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Bennett v. Forbes

United States District Court, S.D. California

June 9, 2017



          Hon. Michael M. Anello United States District Judge

         On 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.


         The Parties highly dispute the facts pertinent to Plaintiff's motion for a preliminary injunction, which is based solely on Plaintiff's trademark infringement claim.[1]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, [2] 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.

         Regarding 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.”[3]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.

         Regarding 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.

         Regarding 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 February 2017.

         According 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.

         On the 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.

         Regarding GNBV, Defendants contend Defendant Forbes came up with the name in March 2014, and Defendant WAVE then purchased the domain name 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.

         Regarding 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.

         Legal Standard

         “A 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 merits.'” Id.

         Further, “[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 (1981)).


         Plaintiff 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 ...

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