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Feldenkrais Guild of North America v. Wildman

United States District Court, N.D. California

May 23, 2018

Feldenkrais Guild of North America, Plaintiff,
v.
Frank Wildman, et al., Defendants.

          ORDER GRANTING PRELIMINARY INJUNCTION

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff Feldenkrais Guild of North America (“FGNA”) filed its complaint alleging trademark infringement and breach of contract, as well as its ex parte motion for a temporary restraining order and order to show cause for a preliminary injunction against defendants Frank Wildman and Feldenkrais Movement Institute. (Dkt. Nos. 1, 19.) On May 1, 2018, the Court granted the temporary restraining order and issued its Order to Show Cause Why A Preliminary Injunction Should Not Issue. (Dkt. No. 26.) The parties filed their response and reply, and the matter came on for hearing on May 15, 2018.

         The Court, having read and considered the papers and pleadings on file, the evidence submitted in support and in opposition, and the arguments of the parties, and for the reasons stated herein, Grants a Preliminary Injunction under the terms set forth below.[1]

         I. Summary of Facts

         FGNA is a not-for-profit membership association that promotes and supports the Feldenkrais Method® of somatic education and its practitioners. (Declaration of Nancy Haller, ¶ 3.) The purposes of the FGNA include increasing public awareness of the Feldenkrais Method® of somatic education, certifying and providing opportunities for continuing education of practitioners, and protecting the quality of the Feldenkrais® work and research in the effectiveness of the Feldenkrais Method® of somatic education. (Id.) FGNA first began certifying Feldenkrais® practitioners in 1989. There are about 1300 current members of the FGNA, including over 1150 members offering services throughout the United States. (Id. ¶ 6.)

         A. FGNA's Trademarks, Service Marks, and Certification Marks

         FGNA has been using certain trademarks since as early as the early 1970s, and first obtained trademark registrations covering certain marks in 1985. (Id. ¶ 4.) The United States Patent and Trademark Office has issued numerous federal trademark registrations to FGNA, set forth as follows:

Mark

Registration No.

Date of Registration

Feldenkrais

1, 374, 266

December 3, 1985

Feldenkrais Method

1, 982, 044

June 25, 1996

Guild Certified Feldenkrais Teacher

2, 187, 073

September 8, 1998

Awareness Through Movement

1, 353, 317

August 6, 1985

ATM

4, 011, 600

August 16, 2011

Functional Integration

1, 286, 531

July 17, 1984

FI

4, 184, 962

August 7, 2012

         In addition, FGNA owns other trademarks, service marks, and certification marks. (Haller Decl. ¶10.) For example, FGNA owns the certification mark GCFTCM, an acronym for Guild Certified Feldenkrais Teacher® as well as the certification mark Guild Certified Feldenkrais PractitionerCM and its acronym GCFPCM. Relevant consumers recognize the use of these marks as certifying that the user is a qualified Feldenkrais® Practitioner or Teacher. (Id. ¶ 10.)

         FGNA regulates the quality of those persons holding themselves out as practitioners and trainers of the Feldenkrais Method® of somatic education by controlling the use of the marks. The FGNA has established rules for those who may use the FGNA Marks. (Id. ¶¶ 12-16; Exh. D FGNA Policy E2.4.2.1 FGNA Service Marks, Certification Marks and Trademarks, hereinafter “FGNA Marks Policy”.) Guild Certified Feldenkrais Practitioners, FGNA Professional Members, authorized trainees are granted licenses to use certain of the FGNA Marks, subject to enumerated conditions in the FGNA Marks Policy. (Id. ¶ 5.) To be eligible to use the FGNA Marks, persons must provide verification of graduation from a professional Feldenkrais Method® training program that has been accredited by FGNA or another recognized international board under approved policies; completion of a ”crossover plan” approved by the North American Training Accreditation Board (an entity related to FGNA that is responsible for accrediting training programs); or have been granted an exception to those requirements by the FGNA Board of Directors. (Id. ¶ 13.) Members must complete: (i) continuing competence requirements, including self-assessment, creation of learning plan; (ii) twenty hours of appropriate continuing education annually; and (iii) 100 hours of professional practice annually. Members also must agree to comply with FGNA policies.[2] (Id. ¶¶ 14-15.) Finally, new members must complete the applicable form and pay the applicable fee. (Id. ¶ 16.)

         Certified Feldenkrais® practitioners are allowed to use its trademarks, service marks and certification marks in connection with educational services relating to somatic education, among other services. (Id. ¶ 4.) FGNA and its authorized licensees have continuously used the FGNA's trademarks, service marks and certification marks in connection with these services for several decades. (Id.) Only people personally trained by Dr. Feldenkrais, graduates of FGNA-accredited training programs, and others who have received authorization from FGNA are eligible to be certified by, to become members of FGNA, and to use the FGNA's trademarks, service marks and certification marks. (Id. ¶ 5.)

         B. Conduct of Wildman and Feldenkrais Movement Institute

         From 1978 to January 22, 2018, defendant Wildman was an FGNA member. He was certified by FGNA as a Feldenkrais® practitioner and was authorized to use the FGNA Marks. He agreed and was obligated to abide by the FGNA code of conduct. Wildman was president of FGNA during 1997, and was the chair of the FGNA committee that wrote the FGNA standards of practice. (Id. ¶ 17.)

         Wildman's relationship with the FGNA ended on January 22, 2018, when the FGNA and Wildman entered into a confidential agreement amidst allegations of Wildman's misconduct. (Haller Decl., Exh. E, “the Agreement.”) Under the four-page Agreement, Wildman acknowledged that he is no longer an FGNA member, an FGNA Certified Feldenkrais® Practitioner, nor an FGNA Certified Feldenkrais® Trainer. (Id. §§ 2-4.) Wildman agreed not to teach or practice the Feldenkrais® Method. (Id. § 8.) As of the effective date of the Agreement, Wildman agreed to “refrain from using any FGNA trademarks, service mark, or certification marks.” (Id. § 5.) He agreed to “not represent himself or hold himself out as being certified, licensed, accredited by, or otherwise associated with, the FGNA, the Feldenkrais® Method, or any FGNA trademark, service mark, or certification mark.” (Id.) The Agreement requires that Wildman refrain from all use of the FGNA Marks. (Id.) Under the Agreement, Wildman had until March 22, 2018, to make the changes required. (Haller Decl. ¶ 26.) By his own admission, Wildman failed to complete the changes. (Declaration of Frank Wildman, Dkt. No. 33-3, at ¶13.) This action ensued.

         II. Applicable Standard

         The Court may grant preliminary injunctive relief in order to prevent “immediate and irreparable injury.” Fed.R.Civ.P. 65(b). To establish a right to a preliminary injunction, a plaintiff must demonstrate that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm absent preliminary relief; (3) the balance of equities tips in its favor; and (4) the injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); American Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1054 (9th Cir. 2009).

         So long as the plaintiff makes a threshold showing of irreparable harm and likelihood of success on the merits, a stronger showing on one element may offset a weaker showing on another. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-33 (9th Cir. 2011); see also Leiva-Perez v. Holder,640 F.3d 962, 966 (9th Cir. 2011). The Winter factors are evaluated on a sliding scale: ‚Äúserious questions going to the merits, and a balance of hardships that tips sharply toward the plaintiff can support issuance of preliminary injunction, so long as the plaintiff also shows that ...


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