1

Robert Trevor Simms

tauteur@gmail.com
2 Filmchella
3 578 Washington Blvd #435
Marina del Rey, CA 90292
4
Telephone: 323-369-5466
5 Defendant
6
In Pro Se

7
UNITED STATES DISTRICT COURT
8
CENTRAL DISCTRICT OF CALIFORNIA
9
WESTERN DIVISION
10

11

12 COACHELLA MUSIC FESTIVAL, Case No.: 2:17-CV-06059 BRO

LLC, and GOLDENVOICE, LLC. (GJSx)
13

14 Plaintiffs ROBERT TREVOR SIMMS

OPPOSITION TO PLAINTIFFS
15
v. APPLICATION FOR A
16 PRELIMINARY INJUNCTION
17
ROBERT TREVOR SIMMS. and (DKT.39)
DOES 1-20,
18
DATE: September 25, 2017
19 Defendants. TIME: 1:30 p.m.
CTRM: 7C
20

21 Hon. Beverly Reid OConnell

22

23 [Declaration of Robert Trevor

24 Simms submitted concurrently
herewith]
25

26

27

28

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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 TABLE OF CONTENTS
2
I. INTRODUCTION.....4
3

4 II. FACTUAL BACKGROUND....4

5

6
III. LEGAL ARGUMENT...8
7
A. The Motion for Preliminary Injunction fails because
8
Plaintiff does not hold a valid interest in the Marks......8
9

10
B. Plaintiff cannot show likelihood of confusion.......9
11 C. Plaintiff cannot show a likelihood of irreparable harm....13
12 1. Plaintiffs speculation and conclusory
13
statements of a mere possibility of harm in the
14
future are insufficient....14
15

16 2. Plaintiff has failed to show that monetary

17 damages would be insufficient......15
18
D. The Public Interest Does Not Favor A PI........16
19
E. A substantial bond should be posted to compensate Defendant
20

21
should Plaintiffs PI application be granted.....17
22
IV. CONCLUSION..................17
23

24

25

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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 TABLE OF AUTHORITIES
2
E.I. du Pont de Nemours & Co.,
3
476 F.2d 1357, 177 USPQ 563 (CCPA 1973)9
4

5 City of Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983)...................................14

6 Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc.,
7 No. 12-16868 (9th Cir. filed Dec. 2, 2013)..............................................14,15
8
Mammoth Specialty Lodging, LLC v. We-Ka-Jassa Inv. Fund, LLC, CIVS10-0864
9 27 LKK/JFM, 2010 WL 1539811, at *2 (E.D. Cal. Apr. 16, 2010).......................15
10
Mead Johnson & Co. v. Abbott Labs., 201 F3d 883, 888 (7th Cir. 2000)..............17
11

12
Nutrition 21 v. United States, 930 F.2d 867, 872 (Fed.Cir.1991)...........................15
13 Occupy Sacramento v. City of Sacramento, 24 2:11CV02873MCE,
14 2011 WL 5374748, at *4 (E.D. Cal. Nov.4, 2011)........................................15
15
Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008).......14,15
16

17

18

19

20

21

22

23

24

25

26

27

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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 I. INTRODUCTION
2
Plaintiffs application for order to show cause re preliminary injunction
3
should be denied. First, Plaintiff cannot show a likelihood of establishing
4
that it holds any rights in the Mark at issue, let alone that it will prevail on the
5
merits of this case. Secondly, there is simply no showing of a likelihood of
6
confusion, or irreparable harm to justify the extreme remedy of injunctive
7
relief in this case.
8

9 II. FACTUAL BACKGROUND

10

11
This action is part of an attempt by the COACHELLA VALLEY
12
MUSIC FESTIVAL to force Defendant to abandon the trademark
13
FILMCHELLA (Serial No. 87395026) approved by the United States
14
Patent and Trademark Office. Simms Decl. 22, Ex. 11. Plaintiff
15
COACHELLA is a conglomerate company with no rights in the Trademark
16
and, as set forth below, this lawsuit should subject it and its counsel to Rule
17
11 sanctions.
18
Defendant created FILMCHELLA on January 4th 2017 when he met someone
19
in Los Angeles who was involved with an outdoor theater on a desert
20
campground around the Coachella Valley region. Being a filmmaker and
21
recently finishing his first feature film, Defendant had desires to start his own
22
film festival and distribution company. The name FILMCHELLA came to
23
mind.
24

25
Filmchella is planned for September 29, 30th, and October 1st, 2017.
26

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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 On or around January 4th, 2017 Defendant bought the domain names,
2 acquired the Twitter and social media handles, secured the venue, and began
3 accepting film submissions from filmmakers.
4

5 On January 9th, 2017 Defendant mistakenly hired an online Company by the

6 name of Sharp Filings to register the FILMCHELLA Mark. Sharp Filings
7 was later found out to be an Internet scam that provided no progress on the
8 Marks registration. Simms Decl. 10, Ex. 3.
9

10 On January 23rd, 2017 Defendant formed a California Non Profit

11 Organization named FILMCHELLA, EIN no. 81-5321714. Simms Decl.
12 11, Ex. 4.
13

14 In March 2017 Plaintiff sent an email letter accusing Defendant of Trademark

15 Infringement and Cybersquatting and demanded Defendant turn over his
16 www.filmchella.com domain name. Being that there was a website already
17 parked on the domain, that it was being used in commerce, that the domain
18 was not being offered for sale, that the domain is the name of the Defendants
19 newly formed Non Profit Company, film festival and distribution company,
20 and that the Plaintiff does not own the name FILMCHELLA; Defendant
21 considered the accusations intimidation tactics, made a couple changes to the
22 website, and continued with his business.
23

24 On April 1st, 2017 Defendant filed directly through the United States Patent
25 & Trademark Office for the Trademark FILMCHELLA for the goods and
26 services listed as Film Studio Movie Showings and Planning and
27 Conducting a Series of Film Festivals, none of which the Plaintiff controls.
28 Simms Decl. 13, Ex. 5.
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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 Plaintiff does not own any trademark FILMCHELLA. Plaintiff has never
2 applied for a trademark on the word FILMCHELLA, nor has the Plaintiff
3 ever used the word FILMCHELLA. Furthermore, Coachella Valley Music
4 Festival has never applied for or owned any trademark using the word
5 FILM.
6

7 Defendants Trademark Registration process on FILMCHELLA was

8 assigned to the Trademark Examiner, Nicholas Altree. Like all U.S.
9 Trademark Examiners, he is a lawyer who is highly trained in the Trademark
10 process.
11

12 On April 8th 2017, Nocholas Altree, the Trademark Examiner, notified

13 Defendant that he was assigning the pseudomark Film Chella. Simms
14 Decl. 14, Ex. 6. The notice of pseudo mark states:
15 The USPTO may assign pseudo marks, as appropriate, to new
16 applications to assist in searching the USPTO database for conflicting
17 marks. They have no legal significance and will not appear on the
18 registration certificate.
19

20 Around June 2017, after repeated harassment and threats of lawsuits from
21 Plaintiff, Defendant renamed his event FILMCHILLA in an attempt to
22 appease the Plaintiff.
23

24 On or around June 13th, 2017 Plaintiff summoned Defendant in to meet at

25 Plaintiffs Downtown Los Angeles Office. In attendance at the meeting were
26 Goldenvoices Chief Operating Officer Skip Paige and Development
27 Executive Gopi Sangha. Simms Decl. 20, Ex. 9. Plaintiffs said they were a
28 supporter of film festivals and offered to help Defendant. There was no
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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 mention of Trademark Infringement or Cybersquatting. Plaintiff asked a lot
2 of questions and appeared to be interested in helping Defendant succeed with
3 his festival. There was no mention of the name FILMCHELLA or
4 FILMCHILLA until the end of the meeting when Defendant asked Gopi
5 Sangha where they stand with the name. Gopi told Defendant that he should
6 be able to squeeze that one by (in reference to using Filmchilla).
7

8 On June 24th 2017, Trademark Examiner Nicholas Altree conducted a

9 trademark search to see if there were any existing trademarks that conflict
10 with Filmchella. He found no conflicts. The trademark search was
11 conducted by a computer program and then by manually viewing documents.
12 The automated computer search took 13 seconds, and the full search took 24
13 minutes, 40 seconds. The search looked at a total of 52, 161 existing
14 trademarks and trademark applications. The search looked for conflicting
15 marks using variants of chella, including: chella, chela, schella, schela,
16 shella, shela. No conflicts were found. Simms Decl. 15, Ex. 7.
17

18 The Trademark application for FILMCHELLA was advanced to

19 Publication on July 19th, 2017. Simms Decl. 22, Ex. 11.
20

21 The Trademark application for FILMCHELLA was published on August

22 8th, 2017 along with an Official Notice of Publication Confirmation email
23 from the USPTO. Simms Decl. 23, Ex. 12.
24

25 It wasnt until the USPTO examiner approved the Trademark for

26 FILMCHELLA on August 8th that the Plaintiff decided to sue the
27 Defendant, not because they would receive irreparable harm, but because
28 they want to stop his Trademark registration.
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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 III. LEGAL ARGUMENT
2

3 A. The Motion for Preliminary Injunction fails because Plaintiff does

4 not hold a valid interest in the Marks
5

6 Plaintiff cannot show that it is likely to prevail on its trademark infringement

7 claim because it cannot prove that it holds any rights in the Marks.
8
The evidence in this case shows that:
9

10 (1) The Plaintiffs do not own or have they ever used the Mark
11 FILMCHELLA.
12
(2) Defendant has been using the Mark FILMCHELLA since January
13
2017, which was published for approval by the United States Trademark
14
Examiner on August 8th, 2017. Simms Decl. 23, Ex. 12.
15

16 (3) The United States Trademark examiner did a search and looked at other
17 marks with Chella as well as using different variations on the spelling, and
18 found no conflict with Filmchella. Simms Decl. 15, Ex. 7.
19
(4) Plaintiff Coachella Music Festival does not own any trademark on the
20
word Chella for Arranging, organizing, conducting, and hosting social
21
entertainment events; Entertainment, namely, production of musical events;
22
Organizing cultural and arts events. Plaintiff applied in May 2015 for a
23
trademark on Chella for the above category. That application was made on
24
a 1b basis, meaning the Plaintiff intended to use the mark. The Plaintiff has
25
not ever filed a Statement of Use, even after getting several extensions of
26
time in which to file a SOU. Simms Decl. 20, Ex. 9. If Plaintiff wanted to
27
use the Mark Chella for a festival, they could have simply done so in the
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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 past two years, but they did not.
2
(5) Plaintiffs Trademark Coachella is the name of the geographical
3
location where many businesses operate under the same name Coachella.
4
Simms Decl. 17, Ex. 8. Simms Decl. 31, Ex. 17, 18.
5

6 (6) Plaintiffs event, The Coachella Valley Music and Arts Festival, has never
7 had a film festival component to its program.
8
B. Plaintiff cannot show a likelihood of confusion.
9

10 To succeed on a motion for injunction relief, the moving party must establish
11 a clear likelihood of confusion. Likelihood of confusion is aided by the
12 application of the factors set out in re E.I. du Pont de Nemours & Co., 476
13 F.2d 1357, 177 USPQ 563 (CCPA 1973).
14
Those factors are:
15

16 (1) The similarity or dissimilarity of the marks in their entireties as to

17 appearance, sound, connotation, and commercial impression.
18 (2) The similarity or dissimilarity and nature of the goods . . . described
19 in an application or registration or in connection with which a prior
20 Mark is in use.
21 (3) The similarity or dissimilarity of established, likely-to-continue trade
22 channels.
23 (4) The conditions under which and buyers to whom sales are made, i.e.
24 impulse vs. careful, sophisticated purchasing.
25 (5) The fame of the prior mark
26 (6) The number and nature of similar marks in use on similar goods.
27 (7) The nature and extent of any actual confusion.
28 (8) The length of time during and the conditions under which there has
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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 been concurrent use without evidence of actual confusion.
2 (9) The variety of goods on which a mark is or is not used . . . .
3 (10) The market interface between the applicant and the owner of a prior
4 mark . . . .
5 (11) The extent to which applicant has a right to exclude others from use
6 of its mark on its goods.
7 (12) The extent of potential confusion . . . .
8 (13) Any other established fact probative of the effect of use.
9

10 Plaintiffs Mark COACHELLA is different in appearance, pronunciation,

11 meaning, and has different commercial impressions than Defendants Mark
12 FILMCHELLA.
13
Plaintiffs Mark COACHELLA is for music festivals. Defendants Mark
14
FILMCHELLA is for movie showings.
15

16 COACHELLA tickets are very expensive. FILMCHELLA tickets are

17 very inexpensive.
18
COACHELLA is for music and fashion enthusiasts. FILMCHELLA is
19
for a specialized market of filmmakers.
20

21 Plaintiffs trade channels are mass advertisements via their website and the
22 entertainment press. Defendants channel is specialized by individually
23 targeting filmmakers who have submitted films and their friends.
24
COACHELLA may be famous, but it is also the name of the Coachella
25
Valley geographical region. There are numerous Coachella trademarks.
26
Plaintiffs Mark Chella for events and social gatherings is not yet in use.
27
There has been no statement of use filed, having filed several extensions.
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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 Furthermore, Plaintiff does not, nor have they ever, operated or indulged in
2 any film or movie related activities or businesses. Therefore, when
3 consumers see FILM as the first syllable in Defendants Mark, they do not
4 associate that Mark with Plaintiffs.
5
To continue, there are hundreds of businesses in the region that use
6
COACHELLA or CHELLA in their names. Simms Decl. 31, Ex. 17,
7
18. Contrary to Plaintiffs allegations, the Defendant, as well as the other
8
business using similar Marks, are using the Mark to describe the region, the
9
mountains, the valley, and the vibe, not to mimic the Plaintiffs Marks.
10

11 Even if Plaintiff did have a Trademark on the word Chella for a festival,
12 which they do not, that would still not prevent Defendant from getting a
13 Trademark on Filmchella for a film distribution company and film festival.
14 Compare this situation to the giant music festival, Lollapalooza. Simms
15 Decl. 33, Ex. 19. Since Lollapalooza became hugely popular, many other
16 festivals and companies have used the Palooza ending for their festivals. A
17 look at the LIVE Trademarks using a Palooza ending shows approximately
18 100 Trademarks. Simms Decl. 33, Ex. 20. These include Binge-a-palooza,
19 Marblepalooza, Mango Palooza, Comicpalooza, Bluesapalooza, and dozens
20 more.
21

22 To further cement the fact that there is no likelihood of confusion, the wide
23 publicity given to Coachella suing Filmchella has made sure everyone knows
24 they are not the same or run by the same people. Simms Decl. 39, Ex. 25.
25

26 C. Plaintiff cannot show a likelihood of irreparable harm.

27

28 To succeed on a motion for injunctive relief, the moving party must

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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 establish that he is likely to succeed on the merits, that he is likely to suffer
2 irreparable harm in the absence of preliminary relief, that the balance of
3 equities tips in his favor, and that an injunction is in the public interest.
4 Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008).
5
1. Plaintiffs speculation and conclusory statements of a mere possibility of
6
harm in the future are insufficient.
7

8 Plaintiff has not and cannot meet its burden of establishing a likelihood that
9 irreparable harm is real, imminent, and significantand not just speculative
10 or potential. See Winter v. Natural Resources Defense Council, Inc., 129 S.
11 Ct. at 375- 76; Herb Reed Enterprises, LLC, supra (Those seeking
12 injunctive relief must proffer evidence sufficient to establish a likelihood of
13 irreparable harm.); City of Los Angeles v. Lyons, 461 U.S. 95, 101-102
14 (1983) (plaintiff must show "real and immediate" threat of injury).
15
In support of its claim of irreparable injury, Plaintiff offers nothing more than
16
hearsay, speculation and conjecture that are not supported by any competent
17
evidence. This is especially so given that Coachellas festival is not a film
18
festival and that Coachellawhich purports to be the Plaintiff in this case
19
is suing Defendant over the use of the suffix Chella in the name of the
20
geographical region which we both have events.
21

22 Further cutting against Plaintiffs claim of irreparable harm is the fact that
23 Coachella is suing to prevent Defendant from using the name that was
24 approved by the United States Trademark examiner. Simms Decl. 22, Ex.
25 11.
26
Speculation and conjecture regarding what Defendant is doing and what
27
potential harm could result cannot carry Plaintiffs motion. The mere
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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 possibility of confusion coupled with pure conjecture about harm that
2 Plaintiff might suffer after a chain of unlikely events falls woefully short of
3 the standard in Winter and Herb Reed Enterprises, LLC.
4
Courts have found delay in bringing an infringement action and seeking a
5
preliminary injunction are factors that could suggest a party is not irreparably
6
harmed by the infringement. See, Nutrition 21 v. United States, 930 F.2d 867,
7
872 (Fed.Cir.1991); Occupy Sacramento v. City of Sacramento, 24 2:11CV
8
02873 MCE, 2011 WL 5374748, at *4 (E.D. Cal. Nov.4, 2011)(application
9
for TRO denied for twenty-five day delay); Mammoth Specialty Lodging,
10
LLC v. We-Ka-Jassa Inv. Fund, LLC, CIVS10-0864 27 LKK/JFM, 2010 WL
11
1539811, at *2 (E.D. Cal. Apr. 16, 2010)(application for TRO denied for two
12
week delay).
13

14 Plaintiff has known about Defendants use of the Mark since March of 2017,
15 but has waited six months to file this applicationuntil the Filmchella
16 Trademark was approved. Just as other courts have found that a mere two-
17 week delay is grounds for denying a Preliminary Injunction, Plaintiffs six-
18 month delay alone should defeat this application, especially under the
19 circumstances.
20
2. Plaintiff has failed to show that monetary damages would be insufficient.
21

22 It is difficult to imagine a small outdoor Film Festival will tarnish the value
23 of the Plaintiffs Mark. It is even more difficult to imagine that monetary
24 damages will ultimately prove insufficient to whoever prevails in this action.
25 Plaintiff constantly sells out all of its festivals tickets within the first day of
26 sales opening, showing that its fear that it will not be selling tickets is
27 unfounded. Simms Decl. 35, Ex. 22.
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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 The Defendant, on the other hand, with an event coming up September 29th
2 2017 will most likely suffer a drop in ticket sales and attendance due to this
3 lawsuit; not to mention the Defendants venue cancelled his contract after
4 hearing about the Goldenvoice lawsuit. Many other participants have begun
5 distancing themselves from the festival in fear that the large corporate
6 company Goldenvoice backed by its parent company AEG will stop at
7 nothing to shut Filmchella down.
8

9 AEG Presents has tried numerous times to contact Defendants ticketing

10 platform Eventbrite attempting to shut off ticket sales. Simms Decl. 37, Ex.
11 24.
12

13 Given Plaintiffs failure to establish that monetary damages would be

14 sufficient if Plaintiff could prove its case, the drastic remedy of injunctive
15 relief should be denied.
16

17 D. The Public Interest Does Not Favor A Preliminary Injunction

18

19 Here, the rights and interests of many parties other than Plaintiff and
20 Defendants are at stake. This case involves all the filmmakers who submitted
21 films to our film festival, as well as the promoters, artists, and fans that want
22 to see the films from all over the world. Filmmakers and artists have already
23 bought airline tickets, some coming from as far as Finland, Slovenia, Siberia,
24 and Russia. An injunction would be costly with respect to time, money and
25 resources of the venues, promoters, filmmakers, and fans involved.
26
Plaintiffs application should be denied because an injunction would result in
27
serious damage to third parties, including venues where Filmchella will take
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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 place and those fans that want to see the independent movies selected to play
2 at Filmchella. On the other hand, the hardship, if any, that the denial of
3 injunctive relief would impose on Plaintiff is distant and speculative at best.
4
E. A substantial bond should be posted to compensate should Plaintiffs
5
Preliminary Injunction application be granted.
6

7
Plaintiff is seeking to seriously curtail Defendants ability to earn a livelihood
8
as a film exhibitor, asking this Court to enjoin a scheduled show and place
9
significant unwarranted restrictions on his ability to advertise future shows.
10
Should the Court award preliminary relief; a bond must be posted to
11
compensate him for the damages he will suffer if the restraining order is later
12
found to have been improperly granted.
13

14 When setting the amount of security, district courts should err on the high
15 side.... [A]n error in the other direction produces irreparable injury, because
16 the damages for an erroneous preliminary injunction cannot exceed the
17 amount of the bond. Mead Johnson & Co. v. Abbott Labs., 201 F3d 883, 888
18 (7th Cir. 2000), amended on denial of reh'g, 209 F3d 1032, cert denied, 531
19 U.S. 917 (2000).
20
Accordingly, should Plaintiff prevail on the instant application (and for the
21
reasons stated supra, it should not), a bond should issue in an amount not less
22
than $200,000.00, and more reasonably $400,000.00, for the imposition it
23
would put on Defendants ability to earn a living and exercise his rights
24
during the pendency of this case.
25

26 IV. CONCLUSION
27
Plaintiff has failed to establish that it will likely prevail on the merits of its
28

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OPPOSITION TO PLAINTIFFS REQUEST FOR A PRELIMINARY INJUNCTION

 1 trademark infringement claim and it has failed to show that it will suffer any
2 irreparable harm in the absence of a Preliminary Injunction against
3 Defendant. On the contrary, the Defendant will suffer much more harm
4 should the Injunction issue. As such, the motion for Preliminary Injunction
5 must be denied.
6
Respectfully Submitted,
7

8 Dated: September 2, 2017 By: /s/ Robert Trevor Simms

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