; Green Decl. 18-42; Rhie Decl., _3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto. -22EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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C.
BALANCE OF EQUITIES
In the present case, the balance of the equities tips sharply in favor of the Plaintiffs. Plaintiffs have been in business for more than a decade, have developed a favorable reputation in the marketplace for their products by spending hundreds of thousands of dollars on product development, publicity and advertising, and take painstaking efforts to assure that their products are of the highest quality. 65 This time, effort and money will be wasted if the injunctive relief is not granted. On the other hand, CWL and A&C stole the trademarked names, stole the product specifications, stole the customer lists, interfered with Plaintiffs ongoing and prospective business relationships and have been even stealing the publicity photos of Plaintiffs in order to sell their own Imitation Products. 66 CWL and A&C have invested nearly nothing in these efforts and thus, the granting of injunctive relief will not injure their legitimate interests. D. PUBLIC INTEREST
It is in the public interest to encourage innovation and monetary investment in the fashion industry and elsewhere by protecting the intellectual property rights of those who first develop ideas for products wanted by the consuming public. It is also in the public interest to protect the public from imitation products and the confusion that result, and to protect the public from those who would lie and steal to produce and market those imitation products. IV. PRIOR INJUNCTIVE RELIEF IN STATE COURT ACTION Prior to bringing the present action, Plaintiffs had brought purely state law claims (which did not include Lanham Act claims) in the Superior Court of California for Los Angeles County. (Case No. BC503835.) Plaintiffs have dismissed those claims in order to bring the present B.L. Decl. 12; Green Decl., 9; Bouissa Decl. 40-43. B.L. Decl., 6, 59,69, 71-73, 76, 79, 84-106, 114-118 and Exhibits 26-32 attached thereto; Ross Decl., 7-18; Bouaissa Decl., 54-60, 65; Green Decl. 18-42; Rhie Decl., _3-7 and Exhibits A and B attached thereto; Levy Decl. 10-18 and Exhibits A-C attached thereto; Xu Decl. 8-28.
66 65
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federal Lanham Act claims and have them heard by a federal court. 67 In connection with the state court case, the state court issued a temporary restraining order against CWL and A&C, but later declined to issue a preliminary injunction, finding that Plaintiffs had not yet presented sufficient declaratory evidence. 68 (This is part of the reason why Plaintiffs have so painstakingly gathered declaratory evidence to support the present application) Plaintiffs cured the deficiency and had brought a renewed noticed motion for injunctive relief but before the hearing on the noticed motion, dismissed the state court action to bring the present action. 69 V. PLAINTIFFS SHOULD BE GRANTED CERTAIN EXPEDITED DISCOVERY Early discovery is permitted in appropriate cases with leave of the Court. See, Fed. R. Civ. P. 26(d). In determining whether a case warrants early discovery, courts require the moving party to show good cause. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party. Id at 276; See, Fimab-Finaziaria Maglificio Bielless Fratelli Fila S.p.A. v. Kitchen, 548 F.Supp. 248, 250 (S.D. Fla. 1982)(citation omitted) (Expedited discovery should be granted when some unusual circumstances or conditions exist that would likely prejudice the party if [it] were required to wait the normal time.). Applying this standard, courts have recognized that good cause is frequently found in cases involving claims of infringement and unfair competition. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). The instant case provides a compelling basis for discovery. Time is of the essence in determining the entities that have illegally manufactured the Imitation Products and the entities that Defendants CWL and A&C are using to sell and distribute the Imitation Products. Once word of this lawsuit and the TRO reaches those entities, Plaintiffs ability to identify, locate and
67 68
Graziani Decl., 5. Graziani Decl., 5-8. 69 Graziani Decl., 7. -24EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION, AND AN ORDER FOR EXPEDITED DISCOVERY
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serve process on those entities will be greatly hampered, and the potential for spoliation of evidence increased. 70 Plaintiff should, therefore, be permitted to serve formal discovery upon defendants immediately, and prior to compliance with the early meeting and disclosure requirements of Fed. R. Civ. P. 26, to obtain information about these manufacturing and distribution entities before it is too late. VI. COMPLIANCE WITH LOCAL RULE 7-19.1 In accordance with Local Rule 7-19.1, it is the duty of the attorney making an ex parte application to make a reasonable, good faith effort orally to advise counsel for all other parties, if known, of the date and substance of the proposed ex parte application. No counsel has yet entered any appearance on behalf of any defendants. However, Plaintiffs counsel, on October 17, 2013 notified the attorney who acted as counsel for CWL and A&C in the state court action, through telephone, of Plaintiffs intention to file the instant ex parte application. 71 A copy of the ex parte application and supporting declarations are being sent out to be hand delivered to such counsel at the same time courtesy chambers copies are being delivered to the Court. VII. CONCLUSION Based on the foregoing, Plaintiffs this Court should issue a temporary restraining order, an order requiring Defendants to show cause as to why the Court should not issue a preliminary injunction, and an order for expedited discovery. Dated: October 17, 2013
DAVID GRAZIANI, ESQ. RONALD D. TYM, ESQ. Attorney for Plaintiffs Brian Lichtenberg, LLC, and Brian Lichtenberg
70 71
Graziani Decl., 8. Graziani Decl., 4.
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DAVID GRAZIANI, ESQ., (SBN#276009) The Law Offices of David Graziani, P.C. 10880 Wilshire Blvd., Suite 1101 Los Angeles, CA 90024 Telephone: (310) 935-4088 Facsimile: (310) 935-4076 RONALD D. TYM, ESQ. (SBN#195339) The Tym Firm 7120 Carlson Circle, #263 Canoga Park, CA 91303 Telephone: (818) 836-1428 Facsimile: (818) 337-2026 Attorneys for Plaintiffs, Brian Lichtenberg, LLC and Brian Lichtenberg UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BRIAN LICHTENBERG, LLC, a California limited liability company; and BRIAN LICHTENBERG, an individual, Plaintiffs, vs. ALEX & CHLOE, INC., a California corporation; CHRISTOPHER WALTER LICHTENBERG, an individual; MARKED SHOWROOM, LLC, a California limited liability company; JACQUELINE YI, an individual; TU TRAN, an individual; KYLE MOCKETT, an individual; KAYTEE ENRIGHT, an individual, Defendants. Case No. 2:13-CV-6837 DDP (PJWx) [PROPOSED] TEMPORARY RESTRAINING ORDER; ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION; ORDER FOR EXPEDITIED DISCOVERY
The Court has considered the Ex Parte Application of Plaintiffs BRIAN LICHTENBERG and BRIAN LICHTENBERG, LLC (hereinafter Plaintiffs) wherein Plaintiffs respectfully moved for a Temporary Restraining Order (hereinafter TRO), an Order to Show Cause for a Preliminary Injunction, and an order granting certain expedited discovery against ALEX & 1
[PROPOSED] ORDER
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CHLOE, INC., a California corporation; CHRISTOPHER WALTER LICHTENBERG, an individual; MARKED SHOWROOM, LLC, a California limited liability company;
JACQUELINE YI, an individual; TU TRAN, an individual; KYLE MOCKETT, an individual; and KAYTEE ENRIGHT, an individual (hereinafter Defendants), based on an action for: unfair competition, false designation of origin, unregistered trademark infringement,
counterfeiting/passing off, and false advertising arising under Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a); violation of the California Trade Secrets Act, Cal Civ. Code 3426 et seq.; and intentional interference with prospective economic relations and contractual relations. Having considered all the papers, the Court finds that Plaintiffs have shown a likelihood of success on the merits of their claims and that they will suffer irreparable harm unless Defendants violations are enjoined. The Court also finds that a TRO is necessary to prevent immediate and irreparable injury to Plaintiffs before the hearing on the Order to Show Cause regarding the preliminary injunction can take place. The Court further finds that the balance of equities and interests of justice support granting such relief. Accordingly, this Court enters the following orders: TEMPORARY RESTRAINING ORDER It is hereby ordered that Defendants, their officers, directors, agents, representatives, successors or assigns, and all persons acting in concert or in participation with any of them from, and each of them, be immediately temporarily restrained from: (a) The manufacture, distribution, delivery, shipment, import, export, advertisement, marketing, promoting, consignment or sale of Imitation Ballin or other Imitation Products (as defined in and identified in the Ex Parte Application) or any other products produced by Plaintiffs or confusingly similar to Plaintiffs products, or that otherwise bear, contain, display, or utilize any of Plaintiffs trademarks, trade name or trade dressing including, but not limited to, any of Plaintiffs trademarks, trade dressing and products at issue in this action; (b) The unauthorized use, in any manner whatsoever, of any of Plaintiffs trademarks, including but not limited to: Ballin, Ballin Paris, Homie, Homies or any of the Plaintiffs 2
[PROPOSED] ORDER
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other trademarks at issue in this action, or the unauthorized use, in any manner whatsoever, of any of Plaintiffs trade name or trade dress, including but not limited to Plaintiffs trade dress at issue in this action, any variants, colorable imitations, translations and/or simulations thereof and/or any items that are confusingly similar thereto, including specifically: (i) on or in conjunction with any product or service; and (ii) on or in conjunction with any advertising, promotional materials, labels, hangtags, packaging, or container; (c) The use of any trademark, trade name or trade dress that falsely represents, or is likely to confuse, mislead or deceive purchasers, customers, or members of the public and cause them to believe that the unauthorized product imported, exported, manufactured, reproduced, distributed, assembled, acquired, purchased, offered, sold, transferred, brokered, consigned, distributed, stored, shipped, marketed, advertised and or promoted by Defendants originate from Plaintiffs, or that said merchandise has been sponsored, approved, licensed by, or associated with Plaintiffs, or is, in some way, connected or affiliated with Plaintiffs; (d) Engaging in any conduct that falsely represents that, or is likely to confuse, mislead, or deceive purchasers, customers, or members of the public to believe that Defendants themselves are connected with, or in some way sponsored by or affiliated with Plaintiffs, or purchase from or otherwise have a business relationship with Plaintiffs. (e) Affixing, applying, annexing, or using in connection with the manufacture,
distribution, advertising, sale, and or offering for sale or other use of any goods, a false description or representation, including words or symbols, tending to falsely describe or represent such goods as being those of Plaintiffs; (f) Moving, returning, hiding, or disposing of, in any manner, any Imitation Ballin or
other Imitation Products or any other products confusingly similar to Plaintiffs products, or that otherwise bear, contain, display, or utilize any of Plaintiffs' trademarks, trade name, or trade dress, any derivation or colorable imitation thereof, or any mark confusingly similar thereto or likely to dilute or detract from the Plaintiffs' trademarks, trade name or trade dress; 3
[PROPOSED] ORDER
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(g) Using in any way any of Plaintiffs customer and distributor lists; and (h) Assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in the above subparagraphs (a) through (g), or effecting any assignments or transfers, forming new entities or associations, or utilizing any other device for the purpose of circumventing or otherwise avoiding the prohibitions set forth in subparagraphs (a) through (g) IT IS FURTHER ORDERED that Defendants and their agents, employees, officers, directors, owners, attorneys, representatives, successor companies, related companies, and all persona acting in concert of participation with them, and each of them, with notice of this Order, shall preserve, and not destroy, erase, delete, dispose of, or alter any documents or records or evidence, in whatever format, including electronic documents, computer files, computer discs and drives, that relate to, reflect, record, or contain information regarding the manufacture, distribution, promotion, marketing, advertising, purchase, sale, offer to sell, trafficking, import, export, payment, storage, and/or shipment of any and all products bearing Plaintiffs trademarks, trade name or trade dress. IT IS FURTHER ORDERED that this TRO shall remain in effect until the date for hearing on the Order to Show Cause set forth below, or until such further dates as set by the Court or stipulated by the parties. ORDER TO SHOW CAUSE IT IS ORDERED that Defendants appear before this Court on ___________, 2013 at _____________.m. to show cause why a preliminary injunction should not be issued. Plaintiffs shall serve a copy of this order on Defendants no later than ___________________, 2013. Any response or opposition to the issuance of a preliminary injunction must be filed and personally served on Plaintiffs counsel no later than _______________________, 2013. If, after reviewing the opposition, Plaintiffs counsel considers a Reply necessary and appropriate, he must file and serve it on Defendants no later than ___________________, 2013. 4
[PROPOSED] ORDER
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ORDER GRANTING EXPEDITIED DISCOVERY IT IS ORDERED that Plaintiffs are granted expedited discovery and therefore Plaintiffs are permitted to serve formal discovery upon Defendants immediately and prior to compliance with early meeting and disclosure requirements of Fed. R. Civ. P. 26. IT IS SO ORDERED
Dated: October____, 2013
Hon. Dean D. Pregerson United States District Court Judge
PROPOSED ORDER

Brian Lichtenberg - Motion For TRO

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3. 4. 5. B. C. D. IV. V. VI. VII.

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Likely to Prevail on the Merits

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Graziani Decl., 8. Graziani Decl., 4.

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Dated: October____, 2013

Hon. Dean D. Pregerson United States District Court Judge

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