Merch Traffic, LLC v. Does 1-100 et al
| Merch Traffic, LLC |
| John Does 1-100, Jane Does 1-100 and XYZ Company |
| 1:2023cv03947 |
| May 11, 2023 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Denise L Cote |
| Trademark |
| 15 U.S.C. § 1051 Trademark Infringement |
| None |
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| Document Text |
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Filing 18
PRELIMINARY INJUNCTION AND SEIZURE ORDER: The Court hereby finds: 1. By reason of the substantial and continuous use of the Group's Trademarks in connection with the Group's work as performers, said marks have acquired meanings identified with the Group and with products and services associated with them; 2. The served defendants, and those in active concert or participation with such defendants, have infringed upon Plaintiff's rights in the Group's Trademarks, and have as well committed acts of unfair competition against Plaintiff herein by manufacturing, distributing, offering for sale and selling merchandise bearing any or all of the Group's Trademarks at or near the sites of the Group's concerts, without having obtained a license or any other authorization to do so, as alleged in the complaint; 3. The defendants' acts, 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 trademarks 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 and/or the Group with respect to such goods; 4. Defendants, and those in active concert or participation with them, will continue to sell such infringing merchandise unless enjoined by the Court; and 5. Copies of this Court's Temporary Restraining Order; Seizure Order; and Order to Show Cause Regarding 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 infringing, bootleg merchandise has been seized from the defendants; NOW, THEREFORE, IT IS HEREBY ORDERED, that the defendants, their agents, employees, representatives, attorneys, successors, and assigns, and all persons, firms, and corporations acting in active concert or participation with said defendants, are enjoined and restrained from: (A) Using any or all of the Group's Trademarks, in connection with the sale, offering for sale, distribution, and/or advertising of any clothing or other merchandise, as further set forth 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, or local deputy sheriffs, and any person acting under their supervision (collectively "Process Servers") are hereby authorized to seize and impound any and all infringing merchandise bearing any or all of the Group's Trademarks, as further set forth herein. IT IS FURTHER ORDERED, that service of a copy of this Order together with the Complaint be made upon defendants by the Process Servers at the time of the seizure provided for herein is effected and that such service shall be deemed good and sufficient. IT IS FURTHER ORDERED, that the Process Server or agents for Plaintiff be allowed to photograph, videotape or otherwise visually 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 person 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. 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 infringing items 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 of One Thousand Dollars ($1,000) previously 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. (As further set forth in this Order.) IT IS SO ORDERED. (Signed by Judge Denise L. Cote on 6/2/2023) (vfr) Transmission to Finance Unit (Cashiers) for processing.
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| Minute Entry for proceedings held before Judge Denise L. Cote: Show Cause Hearing held on 6/2/2023. (Court Reporter Alena Lynch) (jwh) |
| Filing 17 LETTER addressed to Judge Denise L. Cote from Cara R. Burns dated June 1, 2023 re: OSC Hearing, Proposed Order. Document filed by Merch Traffic, LLC. (Attachments: #1 Text of Proposed Order [Amended] for PI & SO).(Burns, Cara) |
| Filing 16 DECLARATION of Emily Holt re: #12 Order to Show Cause,,,,,,,,,,,,,,,,,,,,,,,,,,, Set Deadlines,,,,,,,,,,,,,,,,,,,,,,,,,, . Document filed by Merch Traffic, LLC. (Attachments: #1 Text of Proposed Order for PI & SO, #2 Exhibit B - Bootleggers, #3 Exhibit C - Infring Merch Samples, #4 Exhibit D - Proofs of Service).(Burns, Cara) |
| Filing 15 NOTICE OF APPEARANCE by Cara Burns on behalf of Merch Traffic, LLC..(Burns, Cara) |
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Filing 14
ORDER granting #13 Motion for Cara R. Burns to Appear Pro Hac Vice (HEREBY ORDERED by Judge Denise L. Cote)(Text Only Order) (jwh)
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| Filing 13 MOTION for Cara R. Burns to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Merch Traffic, LLC. (Attachments: #1 Affidavit of C Burns, #2 Exhibit Cert of Good Stdg, #3 Text of Proposed Order for PHV).(Burns, Cara) |
| >>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. #13 MOTION for Cara R. Burns to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (sgz) |
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Filing 12
TEMPORARY RESTRAINING ORDER; SEIZURE ORDER; AND AN ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION AND SEIZURE ORDER SHOULD NOT ISSUE: IT IS HEREBY ORDERED that defendants, John Does 1-100, Jane Does 1-100 and XYZ Company their true identities being unknown (collectively "Defendants"), show cause before the Honorable Denise Cote, United States District Court Judge, in the United States District Court for the Southern District of New York, located at 500 Pearl Street, New York, New York at 2:00 p.m. on June 2, 2023, or as soon thereafter as counsel can be heard, why an order pursuant to the Lanham Act 15 U.S.C. 1051 et. seq., Fed. R. Civ. P. Rule 65, and the All Writs Act 28 U.S.C. 1651 should not be entered granting to Plaintiff, Merch Traffic, LLC, a preliminary injunction to enjoin the Defendants from manufacturing, distributing, selling or holding for sale, any clothing, jewelry, photographs, posters and other merchandise ( collectively the "Infringing Merchandise") and to seize the same bearing the federally registered trademarks, service marks, likenesses, logos and other indicia of the Group, "BLINK-182" ( collectively, the "Group's Trademarks"). AND IT APPEARING TO THE COURT that Defendants are about to sell and distribute the Infringing Merchandise bearing any or all of the Group's Trademarks as set forth in Plaintiff's complaint and declaration, and will continue to carry out such acts unless restrained by order of the Court; AND IT APPEARING TO THE COURT that immediate and irreparable injury, loss or damage will result to the Plaintiff before Defendants can be identified and given notice and their attorneys can be heard in opposition to the granting of the temporary restraining order, in that the Defendants are preparing to manufacture, distribute and sell Infringing Merchandise as set forth in the Plaintiff's complaint, and that, unless said Defendants are enjoined from said manufacture, distribution, and sale, the Plaintiff will suffer immediate and irreparable injury and harm in the form of a loss of income, lessening and dilution of the value of the Group's Trademarks, interference with Plaintiff's ability to exploit, market and license its merchandising rights, confusion in the marketplace as to the duly authorized source of merchandise depicting the Group's Trademarks, and impairment of the good will Plaintiff and its licensors have in the said Group's Trademarks; IT IS FURTHER ORDERED that pending hearing and determination of this application, or the expiration of fourteen (14) days from the date hereof whichever occurs first, the 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 temporarily restrained from manufacturing, distributing and selling Infringing Merchandise bearing the any or all of the Group's Trademarks; AND IT IS FURTHER ORDERED that the United States Marshal for this District, the state police, local police or local deputy sheriffs, and any person acting under their supervision, are hereby authorized to seize and impound any and all Infringing Merchandise bearing any or all of the Group's Trademarks (namely of "BLINK-182"), which defendants attempt to sell or are holding for sale, including from any carton, container, vehicle, or other means of carriage in which the Infringing Merchandise is found from four (4) hours before to four (4) hours after any performance of the tour within two (2) mile vicinity of the halls, stadiums or arenas at which the Group's tour shall be performing, including but not limited to in connection with the concerts to be held on May 19, 2023, at Madison Square Garden in New York, New York; AND IT IS FURTHER ORDERED that this order be and is hereby conditioned upon Plaintiffs filing with the Clerk of this Court an undertaking in the form of a bond, certified check, or cash in the amount of $1,000.00 no later than May 16, 2023, to secure the payment of such costs and damages not to exceed such sum as may be suffered or sustained by any party who is found to be wrongfully restrained hereby; AND IT IS FURTHER ORDERED that this temporary restraining order is conditioned upon the Plaintiffs advancing to the law enforcement officers such sum as is required by the same to cover the fees for their said services, in the event Plaintiff seeks their services in this or any other district; AND IT IS FURTHER ORDERED that service of a copy of this order to show cause together with the complaint upon which it is based, be made upon the Defendants by the United States Marshal, state or local police, local deputy sheriffs or by any person over the age of eighteen (18) years not a party to this action selected for that purpose by the Plaintiff, at the time of the seizure provided herein is effected and that such service shall be deemed good and sufficient; AND IT IS FURTHER ORDERED that Defendants' responsive papers, if any, shall be filed with the Clerk of this Court and served upon the attorneys for Plaintiff by delivering copies to its counsel on or before May 30, 2023. Any reply shall be filed by the Plaintiff and served upon each appearing defendant or his/her counsel on or before June 1, 2023. Plaintiff is to provide copies of all other filed pleadings at the request of any identified defendant; AND IT IS FURTHER ORDERED that any person who is hereafter served with a copy of this order who objects to the provisions hereof may submit his or her objections to this Court or otherwise move for relief from this Court according to the Federal Rules of Civil Procedure, including that pursuant to F.R.C.P. Rule 65 (b)(4). Any person can apply to this Court to modify or dissolve this Order on two (2) days' notice to the plaintiff. No such application shall serve to suspend this Order or to stay its terms unless otherwise ordered by this Court. IT IS SO ORDERED. ( Show Cause Hearing set for 6/2/2023 at 02:00 PM in Courtroom 18B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote.), ( Replies due by 6/1/2023.) Show Cause Response due by 5/30/2023. (Signed by Judge Denise L. Cote on 5/12/2023) (vfr) Transmission to Finance Unit (Cashiers) for processing.
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| Minute Entry for proceedings held before Judge Denise L. Cote: Status Conference held on 5/12/2023. (jwh) |
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Filing 11
ORDER: Having received, on May 11, 2023, the plaintiff's ex-parte application for a temporary restraining order, it is hereby ORDERED that a conference is scheduled for May 12, 2023, at 3:30 p.m. in Courtroom 18B, United States Courthouse, 500 Pearl Street, New York, NY 10007. ( Status Conference set for 5/12/2023 at 03:30 PM in Courtroom 18B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 5/11/2023) (vfr)
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| Filing 10 DECLARATION of Cara Burns (Pursuant to FRCP Rule 65, etc.) in Support re: #6 Proposed Order to Show Cause With Emergency Relief,. Document filed by Merch Traffic, LLC. (Attachments: #1 Exhibit A - Prior SDNY Orders, #2 Exhibit B - Prior Group Orders, #3 Exhibit C- Prior Other NY Orders, #4 Exhibit D - Prior Other Orders).(Bradford, Mark) |
| Filing 9 DECLARATION of Emily Holt in Support re: #6 Proposed Order to Show Cause With Emergency Relief,. Document filed by Merch Traffic, LLC. (Attachments: #1 Exhibit A - Tour Dates, #2 Exhibit B- Autho Merch, #3 Exhibit C - Bootleggers, #4 Exhibit D - Bootleggers Observd, #5 Exhibit E - Bootlg Merch Being Sold).(Bradford, Mark) |
| Filing 8 AO 120 FORM TRADEMARK - CASE OPENING - SUBMITTED. In compliance with the provisions of 15 U.S.C. 1116, the Director of the U.S. Patent and Trademark Office is hereby advised that a court action has been filed on the following trademark(s) in the U.S. District Court Southern District of New York. Director of the U.S. Patent and Trademark Office electronically notified via Notice of Electronic Filing (NEF). (vf) |
| Filing 7 MEMORANDUM OF LAW in Support re: #6 Proposed Order to Show Cause With Emergency Relief, . Document filed by Merch Traffic, LLC..(Bradford, Mark) |
| Filing 6 PROPOSED ORDER TO SHOW CAUSE WITH EMERGENCY RELIEF. Document filed by Merch Traffic, LLC. (Attachments: #1 Text of Proposed Order for TRO & Seizure Order, etc.).(Bradford, Mark) Proposed Order to Show Cause to be reviewed by Clerk's Office staff. |
| Filing 5 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent Live Nation Entertainment, Inc. (LYV) for Merch Traffic, LLC. Document filed by Merch Traffic, LLC..(Bradford, Mark) |
| Filing 4 NOTICE OF APPEARANCE by Mark Dana Bradford on behalf of Merch Traffic, LLC..(Bradford, Mark) |
| Filing 3 CIVIL COVER SHEET filed..(Bradford, Mark) |
| Filing 2 AO 120 FORM TRADEMARK - NOTICE OF SUBMISSION BY ATTORNEY. AO 120 Form Patent/Trademark for case opening submitted to court for review..(Bradford, Mark) |
| Filing 1 COMPLAINT against Jane Does 1-100, John Does 1-100, XYZ Company. (Filing Fee $ 402.00, Receipt Number ANYSDC-27725918)Document filed by Merch Traffic, LLC..(Bradford, Mark) |
| ***NOTICE TO COURT REGARDING PROPOSED ORDER TO SHOW CAUSE WITH EMERGENCY RELIEF. Document No. #6 Proposed Order to Show Cause With Emergency Relief, was reviewed and approved as to form. (tp) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Denise L. Cote. Please download and review the Individual Practices of the assigned District Judge, located at #https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #https://nysd.uscourts.gov/rules/ecf-related-instructions..(vf) |
| Magistrate Judge Ona T. Wang is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (vf) |
| Case Designated ECF. (vf) |
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