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Dancesport Videos, LLC v. Ediza Online

November 18, 2009

DANCESPORT VIDEOS, LLC, AN ARIZONA LIMITED LIABILITY COMPANY; AND DIGITAL VIDEO CREATIONS, INC., A CALIFORNIA CORPORATION, PLAINTIFFS,
v.
EDIZA ONLINE, INC., A CALIFORNIA CORPORATION; AS SEEN ON TV INFOMERCIALS, INC., A FLORIDA CORPORATION; FRANK BIANCO, AN INDIVIDUAL; FRANK BIANCO, INC., A FLORIDA CORPORATION; SHAREWELL GROUP, INC., A CALIFORNIA CORPORATION; MICHAEL SCHER, AN INDIVIDUAL; EUGENE SCHER, AN INDIVIDUAL; AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER AND PRELIMINARY INJUNCTION

On August 28, 2009, the Court issued an order granting Plaintiffs' ex parte application for seizure of goods and for a temporary restraining order. A hearing was held on September 4, 2009, the Court held a hearing as is required under Fed. R. Civ. P. 65(b)(2). The Defendants who were named in the original complaint (the "Original Defendants") were present and represented by counsel.

At the hearing, the Court entered an order as agreed to by Defendants and directed that Plaintiffs prepare a draft order embodying the substance of the rulings made from the bench and present it to Defendants' counsel for approval as to form and content. (Hearing Tr. At 22:3--6.) After the hearing, Plaintiffs amended their complaint to add two new Defendants who were not the subject of the TRO application or the motion for preliminary injunction, and who were not named in any of the Court's previous orders.

After some delay, Plaintiffs filed a notice that they were not able to agree on the form of the proposed order, and attached their proposed order as an exhibit. The Court then ordered Defendants to show cause why the proposed order should not be issued. Defendants filed responses (collectively, "Response") consenting to entry of much of the order, but objecting to certain aspects of it. Defendants are now represented by different counsel than at the hearing.

I. Preliminary Injunction as Issued

At the hearing, the Court issued an order from the bench. This order applies only to Plaintiffs and the Original Defendants, not the newly-added Defendants. The Response apparently assumes no injunction is in place, which is incorrect. The Court specifically entered an injunction as contemplated at the hearing:

The Court: As of today I order -as of this moment, I order the injunction in effect along the lines that have been agreed to by the parties.

The Defendants understand the effect of the Court's order today?

Mr. Pfingst [Defendants' counsel]: Yes.

The Court: The TRO is continued in all respects with the exception of the duty of production of that computer, and I made a special order with respect to that.

Mr. Pfingst: For the record, my clients are in court at this time, have been in court and are aware of the Court's ruling having been present at the time it was made.

(Hearing Tr. 22:7--19.)

The Court made additional rulings with regard to preservation of the computer, which is Defendant Frank Bianco's laptop (Hearing Tr. 22:21--23:2), as well as the return of certain income tax returns (id., 23:13--24:20.)

In other words, this order merely memorializes the orders the Court has already made, which continue in force against Plaintiffs and the Original Defendants. Defendants request that the injunction not be entered until Plaintiffs' have conducted an inventory and return tax forms. The injunction, however, is already in place. If Defendants believe they are being injured by Plaintiffs' disobedience to the Court's order they can seek an order holding Plaintiffs in contempt.

At the hearing, the Original Defendants consented through counsel they would preserve the contents of Frank Bianco's laptop and it would be kept in Defendants' counsel's custody. They also conceded the seized materials the Court ordered seized were pirated, but argued they had no reason to suspect they had bought pirated materials. Although they now seek to challenge the portion of the order directing seizure of pirated materials and documents relating to those materials, and preservation of the laptop, they have presented the Court with no appropriate basis for reconsideration. If Defendants believe other materials were wrongly seized, they can seek return of this, but in the meantime they should obey the Court's order.

II. Injunction

Neither version of the injunction proposed by the parties is in complete harmony with that original order. The Court has reviewed the proposed order and objections, and has adopted the proposed language it believes most closely reflect its original order.

The Court finds Plaintiffs have shown that they are likely to succeed on the merits of their infringement and counterfeiting claims based on claims of Defendants' wrongful use of DanceSport's federally registered "CORE RHYTHMS" marks and federally registered ...


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