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Southern Division Group Independent Sales Organization, Inc. v. Global ISO

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 11, 2009

SOUTHERN DIVISION GROUP INDEPENDENT SALES ORGANIZATION, INC., PLAINTIFF,
v.
GLOBAL ISO, LLC, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: DENIAL OF MOTION FOR PRELIMINARY INJUNCTION AGAINST DEFENDANTS GLOBAL ISO, LLC, DANIEL BRASOV, IRASEMA BRASOV, AND WENDY CARRILLO FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: DENIAL OF MOTION FOR PRELIMINARY INJUNCTION

I. FINDINGS OF FACT

1. On December 3, 2008, Plaintiff Group Independent Sales Organization, Inc. ("Plaintiff") filed a Notice of Motion and Motion for Preliminary Injunction and supporting Declaration of Michael Segura.

2. On December 15, 2008, Defendants Global ISO, LLC, Daniel Brasov, Irasema Brasov, and Wendy Carrillo ("Defendants") filed their Opposition to the Motion for Preliminary Injunction, Request for Judicial Notice, Objections to Declaration of Michael Segura, Declaration of Caroline Ann Molloy, Declaration of Wendy Carrillo and Declaration of Daniel Brasov.

3. On January 2, 2009, Plaintiff filed its Reply to Defendants' Opposition to Motion for Preliminary Injunction, Declarations of Joseph R. Manning, Jr. and Michael Segura in Support of Plaintiff Group Independent Sales Organization, Inc.'s Reply and Plaintiff Group Independent Sales Organization, Inc.'s Objections to Declarations of Daniel Brasov and Wendy Carrillo.

4. On January 7, 2009, Plaintiff filed [Proposed] Findings of Fact and Conclusions of Law re: Motion for Preliminary Injunction against Defendants Global ISO, LLC, Daniel Brasov, and Wendy Carrillo and a [Proposed] Order re: Preliminary Injunction against Defendants Global ISO, LLC, Daniel Brasov, and Wendy Carrillo. In its [Proposed] Order, Plaintiff requested the following injunctive relief:

Global ISO, LLC, Daniel Brasov, Irasema Brasov, and Wendy Carillo shall not use the "GLOBAL ISO" name in merchant credit card processing industry trade publications, and in association with advertisements for the related company American Bankcard Alliance, LLC, on, but not limited to, the GLOBAL ISO website and its associated network of websites during the pendency of this action.

5. On January 9, 2009, at 3:00 p.m., counsel for the parties appeared before this Court for the hearing on Plaintiff's Motion for Preliminary Injunction and Defendants' Request for Judicial Notice. Joseph R. Manning, Jr., Esq. of the LAW OFFICES OF JOSEPH R. MANNING, JR. appeared on behalf of Plaintiff. Caroline Ann Molloy, Esq. of CALLAHAN & BLAINE, APLC appeared on behalf of Defendants.

6. After reviewing the submitted papers and hearing argument of counsel, the Court ruled that Plaintiff failed to show its entitlement to a preliminary injunction based on the following findings:

A. Plaintiff's claims for infringement, unfair competition, and unfair trade practices are all based on the threshold question: "Whether there is confusion between Group and Global?"

B. The evidence proffered to the Court does not show there is confusion between Group and Global.

C. The evidence proffered to the Court does not show irreparable injury to Plaintiff.

D. The harm Plaintiff claims to be concerned with is speculative. In the papers and argument, Plaintiff only represented, "if these associations" or "once these associations are made" or "if these things happen," then Plaintiff would not want to suffer harm.

E. Plaintiff delayed in filing the Motion for Preliminary Injunction from the alleged October 3, 2008 telephone call by Eric Nicholson of First Data until the filing of the Motion on December 3, 2008.

F. Neither of the parties were overly concerned about the potentially offensive websites. Only when Mr. Segura received a telephone call from Eric Nicholson about whether Group has something to do with the websites, did Mr. Segura then decide to pay more attention to it. From the evidence presented, there is no confusion demonstrated by Mr. Nicholson.

II. CONCLUSIONS OF LAW

1. A plaintiff seeking a preliminary injunction must establish:

(a) it is likely to succeed on the merits;

(b) it is likely to suffer irreparable harm in the absence of preliminary relief:,

(c) the balance of equities tips its favor; and

(d) an injunction is in the public interest.

Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed. 2d 542 (1987); see also Winter v. Natural Res. Def. Council, Inc., --- U.S. ---, 129 S.Ct. 365, 374 (2008).

2. The burden rests with Plaintiff to meet these standards. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 1867, 138 L.Ed. 2d 162 (1997); see City of Angoon v. Marsh, 749 F.2d 1413, 1415 (9th Cir. 1984).

3. Plaintiff has not demonstrated a likelihood of success on the merits on its claims.

4. Plaintiff has not demonstrated it has suffered irreparable injury.

5. To prevail on a trademark infringement claim under the Lanham Act, Plaintiff must show that: (1) it has a valid and protectable trademark; and (2) a likelihood of confusion. Applied Info. Scis. Corp. v. eBay, Inc., 511 F.3d 966, 969 (9th Cir. 2007).

6. Plaintiff has not demonstrated a likelihood of confusion between Group and Global.

7. Plaintiff has not made a sufficient showing to justify the Court issuing an injunction.

20090311

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