ORDER DENYING PLAINTIFF'S APPLICATION FOR A TEMPORARY RESTRAINING ORDER
[Dkt. 70, 72]
DEAN D. PREGERSON, District Judge.
Presently before the court is Plaintiff WBS, Inc. ("WBS")'s Ex Parte Application for a Temporary Restraining Order. Having considered the submissions of the parties, the court denies the application and adopts the following Order.
As explained in further detail by another judge of this court, this case concerns certain trademarks originally associated with the band "Ratt." (Dkt. 69 at 2.) Plaintiff asserts that it obtained the marks in 1997 via an assignment from a partnership comprised of certain members of the band. In 2001, Pearcy filed suit against WBS in Los Angeles County Superior Court. WBS filed a cross-complaint alleging, among other things, that Pearcy infringed its RATT marks. In 2002, the state court ruled in WBS' favor on the infringement claim and enjoined Pearcy from using the RATT mark in his business or on advertisements and from selling or distributing merchandise or recordings bearing the mark absent approval from WBS or "the RATT General Partnership."
On May 19, 2016, WBS filed the operative Complaint against Defendants Stephen Pearcy, Artists Worldwide ("AWW"), and others for (1) trademark infringement, (2) conversion, (3) tortious interference with prospective economic advantage, (4) unfair competition, and (5) breach of contract. (Dkt. 2.) Concurrently with the Complaint, WBS filed an application for a temporary restraining order ("TRO") and order to show cause ("OSC") why a preliminary injunction should not issue against Defendants. Another judge of this court denied WBS's application. (Dkt. 14.)
Now, WBS again seeks a temporary restraining order against Pearcy, alleging that he intends to perform with a band called "RATT" n Minnesota on February 11, 2017. WBS further alleges that another band touring as "RATT," with WBS authorization, has had shows cancelled due to confusion as to its authenticity. WBS seeks a TRO enjoining Pearcy from using the RATT trademarks allegedly owned by WBS "to promote Pearcy or any band of which he is a member" and from using the marks on websites, merchandise, marketing materials, and from depleting any revenues Pearcy has generated from the use of the marks.
II. Legal Standard
Requests for temporary restraining orders are governed by the same general standards that govern the issuance of a preliminary injunction.
"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."
To prevail on its trademark cause of action, Plaintiff must show that (1) it has "a protectible ownership interest in the mark; and (2) that Defendants' use of the mark is likely to cause consumer confusion."
Although Plaintiff's collateral estoppel argument refers to "the legal history of the parties," the argument is unsupported by any citation to the record. (App. at 5-7.) Parties are obligated to present evidence in a manner that would allow this court to evaluate it.
Plaintiff's alternative argument regarding likelihood of success on the merits is not well developed. Plaintiff is correct that Pearcy is not entitled to use the RATT marks simply because he is an original member of the band.
Lastly, there appears to be a dispute whether Pearcy has obtained a license to use the marks. Pearcy's declaration states that he has received permission from both the RATT General Partnership and WBS to utilize the marks. (Declaration of Stephen Pearcy ¶¶ 7-9.) Plaintiff objects to Pearcy's declaration on the ground that Pearcy lacks personal knowledge. Plaintiff's objection has some merit. Although Pearcy's declaration states that the facts therein are within his personal knowledge (Pearcy Decl. ¶ 1), many of his statements, including the specific statements regarding authorization to use the marks, are made as a matter of Pearcy's "current good faith belief and understanding." (
Plaintiff has not made a clear showing that it is likely to succeed on the merits of its trademark infringement claims. The scope of Plaintiff's collateral estoppel is not sufficiently clear, nor is Plaintiff's argument supported by citations to the record. Furthermore, it is unclear whether Pearcy has obtained authorization to use the marks from the RATT Partnership, WBS, or both, and therefore has an affirmative defense to Plaintiff's infringement claims. Accordingly, Plaintiff's Application for a TRO is denied.