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Bikinvention 2 CC v. Squirt, LLC

United States District Court, D. Colorado

May 2, 2014

BIKINVENTION 2 CC, a South African corporation, Plaintiff,
v.
SQUIRT, LLC, a Utah limited liability company, and JOHN TUCKER, an individual, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER

CHRISTINE M. ARGUELLO, District Judge.

This matter is before the Court on Plaintiff's motion for a Temporary Restraining Order. (Doc. # 10.) For the following reasons, the Court grants the motion in part and denies it in part.

I. BACKGROUND

A. PROCEDURAL HISTORY

This case concerns a dispute about bike-chain lube. Plaintiff Bikinvention 2 CC alleges that Defendants Squirt, LLC, and John Tucker, are producing a counterfeit and inferior version of Plaintiff's "Squirt" brand of bike-chain lubricant and that Defendants plan to introduce their own lubricant brand, Enduro, in the near future. In particular, Plaintiff alleges that Defendants, who are former distributors of Squirt, are peddling their own version of bike lubricant in bottles that look nearly identical to the ones that contain real Squirt. See, e.g., (Doc. # 10-2 (showing pictures of the nearly identical real and counterfeit Squirt bottles).) While the bottles are indistinguishable, what is inside is not: as Plaintiff alleges, "[t]he counterfeit product is more yellow in color than Squirt Lube, is sticky rather than smooth like Squirt, has a lower viscosity, indicating a probability of lower wax content, and is an inferior product." (Doc. # 10, at 4 (citing affidavits from persons who have seen or used the allegedly counterfeit Squirt).)

As Plaintiffs allege, the near-identical labelling presents a problem to Plaintiff because confused bike customers who use the counterfeit product might blame Plaintiff for deficiencies that were in fact created by Defendants. Plaintiffs further allege that Defendants are intentionally trying to diminish the value of the Squirt brand as one step in a plan to introduce onto the bike-lubricant market a rival product, Enduro, that Defendants can market as a superior product to the brand they sought to sabotage. ( Id. at 4.)

Plaintiff alleges that Defendants' conduct violates, among other things, 15 U.S.C. ยง 1125(a)(1), which states in pertinent part:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.[1]

B. TEMPORARY RESTRAINING ORDER

In its motion, Plaintiff seeks a temporary restraining order to enjoin Defendants from:

(a) imitating, copying, or making any use of the "Squirt" mark or trade dress including, but not limited to, the sale of goods under the Squirt mark or trade dress, or operating websites with domain names containing the words "Squirt, " and maintaining online social media, business, or networking accounts or sites under a name containing the words "Squirt" including, but not limited to, blogs, LinkedIn, Facebook, and Twitter, or using third party payor accounts such as Amazon, PayPal, or EBay;
(b) using any unauthorized colorable imitation of the "Squirt" mark or trade dress, or any other trademark, name, or designation which, either alone or in combination, is likely to cause confusion, mistake or deception as to source, origin, sponsorship, endorsement or affiliation, in connection with the promotion, advertisement, display, sale, offering for sale, production, import, export, circulation, or distribution of any product or service in such manner as to relate or connect, or tend to relate or connect, such product or service in any way with Plaintiff Bikinvention;
(c) using any false designation of origin, false description or false representation, and from making any false representations or from engaging in any act or acts which, either alone or in combination, constitute deceptive or ...

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