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Gene Palermo v. Underground Solutions

August 1, 2012


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


The matter before the Court is the Motion for Preliminary and Permanent Injunctive Relief (ECF No. 3) filed by Plaintiff Gene Palermo.

I. Background

On May 21, 2012, Plaintiff Gene Palermo initiated this case by filing the Complaint. Plaintiff alleges that he is an "internationally recognized expert" regarding "the plastic piping industry" who "has become a champion for certain types of piping, including high density polyethylene ('HDPE') piping and polyvinyl chloride ('PVC')." (ECF No. 1 at ¶¶ 1, 6-7). Plaintiff alleges that he has "published a number of papers and given dozens of presentations highlighting the risks associated with using fused PVC on account of its vulnerability to a phenomenon known as rapid crack propagation." Id. at ¶ 8. Plaintiff alleges that Defendant Underground Solutions, Inc. "specializes in the use of [fused PVC and] ... sells fused PVC throughout the United States." Id. at ¶ 2.

Plaintiff alleges that he became aware of a website with the domain name of www.gene which "associates [Plaintiff's] name with written content and photographs that purport to show the 'facts' about HDPE piping." Id. at ¶ 11. Plaintiff alleges that the "website asserts that HDPE piping is dangerous to use, highly fragile, and prohibitively expensive to fix." Id.

Plaintiff alleges that the "content of this website is completely inimical to the views that Dr. Palermo maintains and has publicly espoused throughout his career." Id. Plaintiff alleges that "[t]he website is calculated to confuse web visitors, who are looking for Dr. Palermo's work, and to capitalize off of his reputation and name in order to show the visitor web content that is contrary to Gene Palermo's own views." Id. at ¶ 12.

Plaintiff alleges that Defendant also "created and circulated a pamphlet [titled 'Palermo's Negative Sales, Scare Campaign Revealed'] ... in which Plaintiff is described as 'an unqualified shill' for the HDPE industry and as someone who has 'no independent credibility' and whose professional presentation is 'mere propaganda.'" Id.

Plaintiff asserts the following claims: (1) a federal claim for false designation of origin and false association under the Lanham Act, 15 U.S.C. § 1125(a); (2) state claims for false light, and misappropriation of likeness regarding the website; for defamation regarding the statements made in the pamphlet; and for unfair competition under California Business and Professions Code section 17200 regarding both the website and the statements made in the pamphlet.

On May 21, 2012, Plaintiff filed a Motion for Preliminary and Permanent Injunctive Relief. (ECF No. 3). Plaintiff seeks a preliminary and permanent injunction as follows:

(1) Grant preliminary and permanent injunctive relief against [Defendant] ... from:

(a) using Dr. Gene Palermo's name, or any similar terms, in a manner likely to cause confusion therewith, in connection with the advertising, marketing, distribution, sale or offer for sale of any goods or services;

(b) maintaining any website or domain name, including but not limited to, that misleadingly implies that Gene Palermo has any association with Defendant or with any of the opinions contained on; and

(c) disseminating and/or distributing the pamphlet entitled "Palermo's Negative Sales, Scare Campaign Revealed" to anyone or any entity.

(2) Include a provision in the injunction order directing [Defendant] to file with the Court and serve upon Dr. Palermo within thirty (30) days after this injunction is served upon [Defendant] a written report, certified under oath, setting forth the manner and form in which [Defendant] has complied with this injunction.

(3) Include a provision in the injunction ordering [Defendant] to deliver by mail or email a copy of the preliminary injunction order to its officers, agents, servants, employees, successors and assigns within five (5) business days from the date of the order. (ECF No. 3 at 2).

II. Applicable Law "[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original) (quotation omitted). The party seeking preliminary injunctive relief has the burden to show "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. NRDC, 555 U.S. 7, 20 (2008); see also Small v. Avanti Health Systems, LLC, 661 F.3d 1180, 1187 (9th Cir. 2011) ("Winter overturned ... precedents that allowed district courts to grant injunctions when a plaintiff demonstrated ... only a possibility of irreparable harm[]" finding that the "possibility" standard is "too lenient").

The Court of Appeals for the Ninth Circuit has articulated a standard "under which a preliminary injunction could issue where the likelihood of success is such that serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation omitted). The test applies a sliding scale approach to a preliminary injunction in which "the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Id.; see also Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) ...

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