The opinion of the court was delivered by: Judge Wiley Y. Daniel
TEMPORARY RESTRAINING ORDER
THIS MATTER is before the Court on Plaintiffs' Motion for Temporary Restraining Order. A hearing was held on the motion on Wednesday, February 8, 2006. The Court, having considered the motion and the Plaintiffs' legal arguments and being fully advised in the premises, GRANTS Plaintiff's motion and issues the following Temporary Restraining Order.
1. This action arises out of a written Franchise Agreement allegedly entered into by and between Plaintiffs QFA Royalties LLC and QIP Holder LLC ("Quizno's") and Defendant Flash Mart, Inc ("FLASH MART") for operation of Quiznos Sub restaurant number 1892. Pursuant to the Franchise Agreement, FLASH MART was granted the right, subject to the terms and conditions of the Franchise Agreement, to operate a Quizno's Sub Restaurant number 1892 in Dallas, Texas. Saeed Mahboubi and Hamid Rezaie were the owners of FLASH MART and both signed a personal guaranty in which they guaranteed all of FLASH MART's obligations under the Franchise Agreement.
2. Venue is proper in the United States District Court for the District of Colorado as provided in paragraph 21.1 of the Franchise Agreement.
3. Plaintiffs allege that FLASH MART failed to comply with the lawful provisions of the Franchise Agreement and that FLASH MART failed and refused to cure its defaults; that Quizno's terminated the Franchise Agreement effective January 6, 2006, consistent with the express terms of the written Franchise Agreement; that following termination all Defendants were required, inter alia, to cease operating as a Quizno's franchisee and identifying themselves as a Quizno's franchisee with respect to Quizno's Sub restaurant number 1892, to cease using Quizno's Marks, trade secrets, trade dress, signs, symbols and trade names, to de-identify the former restaurant by removing the Quizno's Marks, trade dress, signs and symbols and to refrain from operating a competing deli-type restaurant from FLASH MART's former location or within five miles of any other Quizno's franchisee.
4. Plaintiffs further allege that notwithstanding the termination of the Franchise Agreement and Quizno's demand that each Defendant cease using Quizno's trademarks and service marks, FLASH MART and its agents continue to hold themselves out to the public as an authorized franchisee of Quizno's, passing off the restaurant as being sponsored by, affiliated with, or endorsed by Quizno's. In particular, Plaintiffs allege that FLASH MART and its agents are using the Quizno's Marks, trade secrets, trade dress, signs, symbols and trade names in connection with the operation of a competing deli-type restaurant at the same location as the former Quizno's Restaurant, and that FLASH MART and its agents are also using Quizno's confidential and proprietary information by selling to the public food using Quizno's recipes, sauces and products.
In light of the allegations made by Plaintiffs in their motion and the related declarations of persons with knowledge of the alleged facts and circumstances, I find that, if the allegations are true, Plaintiffs have established a reasonable likelihood of success on the merits of their claims for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a) and breach of contract. I further find that the injury to Plaintiffs in the form of consumer confusion and injury to the franchise name and Marks, among other things, would be irreparable. I further find that Plaintiffs have established that this threatened injury outweighs any harm the restraining order will cause the Defendants and that this restraining order is not adverse to the public interest. Therefore, I find that the following restraining order should be granted.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:
Defendants, their agents, servants and employees, and those people in active concert or participation with them are temporarily restrained from the following at the location of the former Quiznos Sub restaurant number 1892:
a. Using Quizno's Marks or any trademark, service mark, logo or trade name that is confusingly similar to Quizno's Marks;
b. Otherwise infringing Quizno's Marks or using any similar designation, alone or in combination ...