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Cerveceria Modelo S.A. de C.V. v. Cuvee

August 23, 2002

CERVECERIA MODELO, S.A. DE C.V. AND CERVECERIA DEL PACIFICO, S.A. DE C.V., PLAINTIFFS,
v.
BRUT CUVEE ET AL., DEFENDANTS.



Document No. 2

The opinion of the court was delivered by: Ricardo M. Urbina United States District Court Judge

TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

The court has considered the Complaint, the supporting declarations, exhibits, evidence and points and authorities submitted in support of Cerveceria Modelo, S.A. de C.V.'s and Cerveceria del Pacifico, S.A. de C.V.'s ("the plaintiffs") Application for a Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction ("TRO Application"), and the plaintiffs' affidavits regarding service on the defendants. Determining that the defendants have had notice of the pending TRO Application and an opportunity to respond, and concluding that the plaintiffs have met the legal requirements for obtaining a temporary retraining order ("TRO") in this matter, the court grants the plaintiffs' motion.

The court finds that the defendants, specifically defendant Jay Hudnall, received service and actual notice of the plaintiff's Complaint, TRO Application, and the court's August 13, 2002 Order on or before the morning of August 16, 2002. FED. R. CIV. PROC. 4(e)(2); Pl.'s Aff. filed on Aug. 16, 2002. The August 13, 2002 Order required the defendants to respond to the TRO Application by August 15, 2002. Because the defendants did not receive notice of this Order until August 16, out of an abundance of caution, the court issued an additional Order requiring the defendants to respond within 24 hours of service of the Order. Order dated Aug. 20, 2002. At 9:28 a.m. on August 22, 2002, defendant Hudnall received service and actual notice of this court's August 20, 2002 Order. FED. R. CIV. PROC. 4(e)(2); Pl.'s Second Aff. filed on Aug. 22, 2002. Accordingly, the defendants' response was due by 9:28 a.m. today, August 23, 2002.

The court's August 20, 2002 Order warned the defendants that the court would treat the TRO Application as conceded if the defendants failed to respond by the deadline. Cf. LCvR 7.1(b). The time is now _______ on August 23, 2002, the defendants have failed to respond, and thus the plaintiff's TRO Application is conceded.

For the court to issue an injunction, the movant must demonstrate a likelihood of success on the merits, irreparable harm, that the injunction would not substantially injure other interested parties, and that the public interest is served by the injunction. Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)); Appleseed Foundation, Inc. v. Apleseed Institute, Inc., 981 F. Supp. 672, 674 (D.D.C. 1997) (citing Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977); Sears, Roebuck and Co. v. Sears Financial Network, Inc., 576 F. Supp. 857, 864 (D.D.C.1983)). The court determines that the plaintiffs have provided facts and law that satisfy each of these four factors. *fn1

The plaintiffs' complaint alleges a number of claims against the defendants. Compl. at 12-18. Regarding the plaintiffs' likelihood of success on the merits, the strong likelihood that the plaintiff will succeed on the trademark infringement and unfair competition claim is sufficient for the injunction analysis. Appleseed, 981 F. Supp. at 674-76; TRO Application 21-26. For this claim, the plaintiffs have established irreparable harm because trademark infringement raises a presumption of irreparable harm. Sears, Roebuck and Co., 576 F. Supp. at 864. The court also determines that damage to the defendants would most likely be financially inconsequential, but potential damage may be adequately indemnified by the filing of a $1000 bond. FED. R. CIV. PROC. 65(c). Consequently, the court concludes that this is a proper case for issuance of an Order to Show Cause and a Temporary Restraining Order.

THEREFORE, IT IS HEREBY ORDERED that, with respect to the following:

a. Cerveceria Modelo, S.A. de C.V.'s Copyright in the images contained in the Internet site Corona.com (hereinafter "Modelo's Copyright"); b. Federal trademark registrations:

-No. 1,681,365 for "CORONA EXTRA Stylized" (first use and first use in commerce March 27, 1969) for beer in International Class 32;

-No. 1,681,366 for "CORONA Stylized" (first use August 28, 1925 and first use in commerce August 25, 1943) for beer in International Class 32;

-No. 1,689,218 for "CORONA and Crown and Griffins Design" (first use and first use in commerce March 27, 1969) for beer in International Class 32;

-No. 1,727,969 for "CORONA LIGHT and Crown and Griffins Design" (first use and first use in commerce May 5, 1989) for beer in International Class 32;

-No. 1,729,694 for "CORONA EXTRA LAS CERVEZA MAS FINA and Crown and Griffins Design" (first use and first use in commerce March 27, 1969) for beer in International Class 32;

-No. 1,729,701 for "CORONITA EXTRA" (first use and first use in commerce February 15, 1991) for beer in International Class 32;

-No. 1,761,605 for "CORONITA EXTRA and Crown and Griffins Design" (first use and first use in commerce February 15, 1991) for beer in International Class 32;

-No. 2,406,232 for "CORONA LIGHT" (first use and first use in commerce July, 1999) for beer in International Class 32;

-No. 2,452,813 for "CORONA MUSIC" (first use and first use in commerce July, 1999) for use in providing information on-line in International Class 41;

-No. 2,489,708 for "CORONA EXTRA and Crown and Griffins Design" (first use and first use in commerce April 1, 1980) for clothing in International Class 25;

-No. 2,489,709 for "CORONA" (first use and first use in commerce April 1, 1980) for clothing in International Class 25;

-No. 2,489,710 for "CORONA" (first use and first use in commerce April 1, 1980) for clothing in International Class 25;

-No. 2,489,711 for "CORONA EXTRA" (first use and first use in commerce April 1, 1980) for clothing in International Class 25;

-No. 2,517,268 for "CORONA DECOR" (first use and first use in commerce November, 1996) for use in providing mail order catalog and on-line retail order services in International Class 35;

-No. 2,522,430 for "CORONA DECOR" (first use and first use in commerce November, 1996) for use in providing mail order catalog and on-line retail order services in International Class 35;

-No. 2,590,621 for "CORONA" (first use and first use in commerce November 6, 1997) for use in providing on-line services in International Classes 35 and 41;

-No. 2,600,236 for "CORONA EXTRA" (first use and first use in commerce November 6, 1997) for use in providing on-line services in International Classes 35 and 41;

-No. 1,022,817 for AMODELO" (first use and first use in commerce August 7, 1973) for beer in International Class 32;

-No. 1,055,321 for AMODELO ESPECIAL" (based on Mexican Registration No. 126,929, dated November 10, 1965) for ...


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