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Live Nation Merchandise, Inc. v. Does

United States District Court, D. Colorado

June 5, 2019

LIVE NATION MERCHANDISE, INC., Plaintiff,
v.
JOHN DOES 1-100, JANE DOES 1-100, and XYZ COMPANY, Defendants.

          TEMPORARY RESTRAINING ORDER, SEIZURE ORDER, AND ORDER TO SHOW CAUSE REGARDING WHY A PRELIMINARY INJUNCTION AND SEIZURE ORDER SHOULD NOT ISSUE

          RAYMOND P. MOORE United States District Judge.

         Based upon the complaint, memorandum of points and authorities, declaration of Dar Jenkins, certificate of counsel, all other pleadings, and good cause being shown, Plaintiff's ex parte application (ECF No. 2) is granted to the extent stated below. The Court hereby

         ORDERS that Defendants, their true identities being unknown, show cause before the Honorable Raymond P. Moore, United States District Court Judge, in Courtroom A601 of the United States District Court for the District of Colorado, located at 90119th Street, Denver, Colorado, at 2:00 p.m. on Wednesday, June 19, 2019, or as soon thereafter as counsel can be heard, why an order pursuant to Fed.R.Civ.P. 65, the Lanham Act, 15 U.S.C. § 1051, and the All Writs Act, 28 U.S.C. § 1651, should not be entered granting Plaintiff a preliminary injunction and order of seizure to enjoin Defendants from manufacturing, distributing, selling, or holding for sale, any clothing, jewelry, photographs, posters, and other merchandise (collectively, the “Infringing Merchandise”) and to seize the same bearing the federally registered trademarks, service marks, likenesses, logos, or other indicia of the Group known as “NEW KIDS ON THE BLOCK” (collectively, the “Group's Trademarks”).

         AND IT APPEARING TO THE COURT that Defendants are about to sell and distribute the Infringing Merchandise bearing the Group's Trademarks as set forth in Plaintiff's complaint and declaration, and will continue to carry out such acts unless restrained by order of the Court;

         AND IT APPEARING TO THE COURT that immediate and irreparable injury, loss, or damage will result to Plaintiff before Defendants can be identified and given notice and their attorneys can be heard in opposition to the granting of the temporary restraining order, in that Defendants are preparing to manufacture, distribute, and sell Infringing Merchandise in Denver, Colorado, as set forth in Plaintiff's complaint, and that, unless Defendants are enjoined from said manufacture, distribution, and sale, Plaintiff will suffer immediate and irreparable injury and harm in the form of a loss of income, lessening and dilution of the value of the Group's Trademarks, interference with Plaintiff's ability to exploit, market, and license its merchandising rights, confusion in the marketplace as to the duly authorized source of merchandise depicting the Group's Trademarks, and impairment of the goodwill Plaintiff and its licensees have in the Group's Trademarks. The Court further

         ORDERS that pending hearing and determination of this application, or the expiration of fourteen (14) days from the date hereof, Defendants, their agents, servants, employees, attorneys, successors, and assigns and all persons, firms, and corporations acting in concert with them, and each of them, are hereby temporarily restrained from manufacturing, distributing, and selling within the District of Colorado any and all Infringing Merchandise bearing any or all of the Group's Trademarks; and with respect to such Defendants and their agents, and each of them, who shall manufacture, distribute, or sell Infringing Merchandise within the District of Colorado (hereinafter, the “Colorado Defendants”), they shall additionally be temporarily restrained from manufacturing, distributing, and selling Infringing Merchandise elsewhere in the United States;

         ORDERS that pursuant to 15 U.S.C. § 1116(a), the United States Marshal for this District or any district in which Plaintiff enforces this Order, the state and local police, local deputy sheriffs, off duty officers of the same, and any person acting under their supervision are hereby authorized to seize and impound any and all Infringing Merchandise bearing any or all of the Group's Trademarks (including “NEW KIDS ON THE BLOCK” or “NKOTB”) which the Colorado Defendants attempt to sell or are holding for sale, including any from any carton, container, vehicle, or other means of carriage in which the Infringing Merchandise is found from four (4) hours before to four (4) hours after any performance of the Group's tour within a four (4) mile vicinity of the halls, stadiums, or arenas at which said tour shall be performing, including but not limited to the Pepsi Center in Denver, Colorado on June 7, 2019. The Court further

         ORDERS that this order is conditioned upon Plaintiff's filing with the Clerk of this Court an undertaking in the form of a bond, certified check, bank check, or cash in the amount of $5, 000 no later than Thursday, June 6, 2019, to secure the payment of such costs and damages not to exceed such sum as may be suffered or sustained by any party who is found to be wrongfully restrained hereby;

         ORDERS that this order is conditioned upon the Plaintiff's advancing to the law enforcement officers such sum as is required by the same to cover the fees for their said services, in the event Plaintiff seeks their services in this or any other district;

         ORDERS that service of a copy of this order to show cause together with the complaint be made upon the Colorado Defendants by the United States Marshal, state or local police, local deputy sheriffs, off duty officers, or any person over the age of eighteen (18) years under their supervision, not a party to this action selected for that purpose by Plaintiff, at the time the seizure provided herein is effected and that such service shall be deemed good and sufficient;

         ORDERS that the process server shall offer a receipt to each person from whom Infringing Merchandise is seized and that Plaintiff shall be deemed substitute custodian for all Infringing Merchandise seized;

         ORDERS that each and every Colorado Defendant served with a copy of this order promptly, courteously, and peaceably identify himself or herself to the aforementioned process server and that the process server or agents for Plaintiff be allowed to photograph, videotape, or otherwise identify the Colorado Defendant;

         ORDERS that the Colorado Defendants' responsive papers, if any, shall be filed with the Clerk of this Court and served upon the attorneys for Plaintiff by delivering copies to its counsel on or before Friday, June 7, 2019. Any reply shall be filed by Plaintiff and served upon each appearing Colorado Defendant or his or her counsel on or before Monday, June 10, 2019. Plaintiff is to provide copies of all other filed pleadings at the request of any identified Colorado Defendant; and

         ORDERS that pursuant to Fed.R.Civ.P. 65(b)(4), any Colorado Defendant can apply to this Court to modify or dissolve this Order on two (2) days' notice or shorter notice as this Court may allow, but no such application shall serve to ...


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