United States District Court, C.D. California
March 3, 2014
F.E.A., INC., Plaintiff,
JOHN DOES 1-5, JANE DOES 1-4 AND XYZ COMPANY, Defendants.
PRELIMINARY INJUNCTION AND SEIZURE ORDER
PERCY ANDERSON, District Judge.
On February 19, 2014, the Court granted an Ex Parte Application for Temporary Restraining Order, Seizure Order, and Order to Show Cause why a Preliminary Injunction and Seizure Order should not issue ("TRO and Seizure Order") filed by Plaintiff F.E.A., Inc. ("Plaintiff"). The TRO and Seizure Order enjoined defendants from manufacturing, distributing, and selling clothing, jewelry, photographs, posters and other merchandise (the "Infringing Merchandise") bearing the federally registered trademarks and likenesses of the artist known as "Miley Cyrus" (the "Artist") and authorizing the seizure of all Infringing Merchandise at the artist's concerts that have occurred during her current concert tour.
Defendants who were served with the TRO and Seizure Order did not file any Opposition to the Order to Show Cause why a Preliminary Injunction and Seizure Order should not issue and did not appear at the hearing on March 3, 2014. Plaintiff appeared at the hearing and filed a supplemental memorandum in support of the issuance of a Preliminary Injunction and Seizure Order. The Court has considered the evidence filed in support of the TRO and Seizure Order and the additional evidence filed in support of the issuance of a Preliminary Injunction and Seizure Order, and hereby makes the following findings:
1. By reason of the substantial and continuous use of the Artist's federally registered trademark to "Miley Cyrus" and her likeness (the "Artist's Marks") in connection with the Artist's work, the marks have acquired meaning identified with the Artist and with products and services associated with the Artist;
2. The served defendants, and those in active concert or participation with such defendants, have infringed upon Plaintiff's rights in the Artist's Marks by manufacturing, distributing, offering for sale and selling merchandise bearing any or all of the Artist's Marks at or near the sites of the Artist's concerts, without having obtained a license or any other authorization to do so, as alleged in the complaint;
3. The acts of the defendants, and those in active concert or participation with them, constitute a violation of the United States Trademark Act in that they: a) involve goods or services, b) are activities which affect interstate commerce, and c) infringe the trademark and/or bear a false designation of the source or origin of such goods or are likely to cause confusion, mistake or deception as to the affiliation, connection, association, sponsorship or approval of Plaintiff or the Artist with respect to such goods;
4. Defendants, and those in active concert or participation with them, will continue to sell such unauthorized merchandise unless enjoined; and
5. Copies of this Court's Temporary Restraining Order; Seizure Order; and an Order to Show Cause Why a Preliminary Injunction and Seizure Order Should Not Issue and the Complaint filed in support of Plaintiff's application in this case have been served upon the defendants and the unauthorized, "bootleg" merchandise has been seized from the defendants.
IT IS THEREFORE ORDERED, defendants, their agents, servants, employees, attorneys, successors and assigns and all persons, firms and corporations acting in concert with them, and each of them, be and hereby are enjoined from:
(A) Using any or all of the Artist's Marks in connection with the sale, offering for sale, distribution, and/or advertising of any clothing or other merchandise;
(B) Manufacturing, distributing, selling, and/or holding for sale any clothing or other merchandise which carries or otherwise uses any or all of the Artist's Marks; or
(C) Aiding, abetting, inducing, or encouraging another to perform any of the acts enjoined herein.
IT IS FURTHER ORDERED that the U.S. Marshal for this district or for any district in which Plaintiff seeks to enforce this Order in the United States, the state police, local police, local deputy sheriffs, off-duty officers of the same, and any person acting under their supervision (collectively "Process Servers"), are hereby similarly authorized to seize and impound any and all clothing, jewelry, photographs, posters and other merchandise bearing any or all of the Artist's Marks (specifically, the mark "Miley Cyrus" or her likeness") or any colorable imitations or variations thereof which defendants or their agents, employees or representatives attempt to sell or are holding for sale in the vicinity of any of the Artist's concerts from six (6) hours before to six (6) hours after any performance of the Artist within a ten (10) mile vicinity of the venues at which the Artist shall be performing as set forth in Exhibit A, including in any carton, bag, vehicle, or container in which the merchandise is transported or stored.
IT IS FURTHER ORDERED that service of a copy of this Order, together with the Summons and Complaint, and all other documents Plaintiff has filed in support of the issuance of the TRO and Seizure Order and this Preliminary Injunction and Seizure Order be made upon defendants by the Process Servers at the time the seizure provided herein is effected. Plaintiff is only required to attempt to serve these documents on defendants by offering them to the defendant at the time of seizure.
IT IS FURTHER ORDERED that the Process Server or agents for Plaintiff be allowed to photograph, videotape or otherwise identify the defendant.
IT IS FURTHER ORDERED that the Process Server shall offer a receipt to each person from whom goods are seized.
IT IS FURTHER ORDERED that any defendant who is hereafter served with a copy of this Order who objects to the provisions herein may submit his or her objections to this Court or otherwise move for relief from this Court within ten (10) days of the date of seizure according to the Federal Rules of Civil Procedure, but no such objection shall serve to suspend this Order or stay the terms hereof unless otherwise ordered by this Court.
IT IS FURTHER ORDERED that all unauthorized items heretofore or hereafter seized in this action be delivered up to the Plaintiff or the persons designated above, pending final disposition of this matter.
IT IS FURTHER ORDERED that the bond deposited with the Clerk of this Court to secure payment of costs incurred in enforcing the provisions of the temporary restraining order and any damages sustained by any party who is found to have been wrongfully enjoined thereby is continued until final disposition of this matter.
IT IS SO ORDERED.