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Bob Banner Associates, Inc. v. Whacko, Inc.

United States District Court, Ninth Circuit

August 26, 2013

BOB BANNER ASSOCIATES, INC., a California corporation, Plaintiff,
WHACKO, INC., a California corporation; CAROL BURNETT, an individual; and DOES 1 through 100, inclusive, Defendants. MABEL CAT, INC., a California corporation; WHACKO, INC., a California corporation; and CAROL BURNETT, an individual, Counterclaimants,
BOB BANNER ASSOCIATES, INC., a California corporation, LEGENDARY ENTERTAINMENT ALLIANCE, LLC, a California limited liability company, previously sued herein as ROE 1, and ROES 2-100, inclusive, Counterdefendants.

JOEL McCABE SMITH, (State Bar No. 50973), ELIZABETH L. SCHILKEN, (State Bar No. 241231), LEOPOLD, PETRICH & SMITH, P.C., Los Angeles, California, Attorneys for Defendants and Counterclaimants WHACKO, INC. and CAROL BURNETT, and Counterclaimant MABEL CAT, INC.


MANUEL REAL, District Judge.

The Court has GRANTED the Motion of Counterclaimants Mabel Cat, Inc., Whacko, Inc., and Carol Burnett ("Counterclaimants") for a Preliminary Injunction ("Motion") based on Counterclaimants' claims of false advertising and false designation of origin pursuant to 15 U.S.C. ยง1125(a), related to Counterdefendants Bob Banner Associates, Inc.'s and Legendary Entertainment Alliance, LLC's DVD and musical album entitled A Carol Burnett Christmas (the "DVD" and "Album"). The Court has determined that Counterclaimants have demonstrated a likelihood of prevailing on the merits of their claims; there is a likelihood of irreparable harm to Counterclaimants absent injunctive relief; the balance of the equities militates in favor of injunctive relief; the public interest favors a preliminary injunction; and that Counterclaimants are thus entitled to a Preliminary Injunction.


1. Counterdefendants Bob Banner Associates, Inc. and Legendary Entertainment Alliance, LLC ("Counterdefendants") and their subsidiaries, officers, agents, servants, directors, employees, partners, representatives, successors, assigns, related companies, attorneys, and all persons acting in concert or participation with them, are RESTRAINED and ENJOINED, during the pendency of Counterclaimants' claims in this action, from displaying for sale or rental, marketing, advertising, selling, renting, or commercially distributing the DVD or Album or any of the contents thereof, under the title A Carol Burnett Christmas, on or through the Internet or in any other manner or in any other medium or wholesale or retail outlet, whether in electronic or hard copy form, or in any other manner.

2. This injunction shall take effect upon Counterclaimants' posting a bond in the total sum of $10, 000 for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.


3. Within ten (10) days posting of the injunction bond relating to this Order of Preliminary Injunction, each Counterdefendant shall file with the Court and serve upon Counterclaimants' counsel a report setting forth the manner and form in which Counterdefendants have complied with this Preliminary Injunction, including the list of all wholesalers and retailers to whom they have given notice of this injunction.


A copy of this Order shall be served upon Counterdefendants via telecopier, e-mail, or Federal Express or similar delivery service by not later than the second business following the entry of this Order.


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