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Marble Slab Franchising, LLC v. Yuji Restaurants

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


April 21, 2010

MARBLE SLAB FRANCHISING, LLC, PLAINTIFF,
v.
YUJI RESTAURANTS, INC., DEFENDANTS.

The opinion of the court was delivered by: George H. WU United States District Judge

PRELIMINARY INJUNCTION

Plaintiff Marble Slab Franchising, LLC ("Plaintiff" or "Marble Slab"), having filed its "Complaint for Service Mark Infringement, Unfair Competition, Declaratory Judgment, and Breach of Contract" against Yuji Restaurants, Inc. ("Yuji"), Gee Pong Yang, and Keum Nae Bang (together, "Defendants"), has moved for an Order to Show Cause ("OSC") why a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure should not issue. The Court did not receive any opposition to Plaintiff's request for the issuance of a preliminary injunction from the Defendants, and no appearance was made on their behalf at the hearing on the OSC which was held on April 1 and 8, 2010. Having considered the Complaint, Plaintiff's declarations, exhibits and memorandum of points and authorities, and Defendant Keum Nae Bang's Answer, the Court made factual findings as reflected in its tentative (then final) Ruling issued on April 1, 2010. In addition to and in accordance with those factual findings, the Court also finds:

1. This Court has jurisdiction of the subject matter of this case.

2. There is good cause to believe that venue properly lies with this Court.

3. There is good cause to believe that Plaintiff is likely to prevail on the merits of its claims for unfair competition, breach of contract, and trademark and service mark infringement, with respect to the following service marks registered with the United States Patent and Trademark Office (collectively referred to herein as the "MARBLE SLAB Marks"):

Trademark U.S. Reg. No.

Registration Date Goods and Services

MARBLE SLAB CREAMERY 1,351,081 July 23, 1985 Restaurant services, namely ice cream parlors in Int'l Class 42.

MARBLE SLAB CREAMERY and Design 2,230,020 March 9, 1999 Restaurant services, namely, ice cream parlors Int'l Class 42.

ICE CREAM JUST THE WAY YOU LIKE IT 2,464,391 June 26, 2001 Retail ice cream shop services in Int'l Class 35.

THE SLAB CLUB 2,489,736 September 18, 2001 Retail ice cream store featuring frequent purchase bonus program in Int'l Class 35.

Trademark U.S. Reg.

No. Registration

Date Goods and Services

Ice Cream Cone Man Design

2,609,653 August 20, 2002 Entertainment services in the form of personal appearances by a mascot in Int'l Class 41.

SLABBY 2,900,188 November 2, 2004 Entertainment services in the form of personal appearances by a mascot to promote the restaurant services of others in Int'l Class 41.

MARBLE SLAB CREAMERY 2,903,406 November 16, 2004 Franchising services, namely, offering technical assistance in the establishment and operation of ice cream parlors in Int'l Class 35.

MARBLE SLAB CREAMERY and Design 2,925,107 February 8, 2005 Franchising services, namely, offering technical assistance in the establishment and operation of ice cream parlors in Int'l Class 35.

ICE CREAM SO FRESH, IT MOOS 2,951,726 May 17, 2005 Restaurants featuring ice cream and yogurt in Int'l Class 43.

CREATE YOUR OWN ICE CREAM FANTASY 2,965,318 July 5, 2005 Restaurant services, namely ice cream parlors; catering services in Int'l Class 43.

THE MARBLE SLAB CREAMERY EXPERIENCE 2,965,319 July 5, 2005 Restaurant services, namely ice cream parlors; catering services in Int'l Class 43.

SLABWICH 3,111,858 July 4, 2006 Frozen confections; ice cream sandwiches in Int'l Class 30.

MARBLE SLAB CREAMERY 3,217,441 March 13, 2007 Frozen confections; cakes; cookies; pies; ice cream products, namely ice cream, ice cream drinks, and ice cream sandwiches; frozen yogurt in Int'l Class 30.

MARBLE SLAB CREAMERY and Design 3,217,442 March 13, 2007 Frozen confections; cakes; cookies; pies; ice cream products, namely ice cream, ice cream drinks, and ice cream sandwiches; frozen yogurt in Int'l Class 30.

Trademark U.S. Reg.

No. Registration

Date Goods and Services

THE FRESHEST ICE CREAM ON EARTH

3,525,939 October 28, 2008 Frozen confections; cakes; cookies; pies; ice cream products, namely, ice cream, ice cream drinks, ice cream cones, and ice cream sandwiches; frozen yogurt in Int'l Class 30.

Restaurant services, namely ice cream parlors in Int'l Class 43.

4. If injunctive relief is not granted, Plaintiff will suffer irreparable harm.

5. The balance of hardships tips substantially in favor of Plaintiff.

6. Public Interest favors the issuance of a preliminary injunction herein.

Accordingly, the Court now makes the following order:

1. That the Defendants, and all those acting in concert or privity with any or all of them, including any of their agents, servants, employees, and attorneys, are hereby enjoined from:

(a) using the MARBLE SLAB Marks or the MARBLE SLAB System, in any manner whatsoever, including, without limitation, in connection with the advertising, promotion or sale of any product or service, and including, without limitation, on all signs, furniture, fixtures, equipment, décor, advertising materials, stationary, forms, and any other articles that display the MARBLE SLAB Marks or utilize Marble Slab's trade dress;

(b) operating any business under the name MARBLE SLAB or MARBLE SLAB CREAMERY or operating or doing business under any name or mark, or in any manner that is likely to give the public the impression that any business in which the Defendants have any interest or connection is licensed by Marble Slab or otherwise associated with the MARBLE SLAB CREAMERY franchise system;

(c) failing to make any changes and alterations to their formerly-licensed premises required to de-identify the shop;

(d) failing to turn over to Marble Slab the Manual and all other confidential and proprietary materials relating to the MARBLE SLAB System; and

(e) committing any other act that infringes the MARBLE SLAB Marks or otherwise unfairly competes with Marble Slab or the MARBLE SLAB CREAMERY franchise system.

2. That the Defendants file with the Court and serve on counsel for Marble Slab, within ten (10) days after entry of this Order, a written report setting forth in detail, under oath, the manner and form in which they have complied with this injunction;

3. That, if Defendants fail to file a written report as specified in (2), they will permit an inspection of their premises to determine compliance with this Order; and

4. That this Order take effect immediately upon its being served on the Defendants and upon Plaintiff's posting of a bond in the amount of $1,000.

20100421

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