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Liberty Media Holdings, LLC, A California v. Ryoichi Watanabe

May 3, 2012

LIBERTY MEDIA HOLDINGS, LLC, A CALIFORNIA CORPORATION, C PLAINTIFF,
v.
RYOICHI WATANABE, AN INDIVIDUAL; JASON PHILLIPS, AN INDIVIDUAL; DAVID SMITH, AN INDIVIDUAL; ADRUSH MEDIA, A FOREIGN CORPORATION; AND DOES 1-500, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the Application for a Limited Temporary Restraining Order Freezing Domain Name Portfolios and the Motion for Order Temporarily Sealing Portions of the File submitted by Plaintiff Liberty Media Holdings, LLC.

I. Background

On August 31, 2010, Plaintiff Liberty Media Holdings, LLC, filed the Complaint (ECF No. 1) and on October 18, 2010, Plaintiff filed a First Amended Complaint (ECF No. 6) alleging claims of cyberpiracy, cybersquatting, and trademark infringement against Defendants Watanabe, Phillips, Smith, and Adrush Media for their use of website domain names which target Plaintiff's trademark CORBIN FISHER. Plaintiff contends that Defendant Watanabe is "believed to be" a resident of Tokyo who registered an infringing domain name through Godaddy.com; Defendant Phillips is "believed to be" a resident of the UK who registered an infringing domain name through Publicdomainregistry.com; Defendant Smith is a foreign individual who registered infringing domain names through Above.com; and Defendant Adrush Media is a name holder for an infringing domain name registered through Directnic, Ltd. Id. at 4-8.

On January 20, 2011, the Court granted Plaintiff permission to serve Defendants Watanabe, Phillips, Smith, and Adrush Media via their last known email addresses. (ECF No. 22). On January 26, 2011, Plaintiff returned executed summons of service for Defendants Watanabe, Phillips, Smith, and Adrush Media. (ECF Nos. 25-28).

On March 28, 2011, the Clerk of the Court entered default against Defendants Watanabe, Phillips, Smith, and Adrush Media. (ECF No. 41). On August 5, 2011, Plaintiff filed a Motion for Entry of Default Judgment Against Defendants Watanabe, Phillips, Smith, and Adrush Media. (ECF No. 45).

On November 18, 2011, the Court granted Plaintiff's Motion for Entry of Default Judgment finding that Plaintiff is entitled to an award of: (1) $100,000 against Defendant Watanabe for the domain name www.corbin-fisher.info; (2) $100,000 against Defendant Phillips for the domain name www.ilovecorbinfisher.com; (3) $400,000 against Defendant Smith for the domain names www.cornbinfisher.com; www.corbimfisher.com; www.corbinfisheer.com; and www.corbinfissher.com; and (4) $100,000 against Defendant Adrush Media for domain name www.corbin-fisher.com. In the Motion for Entry of Default Judgment, Plaintiff also sought an injunction which included a request for an order: "Directing Verisign, and all other domain name registrars to additionally freeze the entire domain name portfolio held by the Defendants, as such portfolios likely are the only recoverable asset that Defendants have." (ECF No. 45 at 12). The Court did not grant the injunction freezing the entire domain name portfolio held by the Defendants on the grounds that Plaintiff sought relief in excess of the injunctive relief requested in the Complaint. The Court stated: "Plaintiff may file a supplemental motion for injunctive relief no later than fourteen days from the date of this order. (ECF No. 53 at 8). Plaintiff failed to file a supplemental motion for injunctive relief.

The Court concluded: "The Court finds that entry of a default judgment is not appropriate at this stage of the proceedings on the grounds that there are claims proceeding against Defendant James March." Id. (citing Fed. R. Civ. P. 54(b)).

On March 22, 2012, Defendant March was dismissed with prejudice. (ECF No. 59). Plaintiff has not moved for entry of default judgment against Defendants Watanabe, Phillips, Smith, and Adrush Media.

On April 30, 2012, Plaintiff submitted an Application for a Limited Temporary Restraining Order Freezing Domain Name Portfolios and a Motion for Order Temporarily Sealing Portions of the File. Plaintiff seeks an Order as follows: "any domain name registrars or registries (including Verisign, Inc.) utilized by the Defendants [Watanabe, Phillips, Smith, and Adrush Media] shall immediately freeze any and all domain names held by or registered by the Defendants so that they may not be transferred to any other parties." (Proposed Order at 1).

II. Application for Limited Temporary Restraining Order Freezing Domain Name Portfolios Plaintiff requests that the Court issue a order without notice restraining Ryoichi Watanabe, registrant of corbin-fisher.info at getbigfast2010@gmail.com; Jason Phillips, registrant of ilovecorbinfisher.com at info@jasonphillips.co.uk; David Smith, registrant of cornbinfisher.com, corbimfisher.com, corbinfisheer.com, and corbinfissher.com at parkdns@gmail.com; and Adrush Media, registrant of corbin-fisher.com at adrushmedia@gmail.com and any domain name registrars utilized by the Defendants from transferring any and all domain names held by or registered by Defendants until Defendants satisfy any judgment entered in this case or until Defendants appear and show cause as to why the order should be lifted.

Plaintiff asserts that it has information regarding the Defendants in the form of WHOIS reports which include Defendants' names and email addresses. Plaintiff contends that the WHOIS information can be used to "freeze" Defendants' domain name portfolios. In other words, the WHOIS information can be used to identify Defendants Ryoichi Watanabe, Jason Phillips, David Smith, and Adrush Media to domain name registrars and the domain name registrars can prevent Defendants from transferring any domain name registered to them.

Plaintiff contends that it is likely to succeed on the merits because Defendants have defaulted in this case. Plaintiff contends that it will suffer irreparable injury without the requested injunction on the grounds that there is a "strong possibility that the Defendant[s] will take actions to frustrate judgment in this case." (App. for TRO at 6). Plaintiff asserts that "none of the remaining Defendants have communicated with the Plaintiff not made any attempt to resolve the judgments against them." Id. at 9. Plaintiff contends that Defendants will able to continue to use all of their domain names and will only be prohibited from disposing of the domain names; therefore, Defendants will not suffer prejudice and the balance of hardship tips in Plaintiff's favor. Plaintiff contends that the injunction serves the public interest of upholding intellectual property protections.

The underlying purpose of a temporary restraining order is to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing may be held. Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974); see also Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 2006). The standard for issuing a temporary restraining order is similar to the standard for issuing a preliminary injunction, and requires that the party seeking relief show either "(1) a combination of likelihood of success on the merits and the possibility of irreparable harm, or (2) that serious questions going to the merits are raised and the balance of hardships tips sharply in favor of the moving party." Immigrant Assistance Project of the L.A. County of Fed'n of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002). "[T]hese two formulations represent two points on ...


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