United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY
INJUNCTION [DOC. NO. 7]
Michael M. Anello United States District Judge
March 7, 2017, Plaintiff Andrew Bennett filed this action
against Defendants Daron Forbes and We Are Volleyball Elite,
alleging causes of action for intentional interference with
contractual relations, intentional interference with
prospective economic advantage, negligent interference with
prospective economic advantage, defamation, trademark
infringement, unfair competition and false designation under
federal law, violation of the California Business and
Professions Code, intentional infliction of emotional
distress, negligent infliction of emotional distress, and
copyright infringement. See Doc. No. 4. Plaintiff
now moves for a preliminary injunction. See Doc. No.
7. The Court found the matter suitable for determination on
the papers and without oral argument pursuant to Civil Local
Rule 7.1(d)(1). For the following reasons, the Court DENIES
Plaintiff's motion for a preliminary injunction.
Parties highly dispute the facts pertinent to Plaintiff's
motion for a preliminary injunction, which is based solely on
Plaintiff's trademark infringement claim.According to
Plaintiff, he founded certain “organizations for the
purpose of connecting intercollegiate beach volleyball
programs with high school athletes.” See Doc.
No. 7. Specifically, Plaintiff states he “is the
founder of the brands and events” called: Get Noticed
Beach Volleyball (“GNBV”), Endless Summer Beach
Volleyball Tour (“Endless Summer” or
“ESVT”), and Juniors Beach Volleyball League
(“JBVL”). See Doc. No. 7. Plaintiff
alleges he then “[brought] in Defendant Daron Forbes
(‘Forbes') and her organization, Defendant We Are
Volleyball Elite (‘WAVE') to help grow the brands
for over two and a half years.” See Doc. No.
7. Plaintiff alleges he met Defendant Forbes in 2013 and at
some point thereafter,  they entered into a verbal agreement
for a “joint venture to put on certain events.”
See Doc. No. 7. Plaintiff contends the Parties
agreed that Plaintiff's organization, the Tamarack Beach
Volleyball Club, and Defendant Forbes's organization,
WAVE (or “Team WAVE”), would put on these events
jointly, and would share “revenues, costs, and
profits” equally. See Doc. No. 7.
GNBV, Plaintiff alleges he “came up with the name
‘Get Noticed Beach Volleyball'” in April
2014, and “personally purchased a logo for the GNBV
brand” in May 2014. He states that the “first
joint GNBV event took place in October,
2014.”See Doc. No. 7. Plaintiff states
that he paid for the permits for that event as well.
See Doc. No. 9. “Since 2014 up until February
2017 all GNBV events were jointly managed and run.”
See Doc. No. 7.
Endless Summer, Plaintiff claims he started a business in
2012 called “Carlsbad Open Amateur & Junior Events,
” but changed the name of the business to
“Endless Summer Volleyball Tour” in “late
2014.” See Doc. No. 7. He claims he came up
with the name and in October 2014, “personally
purchased a logo for the Endless Summer brand.”
See Doc. No. 7. Around November of 2014, Plaintiff
states the first Endless Summer event took place. Plaintiff
states that the Parties' agreement regarding Endless
Summer “was that all Endless Summer events that took
place in Orange and Los Angeles County would be jointly
managed and coordinated, but that any Endless Summer event in
San Diego County could be put on by Plaintiff.”
See Doc. No. 7. Plaintiff asserts that he ran
nineteen Endless Summer events without Defendants.
JBVL, Plaintiff states that “[i]n late 2016 and early
2017, Plaintiff began the process of forming a business
called” JBVL, and purchased a logo for the business on
October 22, 2016. See Doc. No. 7. Plaintiff states
that he and Defendants jointly held the first JBVL event in
to Plaintiff, he recently decided it would be best for the
Parties to cease working together, but alleges Defendants
have attempted to assert control over and claim ownership of
GNBV, Endless Summer, and JBVL. Specifically, the Parties
began to feud regarding the management of events and on
February 20, 2017, “discussions ensued between the
parties about a separation and potentially having one party
purchase and own certain brands outright, ” but the
Parties never came to an agreement. See Doc. No. 7.
Plaintiff asserts that Defendants have represented to members
of the public that Plaintiff has no right to use the
contested brands, and told the Association of Volleyball
Professionals that WAVE “owns and operates JBVL,
Endless Summer, and GNBV brands.” See Doc. No.
7 (internal quotations omitted). Plaintiff states that
Defendant Forbes “has continued to market and attempt
to run events” under the disputed brand names, causing
confusion to consumers. See Doc. No. 7.
other hand, according to Defendants, “Plaintiff was
simply an independent contractor hired to assist
Defendants' operations” in running “beach
volleyball tournaments and showcases . . . to provide a
platform for  youth athletes to get recruited by colleges
and universities.” See Doc. No. 8. Defendants
contend that Defendant Forbes first met Plaintiff in 2013,
and in 2014 Defendant Forbes asked Plaintiff if he would like
to work “as an independent contractor to assist with
Team WAVE's beach volleyball events” despite having
“been warned by others who had worked with Mr. Bennett
that he was not to be trusted.” See Doc. No.
8. Because of Defendant Forbes's wariness about
Plaintiff's trustworthiness, Defendant Forbes claims she
never allowed Plaintiff to hold “a position of title
within Team WAVE's organization” and Defendants
“maintained all ownership of all aspects of the GNBV,
ESVT, and JBVL brands and events.” See Doc.
No. 8. Defendants contend Defendant WAVE “agreed to be
financially responsible for all the events, including the
permits, insurance coverage, costs, and any losses incurred
with the beach volleyball events.” See Doc.
No. 8. Defendants state that Defendant WAVE paid Plaintiff
half of the net proceeds from each event, but asserts that
this does not constitute sharing of profits because many
expenses did not factor into his payments. Defendants assert
that Plaintiff requested an ownership interest in, or control
over, the brands, but Defendant WAVE denied his requests.
GNBV, Defendants contend Defendant Forbes came up with the
name in March 2014, and Defendant WAVE then purchased the
domain name gnbv.net on March 27, 2014, and “arranged
for, paid for, and received the logo for GNBV.”
See Doc. No. 8. Defendants state that Defendant WAVE
started advertising the GNBV event first and did so “as
early as April 17, 2014 through its own website . . . and
social media accounts.” See Doc. No. 8.
According to Defendants, WAVE “made all plans,
preparations, permitting, and all sales to the participants
for the first GNBV event on November 16, 2014.”
See Doc. No. 8.
Endless Summer, Defendants state that Defendant Forbes came
up with the name “through discussions with Mr. Bennett,
” and “did the planning, organizing, and sales
for the first ESVT event which occurred on December 7,
2014.” Prior to that first event, Defendants state that
WAVE had promoted Endless Summer events on its website for
Endless Summer and on social media. Defendant WAVE only
authorized Plaintiff to use the ESVT brand on events he ran,
but WAVE was not compensated for those events. Regarding
JBVL, Defendants assert that the brand is owned by Defendant
WAVE, and Defendant WAVE sought permits for the first JBVL
event in March 2016. On October 21, 2016, Defendants state
WAVE bought the domain name for JBVL's website.
Defendants argue Defendant WAVE was the first to advertise
JBVL events “at least as early as October 30, 2016
through [WAVE's] own website . . . and social media
accounts.” See Doc. No. 8. Defendants claim
WAVE “did all planning, permitting, and organizing of
the first series of JBVL events, with the first event
occurring on February 5, 2017.” See Doc. No.
8. Defendants state Plaintiff was supposed to obtain the logo
for Defendant WAVE and submit records of payment for
reimbursement, but Plaintiff failed to do so.
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 9 (2008). “A plaintiff
seeking a preliminary injunction must establish that he
is” (1) “likely to succeed on the merits, ”
(2) “likely to suffer irreparable harm in the absence
of preliminary relief, ” (3) “that the balance of
equities tips in his favor, ” and (4) “that an
injunction is in the public interest.” Id. at
20; see JL Beverage Co., LLC v. Jim Beam Brands Co.,
828 F.3d 1098, 1105 (9th Cir. 2016) (stating that the
plaintiff “bears the burden of establishing the merits
of its claims” on a motion for preliminary injunction).
The Ninth Circuit employs a “‘sliding scale'
approach to evaluating the first and third Winter
elements, ” which dictates that “a preliminary
injunction may be granted when there are ‘serious
questions going to the merits and a hardship balance that
tips sharply toward the plaintiff, ' so long as
‘the other two elements of the Winter test are
also met.'” See Ass'n des Eleveurs de
Canards et d'Oies du Quebec v. Harris, 729 F.3d 937,
944 (9th Cir. 2013) (quoting Alliance for the Wild
Rockies v. Cottrell, 632 F.3d at 1131-32 (9th Cir.
2011)). “Serious questions” are
“substantial, difficult and doubtful, as to make them a
fair ground for litigation and thus for more deliberative
investigation.” See Republic of the Philippines v.
Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988).
“Serious questions need not promise a certainty of
success, nor even present a probability of success, but must
involve a ‘fair chance of success on the
“[i]n deciding a motion for preliminary injunction, the
district court ‘is not bound to decide doubtful and
difficult questions of law or disputed questions of
fact.'” Int'l Molders' and Allied
Workers' Local Union No. 164 v. Nelson, 799 F.2d
547, 551 (9th Cir.1986) (citing Dymo Indus., Inc. v.
Tapewriter, Inc., 326 F.2d 141, 143 (9th Cir.1964)).
But, if a court does make factual findings or legal
conclusions “when evaluating the merits of a
preliminary injunction motion, ” those findings and
conclusions “are not binding at trial on the
merits.” See Purdum v. Wolfe, No. C-13-04816
DMR, 2014 WL 171546, at *4 (N.D. Cal. Jan. 15, 2014) (quoting
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395
moves for a preliminary injunction. Specifically, Plaintiff
requests the Court order Defendants to, pending resolution of
this action, refrain from:
1. “[R]unning any volleyball events using the GNBV,
Endless Summer, and JBVL brands;”
2. “[A]dvertising, promoting, and posting on any social
media platforms under the names GNBV, Endless ...