Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 1 of 31 Page ID #:1155
1 William R. Bailey, State Bar No. 245920
[email protected] 2 Kathleen L. T. Tubania, State Bar No. 245856 3 [email protected] BAILEY LAw CoRPORATION 4 4000 MacArthur Blvd., Suite 600 5 Newport Beach, CA 92660 Telephone: 714.881.5160 6 Facsimile: 888.737.8702 7 Attorneys for Defendants Alex & Chloe, Inc., 8 'Christopher Walter Lichtenberg, Marked Showroom, LLC, Jaqueline Yi, Tu Tran, Kyle Mockett, and Kaytee Enright 9 10 UNITED STATES DisTRICT CouRT 11 CENTRAL DISTRICT OF CALIFORNIA- WESTERN DIVISION 12 13 Brian Lichtenberg, LLC, a California 14 limited liability company; and Brian Lichtenberg, an individual, 15 16 Plaintiffs, 17 v. 18 Alex & Chloe, Inc., a California corporation, Christopher Walter 19 Lichtenberg, an individual; Marked 20 Showroom, LLC, a California limited liability company; Jacqueline Yi, an 21 individual; Kyle Mockett, an individual; 22 Kaytee Enright, an individual, 23 Defendants. 24 25 26 1 1 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ 27 Case No. 2:13-CV-6837-DDP (PJWx) OPPOSITION To PLAINTIFFS' Ex PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER [FILED CoNCURRENTLY WITH DEFENDANTS' EviDENTIARY OBJECTIONS TO THE PLAINTIFFS' DECLARATIONS, DECLARATION OF WILLIAM R. BAILEY, AND REQUEST FOR JUDICIAL NoTICE] Hon. Dean D. Pregerson Date: None Set Time: None Set Place: Courtroom 3, 2nd Floor Discovery Cut-Off: None Set None Set Pre-Trial Conference: Trial Date: Action Filed: None Set September 17, 2013 OPPOSITION ro PLAINTIFFS' Ex P.<UITE APPLICATION FOR TEMPORARY REsTRAINING ORDER PAGE 1 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 2 of 31 Page ID #:1156 1 Defendants Alex & Chloe, Inc. (herein "AC") and Christopher Walter Lichtenberg 2 (herein "CL") Gointly referred to as "ACCL"), Marked Showroom, LLC, Jaqueline Yi, 3 Tu Tran, Kyle Mockett, and Kaytee Enright (hereinafter "Defendants"), hereby oppose 4 5 Plaintiffs Brian Lichtenberg and Brian Lichtenberg, LLC's (hereinafter "Plaintiffs") Ex 6 Parte Application for Temporary Restraining Order and Order to Show Cause RE 7 Preliminary Injunction on the grounds set forth in the following Memorandum of Points 8 and Authorities. 9 Additionally, due to time constraints and page limitations, for which there is not 10 11 opportunity to request modifications, it is not possible to fully brief this matter. 12 Additional time and pages are requested to fully brief Defendants' Opposition to 13 Plaintiffs' Ex Parte Application for TRO, which was previously DENIED THREE 14 TIMES by the state court. 15 16 17 18 19 20 21 22 23 24 25 26 27 OPPOSITION ro PLAINTIFFS' Ex PARTE APPLICATION FOR TEMPORARY REsTRAINlNG ORDER PAGE 2 OF27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 3 of 31 Page ID #:1157 1 TABLE oF CoNTENTS 2 PAGE 3 I. Introduction and Factual Background ...................................................................... 3 I 4 II. Plaintiffs Have Materially Changed their Facts ..................................................... .4 5 Ill. Plaintiffs are Forum-Shopping After 7 Months of Extensive and Costly State 6 Court Litigation ........................................................................................................ 6 7 8 IV. This Court Should Decline to Exercise Supplemental Jurisdiction and Stay 9 Plaintiffs' Lanham Act Claim ................................................................................... 7 10 V. The State Court Has Already Decided the Exact Same Ex Parte Issues in a 11 Previous OSC RE Preliminary Injunction Hearing .................................................. 8 12 VI. Plaintiffs Still Have Not Met Their Burden for a TRO ................................ ll 13 14 A) Plaintiffs Have No Urgent Matter that Justifies Ex Parte Relief and Plaintiffs' 15 Application for TROis Barred by Laches Due to Delay .................................. l2 16 B) Plaintiffs Still Cannot Establish a Likelihood of Success on the Merits ........... l3 17 1. There is NO Violation of Section 43(a) of the Lanham Act- Unfair 18 19 Competition ................................................................................................... l3 20 a) The Facts Show that Plaintiffs Began Selling Their "Ballin Paris" 21 Design After Defendants and Any Claim by Plaintiff for Unfair 22 Competition Must Necessarily Fail ....................................................... 13 23 b) Plaintiffs have No Viable Lanham Act Claim ......................................... l4 24 25 i) Plaintiffs' Trade Dress Does Not Identify the Source of the Plaintiffs' 26 Product ................................................................................................ 16 27 TABLE oF CoNTENTs AND AuTHoRITIEs 28 PAGE i ofii Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 4 of 31 Page ID #:1158 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ii) The Plaintiffs' Trade Dress is Not Distinctive and Does Not Distinguish Plaintiffs' Goods From Those Manufactured or Sold by Others Selling "Parody" or "Spoof'' Shirts ....................................... .18 iii) The Plaintiffs' Products Do Not Deserve Trademark Protection Because Any Similar Trade Dress is "Functional" ............................ 22 iv) Defendants' Garment Labels Do Not Create a Likelihood of Consumer Confusion ......................................................................... 23 2. Because Plaintiffs Cannot Conclusively Show Ownership in "Ballin Paris", Plaintiffs' Claims in Their Other Causes of Action Must Also Fail to Warrant Injunctive Relief ............................................................................. 24 C) Plaintiffs Cannot Establish a Likelihood of Irreparable Harm .......................... 24 D) The Balance of Equities Dictates that Defendants' NOT Be Enjoined ............. 25 E) Public Interest is Best Served by NOT Allowing Defendants to be 17 Enjoined .............................................................................................................. 26 18 VII. Expedited Discovery is Not Warranted ........................................................ 26 19 20 21 22 23 24 25 26 27 28 PAGE ii ofii Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 5 of 31 Page ID #:1159 1 TABLE OF AuTHORITIES 2 3 FEDERAL CASES 4 !Bradley v. Chiron Corp., 136 F. 3d 1317 (Fed. Cir. 1998) ................................................. 6 5 Christian Laboutin SA. v. Yves Saint Laurent Am. Holding, Inc., 6 696 F. 3d 206 (2nd Cir., 2012) ................................................................................ 20 7 8 Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F. 3d 1252 (9 1 h Cir., 2001) ........................ 15 9 Herman Miller, Inc. v. Palazzetti Imports and Exports, 10 270 F. 3d 298 (6 1 h Cir., 2001) .................................................................................. 18 11 Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 12 13 182 F. 3d 598 (8th Cir., 1999) ................................................................................. 12 14 Int'lJensen, Inc. v. Metrosound U.S.A., Inc., 15 4 F. 3d 819 (9th Cir., 1993) ...................................................................................... 15 16 d Knitwaves v. Lolly-togs Ltd. (Inc.), 71 F. 3d 996 (2n Cir. 1995) ...................................... 16 17 Miller v. California Pac. Med. Ctr., 991 F.2d 536 (9th Cir. 1993) .................................... 12 18 19 Mullis v. United States Bank. Ct., 828 F.2d 1385 (9th Cir. 1987) ........................................ 6 20 Nishimatsu Canst. Co. Ltd. v. Houston Nat'l Bank, 515 F. 2d 1200 (5th Cir. 1975) ............ 6 21 Polymer Technologies, Inc. v. Bridwell103 F. 3d 970 (Fed Cir. 1996) ............................ 12 22 Qualitex Co v. Jacobson Prods. Co., Inc., 23 514 U.S. 159, 115 S. Ct. 1300 (1995) ..................................................................... 22 24 25 Samara Bros., Inc. v. Judy-Philippine, Inc. 969 F. Supp. 895 (S.D.N.Y., 1997) ............. 16 26 Stephen W. Boney, Inc. v. Boney Servs., Inc., 127 F.3d 821 (9th Cir. 1997) ...................... 18 27 AND 28 PAGE i ofii Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 6 of 31 Page ID #:1160 1 2 3 4 TABLE OF AUTHORITIES (CoNTINUED) Tom Doherty Assoc., Inc v. Saban Entertainment, Inc., 60 F. 3d 27 (2nd Cir. 1995) ........ 121 Two Pesos, Inc. v. Taco Cabana, Inc., 5 6 505 U.S. 763, 112 S. Ct. 2753 (1992) ..................................................................... 15 7 Walmart Stores, Inc. v. Samara Brothers, Inc., 8 529 U.S. 205, 120 S. Ct. 1339 (2000) .................................................................... 14 9 10 West Coast, Inc. v. Snohomish County, 11 33 F. Supp. 2D 924 (W.D. Wash., 1999) .................................................................. 7 12 Winter v. Natural Resources Defense Council, Inc., 13 555 U.S. 7, 129 S. Ct. 366 (2008) .......................................................................... 12 14 15 STATUTES 16 17 :15 u.s.c. 1127 ................................................................................................................ 14 18 28 u.s.c. 1367 .................................................................................................................. 7 19 Cal. Civ. Code 3426.1 .................................................................................................... 10 20 I 21 22 23 24 25 26 27 TABLE OF CoNTENTS AND AuTHORITIES 28 I I PAGE ii of ii Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 7 of 31 Page ID #:1161 1 MEMORANDUM OF PmNTs AND AuTHORITIES 2 I. INTRODUCTION AND FACTUAL BACKGROUND 3 Plaintiffs filed this lawsuit on September 17, 2013 after dismissing a heavily 4 5 litigated and virtually identical verified complaint they filed on March 22, 2013 in the 6 Superior Court of California, County of Los Angeles, excepting the new perjurious 7 factual changes Plaintiffs inserted into their federal pleadings, because the state court 8 judge refused to grant a preliminary injunction. 1 After 7 months of intensive discovery, 9 motion practice, and on the eve of Defendants 1 demurrer and motion to strike hearings, 10 11 Plaintiffs dismissed their state court case on September 12, 2013. See Brian Lichtenberg 12 LLC, et al. v. Alex & Chloe, Inc., Los Angeles Superior Court, Case Number BC503835 13 (hereinafter "State Case"). However, the State Case is still pending before the state 14 court on the IDENTICAL issues because Defendants filed a Cross-Complaint against 15 Plaintiffs which was not dismissed. 16 17 Importantly, this exact issue which is before this Court today is the exact same 18 issue which was DENIED by the state court on three separate occasions. 19 The heart of Plaintiffs 1 complaint in state court was that Plaintiff believed 20 Defendants stole the "Ballin Paris" design and used Plaintiffs' contacts to sell the 21 merchandise. Defendants/Cross-Complainants ACCL 1 s state court allegations are 22 23 essentially the opposite of Plaintiffs. Plaintiffs stole ACCL's "Ballin Paris" design, 24 which was publicly release for sale by ACCL on January 27, 2013, and Plaintiff's also 25 11--------- 1 Plaintiffs asserted the following COA: (1) Breach of Contract, (2) Conversion, (3) Unfair Competition, ( 4) Breach of 26 Fiduciary Duty and Duty of Loyalty; (5) Intentional Interference with Prospective Economic Relations; (6) Negligent Interference with Prospective Economic Relations, (7) Misappropriation of Trade Secrets; (8) Defamation, Libel, and Slander; (9) Intentional Infliction of Emotional Distress; (10) Negligent Infliction of Emotional Distress; (11) Declaratory 27 Relief; and (12) Common Count. OPPOSITION ro PLAINTIFFS' Ex PARTEAPPUCATION FOR TEMPORARY RESTRAINING ORDER PAGE 3 OF 27 28 5 10 15 20 25 1 Ilbreached their contracts with Defendant CL related to other designs. 2 2 II. PLAINTIFFS HAVE MATERIALLY CHANGED THEIR FACTS 3 Plaintiffs filed their first application for TRO on March 28, 2013, which was 4 II IIsummarily granted by the state court, however, on April 19, 2013 at the OSC for 6 IIPreliminary Injunction, the state court reversed it's position and dissolved the TRO. The 7 court then went to great lengths in a nine (9) page order discussing why a TRO and 8 Preliminary Injunction should not issue for Plaintiffs. See Exhibit J to Defendant's 9 Request for Judicial Notice, Department 86 April 19, 2013 Minute Order. 11 Of particular importance, the state court indicated that the facts provided by both 12 IIparties was "inconclusive" as to the dispositive issue of who created the Ballin Paris 13 IIdesign first. Id. at page 4 of 9. The court cited to the following facts: 14 1) Plaintiff conceived the Ballin Paris design in September 2012, 2) CL's employment with Plaintiff began in January 2013, 3) at some unspecified time Plaintiff's shared the Ballin Paris idea with CL, 16 4) CL's infringing acts took place DURING his employment by Plaintiff's. 17 In opposition to Plaintiffs' claims, the court noted 18 1) CL began working on a Balmain parody in June 2012, but the exhibit does not support that conclusion, 19 2) CL arrived at his Ballin Paris design on October 21,2012, 3) AC had sweatshirts printed with the Ballin design by January 21, 2013. 21 Surprisingly, despite having filed an original Verified Complaint, upon which the 22 "foregoing order was based, and having filed a Verified First Amended Complaint on 23 April 23, 2013 which also conformed to the above facts, on May 23, 2013, in Brian 24 11------- 2 Defendants asserted the following CGA: (1) False Advertising, (2) Breach of Contract (Partnership), (3) Breach of 26 II Contract (Employment), (4) Intentional Interference with Contractual Relations, (5) Intentional Interference with Prospective Economic Advantage, (6) Negligent Interference with Prospective Economic Advantage, (7) Trade Libel, (8) II Libel, (9) Slander, (10) Fraud and Intentional Deceit, (11) Declaratory Relief, (12) Accounting, and (13) Breach of 27 28 Confidence. OPPOSITION TO PLAINTIFFS I Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 4 OF 27 I Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 8 of 31 Page ID #:1162 5 10 15 20 25 1 Lichtenberg's Declaration in Support of Plaintiff's Ex Parte Application for a TRO (2 nd 2 Attempt), Brian changes his position and now claims to have conceived the idea for the 3 Ballin Paris design on January 29, 2012 as a result of an email exchange with Kanye 4 West. 6 Not surprisingly, this email with Kanye West has nothing to do with Balmain or a 7 parody thereof, the word "ballin" in the email was used only once as a verb in the 8 subject line (as oppose to a noun), and Brian now has a sketch from his day-planner 9 showing a completed sketch on January 29, 2012. See Exhibit N to Defendant's Request 11 for Judicial Notice, Brian Lichtenberg's May 28, 2013 Declaration at 1f25. 12 These new and contradictory facts are also found in the instant federal complaint 13 at 1f1f 45,46, and Exhibit B, only they have been massaged a little more AND these new 14 and contradictory facts can also be found in the current moving papers. See Brian Lichtenberg's Declaration in Support Plaintiff's Ex Parte Application for a TRO dated 16 17 October 14, 2013 at 1f32. 18 Additionally, other new "facts" seem to have emerged in Brian's current 19 declaration, including that he supposedly shared his idea with Reda Bouaissa, a cross- defendant in the State Case, AND began sketching the design on January 30, 2012, AND 21 II 22 Brian apparently shared the design with CL in March 2012. [d. at 1f1f34-37. 23 These new factual revelations are not coincidental. I would hope the timing of 24 these revelations are not lost on the court. Only after the state court identified Plaintiff's legal hurdles, but incidentally not before Plaintiffs filed a First Amended Complaint, did 26 the Plaintiff's miraculously discover new and contradictory supporting facts that 27 " OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 5 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 9 of 31 Page ID #:1163 5 10 15 20 25 1 miraculously cure some defects identified by the state court. See Exhibits A-DD of 2 Defendants Request for Judicial Notice. 3 The Court is not obligated to accept contradictory facts from earlier pleadings, 4 II "exhibits attached to the complaint, or facts that can be judicially noticed even in the most 6 IIfavorable context of a 12(b)(6) review, so the Court clearly is not required to accept them 7 in the instant ex parte application and should NOT do so now. Bradley v. Chiron Corp. 8 136 F3d 1317,1324 (Fed. Cir. 1998) (the court may strike the changed allegations as 9 "false and sham"); Nishimatsu Const. Co. Ltd. v. Houston Nat'l Bank 515 F2d 1200,1206 11 1I(5 th Cir. 1975); Mullis v. United States Bank. Ct. 828 F2d 1385,1388 (9 th Cir. 1987). 12 II III. PLAINTIFFS ARE FORUM-SHOPPING AFTER 7 MONTHS OF EXTENSIVE AND COSTLY STATE 13 COURT LITIGATION 14 Plaintiffs' State Case was instigated by Plaintiffs in March of 2013. Defendants IIACCL immediately filed their complaint as cross-complaint in response. Since that 16 "time, numerous motions have been heard by the state court, including three ex parte II 17 TROs by Plaintiff, which were denied, an ex parte motion to compel by Plaintiff, which 18 19 "was denied, an ex parte protective order by Defendants, which was granted, voluminous JJdiscovery has been conducted, and case management hearings have been held. 21 Although, not inconsequentially, Defendants most important pleadings, their 22 demurrers and motions to strike, have not been heard by the court due to Plaintiffs 23 dismissal, notwithstanding, the state court has made several important and telling 24 I/findings regarding ultimate viability of Plaintiffs' claims in it's order denying Plaintiffs' 26 IIrequest for a Preliminary Injunction. 27 OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 6 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 10 of 31 Page ID #:1164 5 10 15 20 25 1 II Furthermore, the parties have spent tens of thousands of dollars intensely litigating 2 "this case in the state court and the state court has had the pleasure of spending it's limited 3 judicial resources overseeing this matter and it's heavy motion practice. 4 Finally, even a cursory review of Plaintiffs' unregistered trademark infringement 6 IIcause of action reveals that this cause of action is not only meritless, but also state law 7 claims predominate this lawsuit. Plaintiffs' federal claim is a red-herring inserted for the 8 sale purpose of changing forums. The same facts and circumstances have been and 9 continue to be at issue in the ongoing State Case. IV. THIS COURT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION AND STAY 11 PLAINTIFFS' LANHAM ACT CLAIM. 12 Defendants respectfully request that this Court decline to exercise its supplemental 13 1411jurisdiction in this case for two reasons: (1) state law claims predominate over the ONE IIfacially unsupportable federal claim asserted under the Lanham Act and (2) failing to 16 II decline will result in "duplicative litigation, wasted judicial resources, needless 17 expenditures for both parties, conflicting case schedules, a potential race to judgment, 18 19 II and/or the possibility of inconsistent verdicts". See 28 USC 1367(c)(2);West Coast, Vnc. v. Snohomish County, 33 F. Supp. 2D 924, 925 (W.D. Wash. 1999). 21 In this case, Plaintiffs' entire complaint rests on who owns the "Ballin Paris" 22 design, which is the same issue currently pending in the state court. Plaintiffs' one and 23 24 Iionly federal cause of action under the Lanham Act is their claimed trademark rights in lithe phrases "Ballin" and "Ballin Paris" and in the "fabrics, stitching, and label location" 26 ~ o n their products. See Plaintiffs Complaint at ~ ~ 4 2 , 61, 67, 95, 103, 110, 111, and 114. 27 OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 7 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 11 of 31 Page ID #:1165 5 10 15 20 25 1 However, Plaintiffs have utterly failed to identify how a phrase not related to 2 Plaintiffs' name indicates the source of goods printed with that phrase. Plaintiffs have 3 also failed to show how the "fabric, stitching, and label location" on their products 4 II lIindicate the source of the goods. Nowhere do Plaintiffs claim to have created a new 6 IIfabric for its garment labels, nor have they claimed they developed a new form or style 7 of stitching and virtually every manufacturer places a label on the inside rear collar of 8 their shirts and sweatshirts. There is nothing about the fabric, stitching, and garment 9 label location or any combination thereof that is unique to Plaintiffs. 11 Plaintiffs' Lanham Act claim is unsupportable on its face and should be dismissed 12 Iland, even if it could survive, it is still outweighed by the state law claims currently 13 "pending in the state court. 14 v. THE STATE COURT HAS ALREADY DECIDED THE EXACT SAME Ex PARTE ISSUES IN A PREVIOUS OSC RE PRELIMINARY INJUNCTION HEARING 16 Even a cursory comparison of Plaintiffs' federal complaint and state complaint 17 reveals that Plaintiffs dismissed their complaint in the state court on September 17, 2013 18 only to file the exact same complaint, excepting Plaintiff's NEW AND 19 CONTRADICTORY FACTS and a cause of action under the Lanham Act, to get a 21 IIsecond bite of the apple. 22 Plaintiffs previously applied THREE TIMES for an ex parte TRO in the state 23 court, each time making the same exact arguments. When Plaintiffs filed for their first 24 IITRO, they summarily received a their order, but it was short lived. Once the Court was 26 liable to review the parties' massive amount of moving papers the preliminary injunction OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 8 OF 27 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 12 of 31 Page ID #:1166 5 10 15 20 25 1 Ilwas denied and the TRO dissolved. When Plaintiffs filed their second ex parte TRO, it 2 "too was denied because the did not meet their burden of showing irreparable injury. The II 3 Court then ordered Plaintiffs to refrain from bringing any further ex parte TROs. 4 II nHowever, Plaintiffs ignored the court's order and when they filed a third ex parte TRO, 6 lithe court threatened them with sanctions if they did not immediately withdraw it. 7 In determining whether or not to issue a preliminary injunction in the state court 8 case, the Honorable Joanne O'Donell of the Los Angeles Superior Court made clear that 9 Plaintiffs' Application for TRO, and their entire Complaint, rests on 11 three principle claims as unfair business practices: that Defendant Lichtenberg is (1) misappropriating, marketing and 12 selling his [Plaintiff's] designs; (2) misappropriating his [Plaintiff's] contacts to assist in his marketing and selling of the 13 "Ballin" concept; and (3) running a "smear campaign" against Plaintiff on social media. 14 IISee page 3 of 9 of Exhibit J to Defendants Request for Judicial Notice. Each of 16 IIPlaintiffs' successive TROs were based on the same three claims, and Plaintiffs' instant 17 federal complaint is again based on the same three claims. The state court made clear 18 that PlaintiffFAILED to make an evidentiary showing that they will likely prevail on 19 these claims. 21 First, the State Court found that Plaintiff HAD NOT and CANNOT prove that any 22 misappropriation occurred. The facts considered by the court tend to show that Plaintiffs 23 were NOT the first in time to market or create the "Ballin Paris" design. The court made 24 !!clear that "if Plaintiff is seeking to enjoin the use without his consent of a design he 26 IIcreated, he would be making a copyright claim...As a result, an attempt to bring a 27 OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 9 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 13 of 31 Page ID #:1167 5 10 15 20 25 1 Iistatutory business practices action would fail, as federal copyright law preempts state 2 IIl aw." [d. at pages 4-5. 3 II 3 Moreover, the court went on to state that because the facts tend to show that 4 IIDefendants were first in time to market the "Ballin Paris" design, no "palming off' or 6 lIunfair competition claim can survive. [d. at page 5. This is because, the state law unfair 7 competition claim necessarily requires "that the defendant be trying to exploit a 8 competitor's reputation", which is impossible for Defendants to have done because their 9 Ballin Paris design was first to the market and bearing Defendant AC's name. Regarding 11 I/Plaintiffs' state unfair competition claims, the court stated that "Plaintiff fails to 12 Iidemonstrate the likelihood that he will prevail on the only viable claim that can be 13 IIbrought in state court on this basis." [d. at page 5. Plaintiffs have again included a 14 California unfair competition act claim, despite the court's previous finding that no such claim was viable. Thus, Plaintiffs did not meet evidentiary requirements for obtaining a 16 17 TRO or preliminary injunction on the basis that Defendants had allegedly stolen 181lPlaintiffs' "Ballin Paris" design. 19 Second, regarding Plaintiffs' claims that Defendants had misappropriated Plaintiffs' vendor lists the court found that such did not warrant a TRO or preliminary 21 II 22 lI injunction because California's Uniform Trade Secret Act requires that a trade secret be 23 Iisubject to reasonable protective measures to ensure its secrecy and Plaintiff plead no 24 "such facts. Civil Code 3426.1(d)(2)."4 II 3 It is important to note that Plaintiffs have NOT included a copyright infringement claim in this case. 26 "4Plaintiffs now seem to claim that the misappropriated trade secrets are NOT the vendor/ customer lists they previously claimed in the state court. Now, Plaintiffs claim that the misappropriated trade secrets are the "Ballin Paris" design itself and 27 II the specific details of its garments, such as fabrics, size, color, etc., which are publicly available! OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 10 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 14 of 31 Page ID #:1168 5 10 15 20 25 1 II The court went on to point out that "it appears that the 'confidential information' 2 "involved solicitation of clothing boutiques, such as Kitson and Revolve Clothing. These II 3 entities are not difficult to find and their need to purchase clothing to sell in their retail 4 II 1J0utlets is not a secret which requires time and money to discovery. Moreover, it appears 6 Iithat the parties both realize publicity from having their clothes on sale in these stores, 7 suggesting that the information is not particularly confidential." Id. at pages 6-7. In 8 addition, these clothing boutiques routinely list on their websites the names of ALL 9 designers they carry, which would give ANY lay person knowledge that Plaintiffs do in 11 Ilfact sell clothing to the certain boutique. 12 II Third, any claims that Defendants are engaging in a "smear campaign" against 13 IIPlaintiffs cannot stand because, and most importantly, "the sole specific support for this 14 claim is not actionable if Plaintiff has not demonstrated by the preponderance of the evidence that he created the "Ballin" concept." Id. at page 7. 16 17 Clearly, these claims are rooted in state law. The fact that Plaintiffs have now 18 II asserted the same claims in federal court should not now render a different result. 5 19 VI. PLAINTIFFS STILL HAVE NOT MET THEIR BURDEN FOR A TRO Plaintiffs seeking a ex parte TRO and/or preliminary injunction must establish: 21 (A) that ex parte relief is warranted; (B) a likelihood of success on the merits; (C) a 22 likelihood of irreparable harm to Plaintiffs in the absence of preliminary relief; (D) the 23 24 balance of equities tips in Plaintiffs' favor; and (E) an injunction is in the public interest. 115 Federal courts ruling on state law claims must apply the same statutes and case law as the state court would (or did in this case), which ultimately ensures that "the outcome of the litigation in the federal court should be substantially the same, so 26 II far as legal rules determine the outcome ofa litigation, as it would be if tried in a State court." See Guaranty Trust Co. of New York v. York (1945) 326 U.S. 99, 109; "The Erie rule is rooted in part in a realization that it would be unfair for the II character or result ofa litigation materially to to differ because the suit had been brought in a federal court." Hanna v. 27 Plumer (1965) 380 U.S. 460,467. OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 11 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 15 of 31 Page ID #:1169 5 10 15 20 25 1 II Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7, 129 S. Ct. 366 (2008). 2 A) PLAINTIFFS HAVE NO URGENT MATTER THAT JUSTIFIES Ex PARTE RELIEF AND_ PLAINTIFFS' APPLICATION FOR TRO IS BARRED BY LACHES DUE TO DELAY 3 4 Plaintiffs filed this lawsuit on September 17, 2013 and waited an entire month "until October 17, 2013,just three (3) days before Defendants' answers are due, to file 6 an ex parte application for a TRO. See Central District of California Civility and 7 8 "Professionalism Guidelines (B)(2) & (3). This is the same application for TRO that 9 "Plaintiffs filed three times before in state court and refused to file via noticed motion on lithe date they reserved with the state court, October 3, 2013. 11 The defense of laches is available to Defendants where the Defendant can show 12 both delay and prejudice resulting from the delay. Tom Doherty Assoc., Inc v. Saban 13 14 Entertainment, Inc. (2 nd Cir. 1995) 60 F, 3d 27, 39. Moreover, since laches is a defense lito trademark infringement, it should also be considered by the courts in evaluating the 16 II likelihood of success ofa trademark infringement claim. See Hubbard Feeds, Inc. v. 17 IAnimal Feed Supplement, Inc. (8 th Cir. 1999) 182 F, 3d 598,601-02. Most importantly, 18 any delay in seeking injunctive relief may defeat a Plaintiff's claim ofirreparable 19 injury. Miller v. California Pac. Med. Ctr. (9 th Cir. 1993) 991 F,2d 536, 544; Polymer 21 IITechnologies, Inc. v. Bridwell (Fed Cir. 1996) 103 F. 3d 970, 976. 22 Plaintiffs have asserted the exact same claims in the state court and have been 23 aggressively litigating that case for the past 7 months. Plaintiffs applied three times for 24 !Ian ex parte TRO in state court and they were denied. Both sides have already spent tens 26 Ilof thousands of dollars arguing the same issues now before this Court, which are also OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 12 OF 27 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 16 of 31 Page ID #:1170 5 10 15 20 25 1 Ilconcurrently before the state court. 2 During last 7 months, Plaintiffs NEVER claimed to have any trademark rights in 3 their product design or trade dress, as they do now. The entire time, Plaintiffs have 4 IIclaimed that the "Ballin Paris" design belonged to Plaintiffs under a work for hire 6 lIagreement. Realizing that their argument fails because Defendant AC clearly had begun 7 manufacturing garments bearing the design no later than January 17, 2013 well before 8 CCL began working for Plaintiffs on January 21, 2013, Plaintiffs began to assert claims 9 of unfair competition. After seven months of not being able to obtain a TRO and 11 IIreceiving denials from the state court after each successive application for TRO (3 in 12 Iitotal), Plaintiffs are now attempting to get a second bite of the apple in federal court. 13 B) PLAINTIFFS STILL CANNOT ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS 14 The Honorable Joanne O'Donell went to great lengths in issuing a 9 page order denying Plaintiffs' previous application for preliminary injunction explaining why 16 17 Plaintiffs have not and cannot establish a likelihood of success on the merits. Even after 18 filing the instant federal complaint with their new and contradictory "facts", it is readily 19 apparent that Plaintiffs still cannot establish a likelihood of success on the merits. As mentioned, supra, the Court should NOT consider Plaintiff's contradictory 21 II 22 Jacts, or at a minimum, attribute little creditability to them as false and a sham. 23 Ill) There is NO Violation of Section 43(a) of the Lanham Act Unfair Competition 24 a) The Facts Show that Plaintiffs Began Selling Their "Ballin Paris" Design AFTER Defendants and Any Claim by Plaintiff for Unfair Competition Must Necessarily Fail. 26 The state court made clear that any unfair competition or "palming off' claims by 27 OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATlON FOR TEMPORARY RESTRAINING ORDER PAGE 13 OF 27 28 II II Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 17 of 31 Page ID #:1171 5 10 15 20 25 1 "Plaintiffs were NOT sustainable because the facts tend to show that Defendants were 2 "first in time to sell the product in the marketplace. Any unfair competition claim 3 necessarily requires "that the defendant be trying to exploit a competitor's reputation", 4 IIwhich is impossible for Defendants to have done because their Ballin Paris design was 6 II first to the market. Plaintiffs readily admit that Defendants' "Ballin Paris" design was 7 first to market. Any confusion in the public market was brought on by Plaintiffs copying 8 Defendants. See Plaintiff's Ex Parte Application for Temporary Restraining Order 9 (hereinafter "Plaintiffs' TRO") at page 8 lines 11-14). bl Plaintiffs have NO Viable Lanham Act Claim 11 12 The Lanham Act is not a blanket protection mechanism for product designs and in 13 fact states that only certain aspects of a product are able to be protected by trademark for 14 the purpose of identifying and distinguishing the source of the goods. 6 See Walmart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 209 (2000). 16 17 Nevertheless, Plaintiffs' argument as to Defendants' alleged violation of the 18 Lanham Act is misplaced, and Plaintiffs rely on inapposite case law. The relief Plaintiffs 19 seek would be more appropriate in a copyright infringement case, which they cannot and have not done - despite previous direction by the State Court.? 21 Instead, Plaintiffs go to great lengths to claim that EVERYTHING, including the 22 23 II"Ballin Paris" text creates a protectable trademark by stating that the "combination of 24 "cut, color, style, fabric, stitching, label sizes, text, logo placement, font and packaging of 116 [t]he Lanham Act provides for the registration of trademarks, which it defines in 45 to include "any word, name, symbol, or device, or any combination thereof [used or intended to be used] to identify AND distinguish [a producer's] goods... from those manufactured or sold by others AND to indicate the source of the goods..." 15 U.S.C. 1127. 26 FThe Supreme Court has stated that "the producer can ordinarily obtain protection for a design that is inherently source identifying (if any such exists), but that does not yet have secondary meaning, by securing a design patent or a copyright 27 for the design." Walmart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 214 (2000) OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 14 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 18 of 31 Page ID #:1172 5 10 15 20 25 1 IIPlaintiffs' products have come to uniquely identify the products as being those of 2 IIBRIAN LICHTENBERG in the minds of the consuming public." (See Plaintiffs' TRO at II 3 14: 5-7). Interestingly, the complaint does not go this far, but Plaintiffs argument 4 FAILS for many reasons. 6 First, Plaintiffs are essentially claiming that the DESIGN of their product warrants 7 trademark protection, which the courts have referred to as a "trade dress," and "courts 8 have assumed, often without discussion, that dress constitutes a "symbol" or "device." 9 Walmart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 209 (2000). Many courts 11 I, have held that "[t]rade dress refers generally to the total image, design, and appearance 12 II ofa product and 'may include features such as size, shape, color, color combinations, 13 texture or graphics. '" Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F. 3d 1252, 1257 (9 th 14 Cir. 2001), citing Int'l Jensen, Inc. v. Metrosound U.S.A., Inc., 4F3d 819, 822 (9 th Cir. 1993). As a result, although 16 " [n]othing in 43(a) explicitly requires a producer to show that 17 its trade dress is distinctive, ...courts have universally imposed 18 that requirement, since without distinctiveness the trade dress would not "cause confusion... as to the origin, sponsorship, or 19 approval of [the] goods," ... Distinctiveness is, moreover, an explicit prerequisite for registration of trade dress under 2 of the Lanham Act and "the general principles qualifying a mark 21 for registration under 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is 22 entitled to protection under 43(a). 23 Walmart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 210, 120 S. Ct. 1339, citing 24 Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S. Ct. 2753 (1992). 26 (Emphasis Added). 27 OPPOSITION TO PLAINTIFFS' Ex PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 15 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 19 of 31 Page ID #:1173 5 10 15 20 25 1 2 i) Plaintiffs' Thade Dress Does NOT Identify the Source of the Plaintiffs' Product 3 II The first and foremost requirement that Plaintiffs fail to meet is the requirement 4 that their products identify or distinguish the source. In Knitwaves v. Lolly-togs Ltd. (Inc.), 71 F. 3d 996 (2 nd Cir. 1995), the court made clear that the "primary purpose of II 6 Knitwaves' sweater designs is aesthetic rather than source-identifying." In Knitwaves, 7 8 ~ t h e Plaintiff created a clothing line for girls containing sweaters and matching skirts and 9 IIpaints with a "fall motif' such as "leaves, acorns, squirrels" and the sweaters "employed what Knitwaves designers describe as innovative color schemes, using "fall" colors such 11 as mustards and browns, rather than the usually brighter children's tones." Ibid. at 1000 12 01. Courts have held that whether a 'design was likely to be understood as an indicator 13 14 of the product's source" requires the courts to consider several factors which include the manufacturer's subjective intentions, whether the design was a common basic shape or design, whether it was 16 unique or unusual in particular field, whether it was a mere refinement of a commonly adopted and well-known form of 17 ornamentation for a particular class of goods, and the similarity 18 of the product to others on the market. 19 "Samara Bros., Inc. v. Judy-Philippine, Inc. 969 F. Supp. 895, 898 (S.D.N.Y. 1997). In this case, Plaintiffs claim that Defendants have copied the"combination of 21 II 22 II cut, color, style, fabric, stitching, label sizes, text, logo placement, font and packaging of 23 IIPlaintiffs' products" is essentially Plaintiff claiming that Defendants copied their 24 designs, which are purely aesthetic and have NO bearing as to the SOURCE of the products. This is because Plaintiffs do not allege that any particular word or name is 26 being used to identify or distinguish their goods, nor are Plaintiffs claiming that any 27 " OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 16 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 20 of 31 Page ID #:1174 5 10 15 20 25 1 liparticular word, name, or symbol is being used to indicate the source of their goods. 8 2 "Rather, Plaintiffs assert that the design of having a plain cotton t-shirt with a catchy II 3 phrase on the front of the shirt in bold contrasting color is what they seek to have 4 Ilprotected by trademark law. Courts have also held that 6 7 [a]s a practical matter, .. .it is less common for consumers to recognize the design of a product or product feature [as 8 opposed to packaging features] as an indication of source. 9 Product designs are more likely to be seen as merely utilitarian or ornamental aspects ofthe goods. In addition, the competitive interest in copying product designs is more 11 substantial than in the case of packaging, containers, labels, and related subject matter. Product designs are therefore not 12 ordinarily considered inherently distinctive and are thus normally protected only upon proofof secondary meaning. 13 14 IIKnitwaves v. Lolly-togs Ltd. (Inc.), 71 F. 3d 996, 1008 (2 nd Cir. 1995). Thus, the cut, lIcolor, style, fabric, stitching, label sizes, text, logo placement, and font of the Plaintiffs' 16 "goods are deemed the design of the Plaintiffs' products and those clearly do NOT II 17 identify the source of the product. 18 The only part of Plaintiffs' claims which indicates the source of the product is the 19 /lpackaging, which consists of the garment label and tag. Plaintiffs provides no 21 supporting evidence that Defendants copied their label or tag and the evidence that is 22 provided by Plaintiff's actually shows that Defendant's garment label and tag is 23 materially different from Plaintiffs'. See Exhibit 47 of Brian Lichtenberg Declaration in 24 II Support of Plaintiff's Ex Parte TRO. 26[[8 Plaintiffs spend a significant amount of time in their moving papers claiming that various words,not names, are used by them in the design of their goods, which Plaintiffs claim are mainly parodies rooted in the names of famous designers or 27 vernacular. See Plaintiffs' TRO at 2:17-23, 3:1-6. OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 17 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 21 of 31 Page ID #:1175 5 10 15 20 25 1 in Plaintiffs' Trade Dress is NOT Distinctive and Does NOT Distinguish 2 Plaintiffs' Goods From Those Manufactured or Sold By Others Sellin&: "Parody" or "Spoof' Shirts. 3 Because Plaintiffs' trade dress does NOT identify the source, the court need not 4 "consider whether or not the trade dress distinctive. This is because 6 the elements making up the alleged trade dress must have been used in such a manner as to denote product source. Thus, a 7 product feature whose ONLY impact is decorative and aesthetic, with no source-identifying role, cannot be given 8 exclusive rights under trade dress law. 9 Stephen w: Boney, Inc. v. Boney Servs., Inc., 127 F,3d 821, 828 (9 th Cir. 1997). 11 IINevertheless, the facts are clear that Plaintiffs' trade dress is not distinctive in any way. 12 II To determine whether or not goods are distinctive, the courts have held that goods 13\\may be deemed distinctive in one of two ways: 14 First, a mark is inherently distinctive if '[its] intrinsic nature serves to identify a particular source'....Second, a mark has acquired distinctiveness, even if it is not inherently 16 distinctive, if it has developed secondary meaning, which occurs when, 'in the minds of the public, the primary 17 significance of a [mark] is to identify the source of the product 18 rather than the product itself. 19 "Walmart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 210-11 (2000). Here, the first test has been deemed to not apply in product design cases. Herman 21 II 22 Miller v. Palazetti Imports and Exports, 270 F, 3d 298, 309 (6 th Cir. 2001).9 23 Additionally, there is nothing inherently distinctive about the Plaintiffs' goods. 24 /I - - - = ~ = ~ ~ 9The Supreme Court noted several reasons why the inherently distinctive test should not be applied in trade dress cases Ilbased on product design. The Court noted the fact that product design "almost invariably serves purposes other than source identification," such as making products more useful or appealing... the Court also stated that application of the inherently 26 II distinctive test in product design cases could deprive consumers of 'the benefits of competition with regard to the utilitarian and esthetic purposes that product design ordinarily serves... "Herman Miller v. Palazetti Imports and Exports, 270 F. 3d 11298, 309 (6 th Cir. 200 I). Moreover, "to the extent that difficult cases exist, ...courts should err on the side of caution and 27 classify ambiguous trade dress as product design, thereby requiring secondary meaning." Ibid at 310. OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 18 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 22 of 31 Page ID #:1176 5 10 15 20 25 1 IIWhat Plaintiffs introduce into the market are t-shirts, tanks, sweatshirts and beanies that 2 "Plaintiffs purchase in bulk from a third party manufacturer. Plaintiffs then have them 3 printed or embroidered with a design including popular vernacular or parodies of famous 411 phrases or names. Plaintiffs do not create the fabric, nor do they dictate the cut of the 6 fabric or the stitching. Plaintiffs merely select from the offering of their third-party 7 manufacturer with Plaintiffs being one of many customers that the third-party 8 manufacturer provides a completed garment ready for customization. 9 Furthermore, Plaintiffs' trade dress/design is NOT unique to the market. For 11 example, Kitson, a boutique which sells pieces from Brian LichtenbergAND various 12 other designers, also carries similar t-shirts and tanks with catchy phrases or parodies of 13 famous phrases and names such as: (1) "Aint Laurent Without Yves" designed by What 14 About Yves (black shirt printed with gold foil, which parodies fashion designer Yves Saint Laurent), (2) YSL by Paislee (black tee with gold logo, which also parodies Yves 16 17 Saint Luarent), (3) Celfie (black shirt with white writing or white shirt with black 18 writing, which parodies fashion designer Celine). See Exhibit A to Declaration of 19 William Bailey in Support of Defendants Opposition to Plaintiffs TRO. The reality is that a catchy phrase or parody of a famous name or designer is a 21 22 trendy thing to do and everyone is doing it. The fact that Plaintiffs' design consists of a 23 cotton t-shirt, tank top, sweatshirt, etc. that contains a bold phrase or parody on the 24 middle of the shirt is not distinctive nor does it indicate that the goods were created by Pl' amtI 'ff s. 26 Moreover, the Plaintiffs' designs have NOT developed a secondary meaning. OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 19 OF 27 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 23 of 31 Page ID #:1177 5 10 15 20 25 1 Plaintiffs ONLY argument under secondary meaning is based on a misapplication of the 2 Clicks Billiards lO case and they misstate the rule for secondary meaning by claiming that II 3 "evidence of deliberate copying alone suffices to show secondary meaning." Rather, the 4 II court in Clicks Billiards actually stated that "in appropriate circumstances, deliberate 6 copying may suffice to support an inference of secondary meaning." Clicks Billiards at 7 1264. However, the courts have also held that 11 8 the crucial question in a case involving secondary meaning 9 always is whether the public is moved in any degree to buy an article because of its source... Factors that are relevant in determining secondary meaning include (1) advertising 11 expenditures, (2) consumer studies linking the mark to a source, (3) unsolicited media coverage of the product, (4) sales success, 12 (5) attempts to plagiarize the mark, and (6) length and exclusivity of the mark's use. 13 14 II Christian Laboutin v. Yves Saint Laurent America, 696 F. 3d 206 (2 nd Cir. 2012). Even in cases where secondary meaning MAY be found, the courts have narrowly tailored any 16 secondary meaning. Ibid. 17 In Christian Laboutin, the court found that "the secondary meaning of the mark 18 held by Laboutin extends only to the use of lacquered red outsole [of Laboutin's shoes] 19 that contrasts with the adjoining portion of the shoe." Ibid. To justify its narrowly 21 tailored finding, the court found "that Laboutin originated this particular commercial use 22 of the lacquered red color over twenty years ago....Laboutin invested substantial amounts 23 of capital building a reputation and good will, as well as promoting and protecting 24 1110 The Plaintiffs' reliance on Clicks Billiards, Inc. is not applicable in this case because the court in Clicks Billiards, Inc. only found that a trade dress FOR A BILLIARDS HALL can be inherently distinctive. The trade dress at issue here is a 26 II product-design trade dress. See Walmart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 214-215 ("the decor ofa restaurant [or even a billiards hall], seems to us not to constitute product design. It [decor of a restaurant] was either product IIpackaging- which, as we have discussed, normally is taken by the consumer to indicate origin-or else some tertium quid that 27 is akin to product packaging and has no bearing on the present case.") OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 20 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 24 of 31 Page ID #:1178 5 10 15 20 25 1 Laboutin's claim to exclusive ownership of the mark as its signature in women's high 2 fashion footwear." Ibid. 3 In this case, Plaintiffs claim to have been creating various t-shirts, tank tops, 4 sweatshirts, and beanies for approximately 5 years in various colors with various catchy 6 phrases or various parodies of famous designers. Plaintiffs' claim that ANY of their 7 products have obtained a secondary meaning is without merit: (1) Plaintiffs do not have 8 exorbitant advertising expenditures. Plaintiffs themselves admit that they have conducted 9 email campaigns with the apparently free help of Defendant CL.; (2) There are NO 11 consumer studies to show that ANY of Plaintiffs' parody t-shirts link them to Plaintiffs, 12 (this is especially enlightening considering that Plaintiff's own vendors, such as Kitson, 13 also carry similarly designed parody garments by competing designers) See Exhibit A to 14 Declaration of William Bailey in Support of Defendants Opposition to Plaintiffs TRO; (3) compared to Christian Laboutin, Plaintiff's unsolicited media coverage of the 16 17 occasional celebrity wearing his t-shirts simply pales in comparison; (4) Plaintiffs do not 18 have international sale success, and namely sell their clothing through their largest 19 distributor Kitson, a Southern California boutique with a handful of stores; (5) Plaintiffs do not have people attempting to plagiarize any particular mark, rather Plaintiff claims 21 II 22 that it is the act of using a plain shirt and placing a catchy phrase in bold letters that is 23 infringing on their rights; (6) Plaintiffs admit that they have only been creating parody t 24 shirts for 5 years and that the "Ballin Paris" design was only placed into the stream of commerce this year (with Defendants ACCL being first in time). 26 Most importantly, Plaintiffs are not asking for the court to protect any particular 27 OPPOSITION TO PLAINTIFFS I Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 21 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 25 of 31 Page ID #:1179 5 10 15 20 25 1 lI"mark" or "trade dress" that is prominent and internationally recognized, like the red 2 "sole shoes of Christian Laboutin. Rather, Plaintiffs are asking the court to protect their 3 right (and give them a monopoly) in buying pre-manufactured garments and printing 4 II catchy phrases on them with bold letters. This is certainly NOT the type of trademark 6 that has attained secondary meaning, nor is it the type of narrowly tailored secondary 7 II meaning courts have chosen to protect in any prior cases. 8 iii) THE PLAINTIFFS' PRODUCTS Do NOT DESERVE TRADEMARK PROTECTION 9 BECAUSE ANY SIMILAR TRADE DRESS IS "FUNCTIONAL". Plaintiffs' claim that Defendants copied the"combination of cut, color, style, 11 "fabric, stitching, label sizes, text, logo placement, font and packaging of Plaintiffs' 12 products" is essentially Plaintiffs claiming that Defendants should be restrained from 13 14 selling plain single-colored cotton t-shirts with printing on the front and a label affixed to lithe inside back of the shirt. EVERY aspect which Plaintiffs complain of is functional 16 Iland cannot be protected through trademark protection. 17 The U.S. Supreme Court has expressly stated that 18 [a] product feature is functional and cannot serve as a 19 trademark if the product feature is essential to the use or purpose of the article or if it affects the cost or quality of the article, that is, if exclusive of the feature would put competitors 21 at a significant non-reputation-related disadvantage. 22 "Qualitex Co v. Jacobson Prods. Co., Inc., 514 U.S. 159, 165, 115 S. Ct. 1300 (1995). In 23 particular, 24 the functionality doctrine, the Supreme Court recently explained, 'prevents trademark law, which seeks to promote 26 competition by protecting a firm's reputation, from instead inhibiting legitimate competition by allowing a producer to 27 OPPOSITION TO PLAINTIFFS' Ex PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 22 OF 27 28 I Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 26 of 31 Page ID #:1180 1 control a useful product feature...Protection of functional 2 product features is the province of patent law, not trademark law. 3 Knitwaves v. Lolly-togs Ltd. (Inc.), 71 F. 3d 996, 1006 (2 nd Cir. 1995) 4 The cut, color, fabric, and stitching of the Plaintiffs' product is functional. The 5 6 II style of a t-shirt, tank, or sweater is again functional. There are only so many ways a 7 garment can be cut and stitched together. The fabric of the product, which is a cotton 8 blend, that is pre-manufactured by a third-party and sold to numerous wholesale buyers, 9 Plaintiffs being one of the many, is again functional and not subject to protection. 10 11 iv) DEFENDANTS' GARMENT LABELS DO NOT CREATE A LIKELIHOOD OF CONSUMER CONFUSION 12 As mentioned, supra, the state court was quick to point out that there can be no 13 14 II unfair competition claim by Plaintiffs in this case because Defendants were first in time 15 lito release the Ballin Paris design. As such, any consumer confusion is a direct result of 16 II Plaintiffs, decision to release the design second in time instead of filing a lawsuit. 17 Additionally, Plaintiff's claim that a consumer seeing AC's label on a garment, 18 IIwhich clearly says "Alex & Chloe", could somehow confuse a consumer into thinking it 19 20 Ilwas actually Brian Lichtenberg garment is nonsensical. Even if the garment label is 21 placed in the same location (inside back collar), made of the same fabric, stitched in the 22 same way, and even if the colors choices and font were identical. The fact is that one 23 clearly says "Alex & Chloe" and the other clearly says "BLTEE Brian Lichtenberg". 24 2511see Exhibit 47 to Brian Lichtenberg's Declaration in Support of Plaintiff's TRO. 26 II No rational person can be confused by garment label bearing different names. 27 OPPOSITION TO PLAINTIFFS' Ex PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER PAoe 23 0' 27 28 1 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 27 of 31 Page ID #:1181 5 10 15 20 25 1 112) BECAUSE PLAINTIFFS CANNOT CONCLUSIVELY SHOW OWNERSHIP IN "BALLIN PARIS", PLAINTIFFS CLAIMS IN THEIR OTHER CAUSES OF ACTION MUST ALSO FAIL TO WARRANT 2 II INJUNCTIVE RELIEF. 3 Plaintiffs have not provided evidence to conclusively show that they were first to 4 /I create the "Ballin Paris" design. Instead, both parties claim to have created the design. 6 The only fact that is true, and which the state court was quick to point out and Plaintiffs 7 openly admit, is that Defendants did in fact release the design first AND that Plaintiffs, 8 without the help of Defendants, chose to manufacture and distribute the same exact 9 design AFTER Defendants had begun selling it. 11 Moreover, Defendants made clear and the state court acknowledged that AC had 12 Iisweatshirts manufactured with the "Ballin Paris" before CL ever began working for 13 IIPlaintiffs on January 21, 2013. 14 C) PLAINTIFFS CANNOT ESTABLISH A LIKELIHOOD OF IRREPARABLE HARM In this case, any irreparable harm Plaintiffs may be asserting occurred in the past, 16 17 Ilpresumably during the past seven months during which the state court lawsuit has been 18 1I0ngoing. Incidentally, it is also the same irreparable harm that AC is suffering. 19 From this point forward, any irreparable harm that would be inflicted on Plaintiffs is again also the same irreparable harm currently being inflicted on the Defendants. 21 II 22 II Granting a TRO would only result in increasing the amount of irreparable damages 23 lIimposed on Defendants. 24 Plaintiffs still cannot show conclusively that they own the "Ballin Paris" "trademark and preventing Defendants from using a design that they were first to design 26 and first to put out in the stream of commerce would be akin to punishing Defendants for 27 " OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 24 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 28 of 31 Page ID #:1182 5 10 15 20 25 1 Plaintiffs' intentional decision to copy Defendants' design, choose to sell a design exactly 2 like Defendants, and then Plaintiffs' calculated decision to seek damages for their 3 inability to sell a design that they chose to copy and market following AC. 4 Additionally, any claim that there is confusion in the marketplace because the 6 II Lichtenberg brothers share the last name is absurd. The ONLY reason CL's name is even 7 associated with Alex & Chloe, Inc is because of Plaintiffs' lawsuit and continuous 8 attempts to bring wildly untrue personal attacks against CL in the moving papers. 9 Plaintiffs are adding flames to their own fire. CL is a private individual and has chosen 11 to operate under the brand name Alex & Chloe. He continues to operate, advertise, and 12 package his products under the name Alex & Chloe. In fact, the crux of Plaintiffs' 13 argument is that CL is getting an awful lot of recognition for the Ballin Paris design 14 which Brian Lichtenberg was unable to steal. CL did not want any recognition for the design. All of the advertising and marketing for "Ballin Paris" show Alex & Chloe as 16 17 the creator. There is no confusion between the two brothers other then that created by 18\\Plaintiffs. 19 Finally, Plaintiffs' ability to lay claim to any irreparable harm necessarily requires Plaintiffs to be able to show that they were the owner and creator of the design in the 21 II 22 IIfirst place. Otherwise, all Plaintiff is really doing is seeking determination of their rights 23 IIBEFORE trial. 24 D) THE BALANCE OF EQUITIES DICTATES THAT DEFENDANTS' NOT BE ENJOINED For seven months now, Plaintiffs have NEVER claimed trademark infringement 26 in the state court case and they have been denied an injunction or three separate 27 " OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 25 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 29 of 31 Page ID #:1183 5 10 15 20 25 1 occasions by the state court. Now, after realizing that the state court is not going to give 2 them an injunction, they have chosen to forum-shop, change their facts, and move their 3 claims to the federal court despite the fact that the Defendants' Cross-Complaint against 411 Plaintiffs alleging the exact opposite of Plaintiffs' Federal Complaint is still ongoing. 6 Moreover, Defendants were first to create and first to release to the public the 7 "Ballin Paris" design. Plaintiffs were well aware that Defendants had already begun 8 selling the product. Yet, Plaintiffs chose to create a design EXACTLY as Defendants and 9 begin selling the product as well. Plaintiff's could have chosen to simply file a lawsuit, 11 but they didn't. Plaintiffs' actions were intentional and a calculated attack on CL and 12 should not be rewarded peremptorily. 13 E) PUBLIC INTEREST Is BEST SERVED By NOT ALLOWING DEFENDANTS TO BE ENJOINED 14 In this case, it is very apparent that the only confusion by the public is to the issue of WHO actually owns the design. The public is not confused when they buy a AC 16 17 garment thinking it is a BLTEE garment or vise versa. Each garment by both designers 18 are clearly labeled respectively. More importantly, all confusion by the public is a direct 19 result of Plaintiffs' choice to copy Defendants' design and to place the exact same design in the stream of commerce AFTER Defendants had already been selling the design. The 21 II 22 public interest is not served by enjoining Defendants. Rather, the public interest would 23 be served by enjoining Plaintiffs as the architects of any purported public confusion. 24 VI. EXPEDITED DISCOVERY IS NOT WARRANTED There is nothing special about this case that warrants expedited discovery. On 26 May 14, 2013 Plaintiffs filed an ex parte application in the State Case to expedite 27 " OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 26 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 30 of 31 Page ID #:1184 5 10 15 20 25 1 IIdiscovery; it was DENIED. Plaintiffs are now once again seeking to expedite discovery 2 II' h' + m t IS J.orum. 3 In short, Plaintiffs claim irreparable harm is occurring so they are entitled to ex 411 parte hearing for this TRO and they absolutely need expedited discovery because of this 6 irreparable harm, yet, Plaintiffs openly admit that they willfully dismissed their state 7 II court case which has been bitterly fought since March 2013. 8 If Plaintiffs are incurring irreparable harm and discovery is so urgent, why did 9 Plaintiffs not file a regularly noticed motion for a protective order and continue to 11 conduct discovery in the State Case? Why have they chosen to RE-START the process 12 Iiall over again in a totally different forum, add NEW AND CONTRADICTORY FACTS, 13 and add a gratuitous cause of action under the Lanham Act for an alleged unregistered 14 trademark which is duplicative of their unfair competition and misappropriation claims they already had asserted in the state court? The simple answer: Plaintiffs are forum 16 17 shopping AND hoping that this Court won't read their prior sworn pleadings. 18 Defendants respectfully request that Plaintiffs be denied expedited discovery, a 19 TRO, and a Preliminary Injunction. DATED: OCTOBER 21, 2013 BAILEY LAW CORPORATION 21 /S/ WILLIAM R, BAILEY 22 23 WILLIAM R. BAILEY, ArrORNEYS FOR DEFENDANTS 24 26 27 OPPOSITION TO PLAINTIFFS' Ex PARTE ApPLICATION FOR TEMPORARY RESTRAINING ORDER PAGE 27 OF 27 28 Case 2:13-cv-06837-DDP-PJW Document 35 Filed 10/21/13 Page 31 of 31 Page ID #:1185 5 10 15 20 25 1 IIWilliam R. Bailey, State Bar No. 245920 [email protected] 2 llKathleen L. T. Tubania, State Bar No. 245856 3 [email protected] BAILEY LAW CORPORATION 4 114000 MacArthur Blvd., Suite 600 liNewport Beach, CA 92660 Telephone: 714.881.5160 6 IIFacsimile: 888.737.8702 7 "Attorneys for Defendants Alex & Chloe, Inc., 8 II Christopher Walter Lichtenberg, Marked Showroom, LLC, Jaqueline Yi, Tu Tran, Kyle Mockett, and Kaytee Enright 9 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 12 Brian Lichtenberg, LLC, a California 13 II limited liability company; and Brian 14 IILichtenberg, an individual, Plaintiffs, 16 v. 17 Alex & Chloe, Inc., a California 18 II corporation, Christopher Walter Lichtenberg, an individual; Marked 19 II Showroom, LLC, a California limited IIliability company; Jacqueline Yi, an individual; Kyle Mockett, an individual; 21 II Kaytee Enright, an individual, 22 Defendants. 23 24 Case No. 2:13-CV-6837-DDP (PJWx) DECLARATION OF WILLIAM R. BAILEY IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS Ex PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER [FILED CONCURRENTLY WITH DEFENDANTS' OPPOSITION, EVIDENTIARY OBJECTIONS PLAINTIFFS' DECLARATIONS, AND REQUEST FOR JUDICIAL NOTICE] Hon. Dean D. Pregerson Date: None Set Time: None Set Place: Courtroom 3, 2 nd Floor Discovery Cut-Off: None Set Pre-Trial Conference: None Set Trial Date: None Set Action Filed: September 17, 2013 26 11----------------- DECLARATION OF WILLIAM R. BAILEY IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS Ex PARTE PAGE 1 OF 2 ApPLICATION FOR A TEMPORARY RESTRAINING ORDER 27 28 Case 2:13-cv-06837-DDP-PJW Document 35-1 Filed 10/21/13 Page 1 of 10 Page ID #:1186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 //1, William R. Bailey, hereby declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and before this Court and I am the principal attorney of the Bailey Law Corporation and we shall be the attorneys of record for Defendants Alex & Chloe, Inc., Christopher Lichtenberg, Jacqueline Yi, Marked Showroom LLC, Kyle Mockett, and Kaytee Enright. 2. I have personal knowledge of the foregoing facts and could and would testify competently thereto if called upon to do so. 3. I make this declaration in support of Defendants Opposition to Plaintiffs Ex Parte Application for a Temporary Restraining Order. 4. On October 21, 2013, I searched the internet and www.shopkitson.com and found few examples of competing designers with similar stylistic designs to those designs currently being sold by Brian Lichtenberg at Kitson and other retailers. See Exhibit A attached hereto. DATED: OCTOBER 21, 2013 BAILEY LAW CORPORATION /S/ WILLIAM R. BAILEY WILLIAM R. BAILEY, ArrORNEYS FOR DEFENDANTS DECLARATION OF WILLIAM R. BAILEY IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS Ex PARTE PAGE 2 OF 2 ApPLICATION FOR A TEMPORARY RESTRAINING ORDER Case 2:13-cv-06837-DDP-PJW Document 35-1 Filed 10/21/13 Page 2 of 10 Page ID #:1187 Case 2:13-cv-06837-DDP-PJW Document 35-1 Filed 10/21/13 Page 3 of 10 Page ID #:1188 ShopKitson.com - The Online Store For The Famous Kitson Boutique 10/21/13 12:24 PM WHAT'S NEW WOMEN SEARCH RESULTS Displaying results for yves (20 products found) MEN KIDS & BABIES
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