UPTIME ENERGY INC. v. UP ENERGY DRINKS LLC

Case No. 2:17-cv-04396-JFW-JC.

UPTIME ENERGY INC., Plaintiff, v. UP ENERGY DRINKS LLC, CHRISTIAN GUZMAN, MAX V. CLEMONS, and TREY J. STEIGER, Defendants. UP ENERGY DRINKS, LLC, CHRISTIAN GUZMAN, MAX V. CLEMONS, and TREY STEIGER, Counterclaimants, v. UPTIME ENERGY INC., Counterdefendant.

United States District Court, C.D. California, Western Division.

December 5, 2017.

Editors Note
Applicable Law: 15 U.S.C. § 1114
Cause: 15 U.S.C. § 1114 Trademark Infringement
Nature of Suit: 840 Trademark
Source: PACER


Attorney(s) appearing for the Case

Uptime Sports Nutrition Inc., Plaintiff, represented by Jennifer Lee Taylor , Morrison & Foerster.

Uptime Energy Inc., Plaintiff, represented by Kathiana Aurelien , Morrison and Foerster LLP, Sabrina Larson , Morrison and Foerster LLP & Jennifer Lee Taylor , Morrison & Foerster.

Up Energy Drink LLC, Defendant, represented by Joseph S. Leventhal , Dinsmore and Shohl LLP & Joshua M. Heinlein , Dinsmore and Shohl LLP.

Christian Guzman, Defendant, represented by Joseph S. Leventhal , Dinsmore and Shohl LLP.

Max V Clemons, Defendant, represented by Joseph S. Leventhal , Dinsmore and Shohl LLP & Joshua M. Heinlein , Dinsmore and Shohl LLP.

Trey J. Steiger, Defendant, represented by Joseph S. Leventhal , Dinsmore and Shohl LLP & Joshua M. Heinlein , Dinsmore and Shohl LLP.

Christian Guzman, Counter Claimant, represented by Joseph S. Leventhal , Dinsmore and Shohl LLP.

Up Energy Drink LLC, Counter Claimant, represented by Joseph S. Leventhal , Dinsmore and Shohl LLP & Joshua M. Heinlein , Dinsmore and Shohl LLP.

Max V Clemons, Counter Claimant, represented by Joseph S. Leventhal , Dinsmore and Shohl LLP & Joshua M. Heinlein , Dinsmore and Shohl LLP.

Uptime Energy Inc., Counter Defendant, represented by Kathiana Aurelien , Morrison and Foerster LLP, Sabrina Larson , Morrison and Foerster LLP & Jennifer Lee Taylor , Morrison & Foerster.


PLAINTIFF UPTIME ENERGY INC.'S PRELIMINARY INJUNCTION ORDER

NOTE: CHANGES MADE BY THE COURT

Pursuant to the Court's November 16, 2017 Order, Plaintiff Uptime Energy Inc. hereby Case 2:17-cv-04396-JFW-JC Document 56 Filed 12/05/17 Page 2 of 3 Page ID #:932 submits this [Proposed] Preliminary Injunction Order.

IT IS HEREBY ORDERED THAT:

(1) Plaintiff's Motion for Preliminary Injunction is denied in part and granted in part. The Court denies Plaintiff's motion to enjoin Defendants from using UP as a trademark for an energy drink for the reasons set forth in the Court's Order of November 16, 2017 and grants the motion with respect to the UPTIME Trade Dress and any trade dress that is confusingly similar to the UPTIME Trade Dress. The Court orders Plaintiff to submit a bond of $50,000 within two days of entry of this Order

IT IS FURTHER ORDERED THAT:

> (2) Until the conclusion of a trial in this litigation or further order of the Court, Defendants, their partners, officers, directors, employees, agents, and representatives, and all persons, firms and corporations in active concert or participation with any of them, are immediately enjoined from using in any manner the UPTIME Trade Dress, defined as (1) a black or white background with minimal text; (2) a centered logo with an upward pointing arrow; (3) a screw top; and (4) a round bottle with a "shoulder" that is relatively high with a very slight curve to meet the neck, or any trade dress that is confusingly similar to the UPTIME Trade Dress, including, but not limited to:

(a) The white bottle that Defendants used for their UP energy drinks starting in or about May 2017; (b) The UP trademark with any predominantly white or black bottle; (c) Any advertisements or other promotional materials featuring any trade dress that is confusingly similar to the UPTIME Trade Dress, such as the bottles specifically identified in points (2)(a) and (b) above, including but not limited to displays on websites and posts on mobile applications or social media; and (d) Any YouTube or other online videos featuring any trade dress that is confusingly similar to the UPTIME Trade Dress, such as the bottles specifically identified in points (2)(a) and (b) above.

(3) Until the conclusion of a trial in this litigation or further order of the Court, Case 2:17-cv-04396-JFW-JC Document 56 Filed 12/05/17 Page 3 of 3 Page ID #:933 Defendants, their partners, officers, directors, employees, agents, and representatives, and all persons, firms and corporations in active concert or participation with any of them are further ordered to immediately remove or delete from any website or social media account that any of them control, including postings on third-party mobile applications such as Instagram, all postings that include a photograph, drawing, or other depiction of the white bottle that Defendants used for their UP energy drinks starting in or about May 2017 or bottle that is confusingly similar to the UPTIME Trade Dress, such as the bottles specifically identified in points (2)(a) and (b) above.

(4) Until the conclusion of a trial in this litigation or further order of the Court, Defendants, their partners, officers, directors, employees, agents, and representatives, and all persons, firms and corporations in active concert or participation with any of them are further ordered to immediately remove any YouTube or other online videos that any of them posted that include a photograph, drawing, or other depiction of the white bottle that Defendants used for their UP energy drinks starting in or about May 2017 or bottle that is confusingly similar to the UPTIME Trade Dress, such as the bottles specifically identified in points (2)(a) and (b) above.

(5) Defendants are directed to file with this Court and serve upon Plaintiff within thirty (30) days after entry of this Order a single report in writing under oath setting forth in detail the manner and form in which Defendants have complied with the injunction, as set forth above.

IT IS SO ORDERED.


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