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Brothers Entertainment Merchandising, Inc. v. Does

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 7, 2009

BROTHERS ENTERTAINMENT MERCHANDISING, INC., PLAINTIFF,
v.
VARIOUS JOHN DOES, JANE DOES, AND ABC COMPANIES, DEFENDANTS.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

TEMPORARY RESTRAINING ORDER; ORDER OF SEIZURE; AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE

Based upon the complaint, memorandum of points and authorities, and declarations submitted herewith:

IT IS HEREBY ORDERED THAT defendants, Various John Does, Jane Does and ABC Companies, their true identity being unknown, show cause on the 17 day of April, 2009 at 10:00 am in Courtroom 1 at the United States District Court for the Eastern District of California, 501 I Street, Sacramento, CA 95814, why an order pursuant to Rule 65 FRCP should not be entered granting to plaintiff a preliminary injunction enjoining defendants from manufacturing, distributing, selling or holding for sale and authorizing seizure of all clothing, jewelry, photographs, posters and other merchandise bearing the Britney Spears trademark, logos and/or likeness and/or replicas of artwork embodied on jackets containing the recordings of the Britney Spears;

AND it appearing to the Court that defendants are distributing and/or are about to distribute in interstate commerce and sell at or near the sites of the current Britney Spears United States concert tour, clothing, jewelry, photographs, posters and other merchandise bearing the Britney Spears trademark, logos and/or likeness and/or replicas of artwork embodied on the jackets of recordings of the Britney Spears and will continue to carry out such acts unless restrained by Order of the Court;

AND it appearing to the Court that immediate and irreparable injury, loss and damage will result to plaintiff before defendants can be identified and given notice and their attorneys can be heard in opposition to the granting of the Temporary Restraining Order, in that defendants are preparing to be manufacturing, distributing, and selling throughout the current Britney Spears concert tour infringing Britney Spears merchandise and that unless said defendants are enjoined from said manufacture, distribution and sale, plaintiff will suffer immediate and irreparable injury and harm in the form of loss of income, the dilution of the Britney Spears mark, interference with plaintiff's ability to exploit its own merchandising rights, confusion in the marketplace as to the duly authorized source of Britney Spears merchandise and the impairment of the goodwill that plaintiff has in the Britney Spears trademark, it is hereby

ORDERED, that pending the hearing and determination of this motion, defendants Various John Does, Jane Does and ABC Companies, their agents, servants, employees, attorneys, successors and assigns and all persons, firms and corporations acting in concert with said defendants be and they hereby are temporarily restrained from manufacturing, distributing and selling infringing merchandise bearing the Britney Spears trademark, logos and/or likeness and/or artwork embodied on jackets containing recordings of the Britney Spears and it is further

ORDERED, that the U.S. Marshal for this District, the U.S. Marshal(s) and/or state, county or local law enforcement authorities for any such district in which plaintiff enforces this order and persons acting under their supervision are hereby authorized and directed to seize, impound any and all infringing imitation and unauthorized merchandise bearing the Britney Spears trademark, logos and/or likeness and/or artwork embodied on jackets containing recordings of Britney Spears including the containers or vehicles in which same is held or transported, which defendants sell, attempt to sell or hold for sale from six (6) hours before to six (6) hours after any performance within five (5) miles of the exterior border of the concerts on the Britney Spears tour including, but not limited to, the Britney Spears concert at ARCO Arena, Sacramento, CA on April 11, 2009; and it is further

ORDERED, that this Order be and is hereby conditioned upon plaintiff filing with the Clerk of this Court, an undertaking, a bond or a certified, cashiers or attorneys check or cash in the amount of $20,000.00 to secure payment of such costs and damages not to exceed such sum as may be suffered or sustained by any party who is found to be wrongfully restrained hereby; and it is further

ORDERED, that this Temporary Restraining Order if served by a U.S. Marshal is conditioned upon plaintiffs advancing to the U.S. Marshal(s) such sum as is required by the U.S. Marshal(s) to cover the fees for their services above described, if any; and it is further

ORDERED, that the process server shall offer a receipt to each person from whom merchandise is seized and that plaintiff shall be deemed substitute custodian for all merchandise seized; and it is further

ORDERED, that each and every defendant served with a copy of this Order shall promptly, courteously and peaceably identify himself or herself to the aforementioned process server by presenting written proof of identification to said process server and said process server or agents for plaintiff shall be allowed to photograph, video tape or otherwise identify the defendant; and it is further

ORDERED, that defendants' responsive papers, if any, shall be filed with the Clerk of this Court and served upon the attorney for plaintiff by delivering a copy to its counsel on or before April 14, 2009; and it is further

ORDERED, that because of the numerous defendants, service of a copy of only this Order to Show Cause be made upon the defendants along with the Summons and Complaint at the time that the seizure provided herein, if any, is effected. If any defendant requests all other pleadings, plaintiff shall provide copies of said pleadings to any identified defendant; and it is further

ORDERED, that any defendant who is hereafter served with a copy of this Order who objects to the provisions hereof may submit his or her objections to this Court or otherwise move for relief from this Court according to the Federal Rules of Civil Procedure, but no such objection shall serve to suspend this Order or stay the terms hereof unless otherwise ordered by this Court.

IT IS SO ORDERED

20090407

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