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Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc.

United States District Court, S.D. California

November 16, 2017

COLUMBIA SPORTSWEAR NORTH AMERICA, INC., an Oregon Corporation, Plaintiff,
v.
SEIRUS INNOVATIVE ACCESSORIES, INC., a Utah corporation, Defendant.

          David R. Boyajian David W. Axelrod Brenna K. Legaard Nicholas F. Aldrich, Jr. Schwabe, Williamson & Wyatt, P.C. Attorneys for Plaintiff

          Christopher S. Marchese Seth M. Sproul Michael A. Amon Garrett K. Sakimae Tucker N. Terhufen Fish & Richardson P.C. Renée Rothauge Markowitz Herbold P.C.Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge

         Before the Court is Columbia Sportswear North America, Inc.'s (“Columbia”) Motion for a Temporary Restraining Order (“TRO”). Columbia seeks a TRO enjoining Seirus Innovative Accessories, Inc. (“Seirus”), from initiating patent reexamination proceedings with the United States Patent and Trademark Office (“PTO”) challenging the validity of Columbia's Design Patent, D657, 093 (“Design Patent”). Because Columbia's motion has satisfied the four traditional factors warranting a TRO, the motion is GRANTED.

         BACKGROUND

         Columbia's Design Patent has been at issue in this case for nearly three years. Seirus initially sought declaratory judgment of invalidity on the Design Patent. The parties ultimately filed a joint motion for judgment that the Design Patent was valid, dismissing Seirus's invalidity challenges with prejudice. See Joint Mot. for J. Re Design Patent, ECF 79; J. of Validity of Design Patent Pursuant to FRCP 54(b), ECF 81. The Court granted summary judgment that Seirus's Heatwave products infringed the Design Patent. See Op. & Order, Aug. 10, 2016, ECF 105. After a two-week trial, a jury unanimously determined that Seirus was liable to Columbia for $3, 018, 175 in profits from its infringement of the Design Patent. See Jury Verdict Form, ECF 377. Now, Columbia has filed its TRO, claiming that Seirus plans to initiate a reexamination proceeding with the PTO to challenge the validity of the Design Patent. See Pl.'s Mem. in Support of TRO, ECF 393; Aldrich Decl. Exs. A & B, ECF 395.

         STANDARD

         The standard for a TRO is “essentially identical” to the standard for a preliminary injunction. Chandler v. Williams, No. CV 08-962-ST, 2010 WL 3394675, at *1 (D. Or. Aug. 26, 2010) (citing Stuhlbarg Int'l Sales Co, v. John D. Brushy & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001)); see also Daritech, Inc. v. Ward, No. CV-11-570-BR, 2011 WL 2150137, at * 1 (D. Or. May 26, 2011) (applying preliminary injunction standard to motion for TRO).

A plaintiff seeking a preliminary injunction must establish 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.

Am. Trucking Ass'ns Inc. v. City of L. A., 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 21 (2008)). Additionally, under Rule 65(b), a TRO may issue without notice to the opposing party or its attorney, only if the movant shows (1) through “specific facts in an affidavit or a verified complaint” that “immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition[, ]” and (2) that “the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” Fed.R.Civ.P. 65(b)(1).

         Finally, a TRO may issue only if the movant “gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed.R.Civ.P. 65(c). However, while the rule's language indicates that security is mandatory, the Ninth Circuit has held that “Rule 65(c) invests the district court with discretion as to the amount of security required, if any.” Johnson v. Couturier, 572 F.3d 1067, 1085 (9th Cir. 2009) (internal quotation marks omitted). The court “may dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the defendant from enjoining his or her conduct.” Id. (internal quotation marks omitted).

         DISCUSSION

         Columbia moves for a TRO on the ground that Seirus's plan to initiate reexamination proceedings with the PTO is designed solely to avoid the jury's verdict in this case. Columbia claims that Seirus is bound by its prior stipulation and the Court's binding judgment of validity. The following rulings are made for TRO purposes only. As a preliminary matter, the Court finds that Columbia has met the requirements of Rule 65(b).

         First, Columbia has demonstrated that it is likely to succeed on the merits. The parties' consent judgment on the Design Patent's validity is binding and likely precludes Seirus from initiating proceedings with the PTO. See Flex-Foot, Inc. v. CRP, Inc., 238 F.3d 1362, 1369 (Fed. Cir. 2001) (recognizing that the parties' ...


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