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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 1:15-cv-01656-JAM-EPG Document 3 Filed 11/02/15 Page 1 of 2 1 DANIEL R. FOSTER (Cal. Bar. No. 179753) McDERMOTT WILL & EMERY LLP 2 4 Park Plaza, Suite 1700 Irvine, CA 92614-2559 3 Telephone: (949) 757-7103 Facsimile: (949) 851-9348 4 [email protected] 5 JOHN J. DABNEY (to file pro hac vice application) KATIE BUKRINSKY (to file pro hac vice 6 application) McDERMOTT WILL & EMERY LLP 7 500 North Capitol Street NW Washington, D.C. 20001 8 Telephone: (202) 756-8000 Facsimile: (202) 756-8087 9 [email protected], [email protected] 10 Attorneys for Plaintiff The Brooklyn Brewery Corporation 11 LLP MERY 12 AW E L UNITED STATES DISTRICT COURT T & A 13 EASTERN DISTRICT OF CALIFORNIA ILL ILL RVINE I W FRESNO DIVISION TTORNEYS A 14 ERMOTT D THE BROOKLYN BREWERY CASE NO. C 15 M CORPORATION, a New York 16 Corporation, PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR PRELIMINARY 17 Plaintiff, INJUNCTION 18 v. DATE: 19 BLACK OPS BREWING, INC., a California Corporation, TIME: 20 DEPT.: Defendant. 21 22 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: 23 PLEASE TAKE NOTICE that on the earliest day when it may be heard, at 24 the United States District Court, Eastern District of California, 2500 Tulare St 25 #1501, Fresno, CA 93721, Plaintiff The Brooklyn Brewery Corporation will and 26 hereby does move the Court for a preliminary injunction. 27 Plaintiff respectfully requests a preliminary injunction enjoining Defendant 28 Notice of Motion and Motion for Preliminary Injunction - 1 - Case 1:15-cv-01656-JAM-EPG Document 3 Filed 11/02/15 Page 2 of 2 1 from using its infringing marks, BLACK OPS BREWING, BLACK OPS, and 2 blackopsbrewing.com, as these marks infringe Plaintiff’s federally-registered and 3 common law rights in the marks BROOKLYN BLACK OPS and BLACK OPS. 4 This motion shall be based on this notice of motion and motion, the 5 memorandum of points and authorities in support, the declarations and evidence 6 filed concurrently herewith, and upon any further matters the Court deems 7 appropriate. 8 Pursuant to Local Rule 231(d)(3), Plaintiff does not desire to present oral 9 testimony at the hearing, and estimates the hearing will last approximately one 10 hour. 11 LLP Respectfully submitted, MERY 12 AW E L T & A 13 ILL ILL RVINE I W McDERMOTT WILL & EMERY LLP TTORNEYS A 14 ERMOTT D C 15 Dated: November 2, 2015 By: /s/ Daniel R. Foster_____________________ M 16 DANIEL R. FOSTER (Cal. Bar. No. 179753) McDERMOTT WILL & EMERY LLP 17 4 Park Plaza, Suite 1700 Irvine, CA 92614-2559 18 Telephone: (949) 757-7103 Facsimile: (949) 851-9348 19 [email protected] 20 McDERMOTT WILL & EMERY LLP John J. Dabney (to apply for admission pro hac vice) 21 Katie Bukrinsky (to apply for admission pro hac vice) McDERMOTT WILL & EMERY LLP 22 500 North Capitol Street NW Washington, D.C. 20005 23 Telephone: (202) 756-8000 Facsimile: (202) 756-8087 24 [email protected]; [email protected] 25 Attorneys for Plaintiff The Brooklyn Brewery Corporation 26 27 28 Notice of Motion and Motion for Preliminary Injunction - 2 - Case 1:15-cv-01656-JAM-EPG Document 3-1 Filed 11/02/15 Page 1 of 33 1 DANIEL R. FOSTER (Cal. Bar. No. 179753) McDERMOTT WILL & EMERY LLP 2 4 Park Plaza, Suite 1700 Irvine, CA 92614-2559 3 Telephone: (949) 757-7103 Facsimile: (949) 851-9348 4 [email protected] 5 JOHN J. DABNEY (to file pro hac vice application) 6 KATIE BUKRINSKY (to file pro hac vice application) 7 McDERMOTT WILL & EMERY LLP 500 North Capitol Street NW 8 Washington, D.C. 20001 Telephone: (202) 756-8000 9 Facsimile: (202) 756-8087 10 [email protected], [email protected] 11 Attorneys for Plaintiff The Brooklyn Brewery LLP Corporation MERY 12 AW E L T & A UNITED STATES DISTRICT COURT 13 ILL ILL RVINE I W EASTERN DISTRICT OF CALIFORNIA TTORNEYS A 14 FRESNO DIVISION ERMOTT D C 15 THE BROOKLYN BREWERY M 16 CORPORATION, a New York Corporation, CASE NO. 17 Plaintiff, MEMORANDUM OF POINTS AND 18 AUTHORITIES IN SUPPORT OF 19 v. PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 20 BLACK OPS BREWING, INC., a California Corporation, DATE: 21 TIME: DEPT.: 22 Defendant. 23 24 25 26 27 28 Memorandum of Points and Authorities ISO Motion for Preliminary Injunction Case 1:15-cv-01656-JAM-EPG Document 3-1 Filed 11/02/15 Page 2 of 33 1 TABLE OF CONTENTS 2 Page 3 INTRODUCTION .................................................................................................... 1 4 FACTUAL BACKGROUND ................................................................................... 2 5 A. Plaintiff and its BROOKLYN BLACK OPS and BLACK OPS Marks .............................................................................................................. 2 6 B. Defendant and its BLACK OPS BREWING and BLACK OPS 7 Marks .............................................................................................................. 5 8 LEGAL STANDARD .............................................................................................. 7 9 LEGAL ARGUMENT .............................................................................................. 8 10 I. Plaintiff Is Likely To Succeed On its Claims ............................................. 8 11 LLP A. Plaintiff Owns Valid Marks for BROOKLYN BLACK OPS 12 MERY and BLACK OPS ........................................................................ 9 AW E L T & A 13 B. Defendant’s Marks Cause a Likelihood of Confusion with ILL ILL RVINE I W Plaintiff’s Marks ........................................................................... 10 TTORNEYS A 14 ERMOTT 1) The Parties’ Marks are Substantially Identical .................. 10 D C 15 M 2) The Parties’ Goods are Identical ......................................... 14 16 3) The Parties’ Trade Channels Overlap ................................. 15 17 4) Plaintiff’s Mark is Strong .................................................... 16 18 5) Beer Consumers Do Not Exercise a High Degree of 19 Care ................................................................................ 18 20 6) Defendant’s Use of BLACK OPS Is In Bad Faith .............. 19 21 7) The Actual Confusion Factor is Neutral ............................. 20 8) The Likelihood of Expansion Factor is Neutral ................. 21 22 II. Defendant’s Trademark Infringement Irreparably Injures Plaintiff ....... 21 23 III. The Balance of Hardships Weights Heavily in Favor of Plaintiff ......... 24 24 IV. Entry of a Preliminary Injunction Serves the Public Interest ................ 25 25 V. No Bond or a Nominal Bond Will Suffice ............................................. 25 26 CONCLUSION ....................................................................................................... 26 27 28 Memorandum of Points and Authorities ISO Motion for Preliminary Injunction - i - Case 1:15-cv-01656-JAM-EPG Document 3-1 Filed 11/02/15 Page 3 of 33 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 A. Smith Bowman Distillery, Inc. v. Schenley Distillers, Inc., 5 198 F. Supp. 822 (D. Del. 1961) ............................................................ 10, 13, 19 6 Academy of Motion Picture Arts & Sciences v. Creative House Promos., Inc., 7 944 F.2d 1446 (9th Cir. 1991) ...................................................................... 19, 20 8 Aktiebolaget Electrolux v. Armatron Int'l, Inc., 9 999 F.2d 1 (1st Cir. 1993) .................................................................................. 12 10 Alliance for the Wild Rockies v. Cottrell, 11 632 F.3d 1127 (9th Cir. 2011) .............................................................................. 8 LLP 12 MERY AW E AMF, Inc. v. Sleekcraft Boats, L T & A 13 599 F.2d 341 (9th Cir.1979) ......................................................................... 15, 19 ILL ILL RVINE I W TTORNEYS A 14 Anheuser-Busch, Inc. v. Caught-on-Bleu, Inc., ERMOTT 288 F. Supp. 2d 105 (D.N.H. 2003) aff'd, 105 Fed. Appx. 285 (1st D C 15 M Cir. 2004) ................................................................................................ 14, 15, 16 16 Boldface Licensing + Branding v. By Lee Tillett, Inc., 17 940 F. Supp. 2d 1178 (C.D. Cal. 2013), appeal dismissed (Aug. 14, 18 2013) ............................................................................................................ passim 19 Brookfield Commun., Inc. v. W. Coast Ent. Corp., 174 F.3d 1036 (9th Cir. 1999) ..................................................................... passim 20 21 Cadence Design Systems v. Avant! Corp., 125 F.3d 824 (9th Cir. 1997) .............................................................................. 24 22 23 Cent. 21 Real Est. LLC v. Ramrom Enters., 1:14-CV-00788-AWI, 2014 WL 3615790 (E.D. Cal. July 22, 2014) ................ 22 24 CytoSport, Inc. v. Vital Pharm., Inc., 25 617 F. Supp. 2d 1051 (E.D. Cal. 2009) aff'd, 348 Fed. Appx. 288 26 (9th Cir. 2009) ............................................................................................. passim 27 DS Waters of Am., Inc. v. Princess Abita Water, L.L.C., 28 539 F. Supp. 2d 853 (E.D. La. 2008) ................................................................. 12 Memorandum of Points and Authorities -ii- ISO Motion for Preliminary Injunction Case 1:15-cv-01656-JAM-EPG Document 3-1 Filed 11/02/15 Page 4 of 33 1 E. & J. Gallo Winery v. Gallo Cattle Co., 2 967 F.2d 1280 (9th Cir. 1992) ................................................................ 10, 11, 18 3 Edge Wireless, LLC v. U.S. Cellular Corp., 312 F. Supp. 2d 1325 (D. Or. 2003) ................................................................... 12 4 5 Electropix Inc. v. Liberty Livewire Corp., 178 F. Supp. 2d
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