Cause No. 2017-04658 Nfl Properties Llc, Atlanta

1/24/2017 10:54:17 AM Chris Daniel - District Clerk Harris County Envelope No. 14902156 By: bradley darnell Filed: 1/24/2017 10:54:17 AM CAUSE NO. 2017-04658 NFL PROPERTIES LLC, ATLANTA § IN THE DISTRICT COURT OF FALCONS FOOTBALL CLUB, LLC, and § NEW ENGLAND PATRIOTS LLC, § § Plaintiffs, § § v. § HARRIS COUNTY, TEXAS § DOES 1 THROUGH 100, INCLUSIVE, § § Defendants. § § 234TH JUDICIAL DISTRICT PLAINTIFFS’ VERIFIED APPLICATION FOR EX PARTE TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION, ORDER OF SEIZURE, WRIT OF SEQUESTRATION, AND EXPEDITED DISCOVERY TO THE HONORABLE JUDGE OF SAID COURT: Pursuant to the Texas Rules of Civil Procedure 680, et seq. and 696, et seq., the Texas Civil Practice and Remedies Code §§ 62.001, et seq., the Texas Trademark Act (TEX. BUS. & COM. CODE §§ 16.001, et seq.), Texas trademark common law, and the equitable powers of this Court, NFL Properties LLC (“NFLP”), Atlanta Falcons Football Club, LLC (the “Atlanta Falcons”), and New England Patriots LLC (the “New England Patriots”) (collectively, “Plaintiffs”) hereby file this Verified Application for Ex Parte Temporary Restraining Order, Temporary Injunction, Order of Seizure, Writ of Sequestration, and Expedited Discovery (the “Application”). Plaintiffs’ Verified Original Petition and the affidavits filed concurrently herewith demonstrate that Plaintiffs have no adequate remedy at law and stand in danger of irreparable injury in the form of, inter alia, injury to reputation caused by sales of unauthorized merchandise (“Counterfeit Merchandise”) and unlicensed, unredeemable tickets (“Counterfeit Tickets”) bearing Plaintiffs’ trademarks, infringement and misappropriation or conversion of their 16088001_4 -1- trademarks, dilution by blurring and by tarnishment of the uniqueness and uniformity of their trademarks, and reduced sales of licensed merchandise and tickets at the time of the Super Bowl LI game in Harris County, Texas, unless this Court enjoins Defendants’ manufacturing and sale of Counterfeit Merchandise and Counterfeit Tickets and authorizes the seizure of the Counterfeit Merchandise and Counterfeit Tickets. Plaintiffs’ Verified Original Petition, Memorandum in Support of Application for Ex Parte Temporary Restraining Order, Temporary Injunction, Order of Seizure, Writ of Sequestration, and Expedited Discovery, and the accompanying affidavits demonstrate that Plaintiffs have a substantial likelihood of success on the merits of their claims. The public interest also supports the issuance of a Temporary Restraining Order, an Order of Seizure, and a Writ of Sequestration. Plaintiff NFLP is a wholly-owned subsidiary of NFL Ventures, L.P., which is a limited partnership organized and existing under the law of the State of Delaware. NFLP owns all of the NFL’s trademarks, names, logos, symbols, slogans, designs, and other identifying marks and indicia (both registered and unregistered) and is responsible for licensing and protecting the same. Additionally, Plaintiff NFLP is the authorized representative of the NFL’s 32 member clubs (the “Member Clubs”) with respect to the licensing and protection of their trademarks, names, logos, symbols, slogans, designs, and other identifying marks and indicia. The Atlanta Falcons and the New England Patriots own all of their trademarks, names, logos, symbols, designs, and other identifying marks and indicia (both registered and unregistered). Plaintiff NFLP is the owner of, has adopted, and has used in commerce federal trademark registrations and state trademarks registered with the Texas Secretary of State’s Office and/or APPLICATION -2- registered with the United States Patent and Trademark Office (“USPTO”) related to the NFL’s activities for a wide variety of products, including “NATIONAL FOOTBALL LEAGUE,” “NFL,” “SUPER BOWL,” the LI design, the HTX design, “SUPER SUNDAY,” “AMERICAN FOOTBALL CONFERENCE,” “AFC,” “NATIONAL FOOTBALL CONFERENCE,” “NFC,” “VINCE LOMBARDI TROPHY,” “NFL EXPERIENCE,” “BACK TO FOOTBALL,” “TOGETHER WE MAKE FOOTBALL,” “NFL NETWORK,” “NFL ON LOCATION,” “NFL SHOP,” “NFL TICKET EXCHANGE,” “ON FIELD,” “PRO BOWL,” “SUNDAY NIGHT FOOTBALL,” “MONDAY NIGHT FOOTBALL,” “THURSDAY NIGHT FOOTBALL,” “TASTE OF THE NFL,” the Super Bowl LI design, the NFL Shield design (including current and prior versions), the AFC design (including current and prior versions), the NFC design (including current and prior versions), the AFC Champion Trophy Design, the NFC Champion Trophy Design, the Back to Football design, the NFL NETWORK Design, and the Vince Lombardi Memorial Trophy design, among others. True and correct copies of the Certificates of Registration for the marks registered with the Texas Secretary of State’s Office and/or USPTO are attached hereto as Exhibit 1 and incorporated herein for all purposes. The Atlanta Falcons and the New England Patriots have adopted and used in commerce certain of their marks and have registered those marks with the Texas Secretary of State’s Office and/or USPTO, including “ATLANTA FALCONS,” “FALCONS,” “FALCONS LANDING,” “RISE UP,” “THE GULCH,” the Stylized ATL design, the Stylized Falcon design, the Atlanta Falcons home and away uniform designs, the Atlanta Falcons helmet logo, “NEW ENGLAND PATRIOTS,” “PATRIOTS,” “PATS,” “DO YOUR JOB,” “DO YOUR JOB!,” “WE ARE ALL PATRIOTS,” “THE PATRIOT WAY,” “NEXT GAME UP,” “BOSTON PATRIOTS,” “BELESTRATOR,” the Patriots Player design known as “the Player,” the Stylized NE design, APPLICATION -3- the Stylized Patriot Head, the helmet logos of the New England Patriots, and the home and away uniform designs of the New England Patriots. True and correct copies of the Certificates of Registration for the marks registered by the Atlanta Falcons and the New England Patriots with the Texas Secretary of State’s Office and/or USPTO are attached hereto as Exhibit 2 and incorporated herein for all purposes. All of the common law trademark rights and the statutory trademark registrations of the NFL, the Atlanta Falcons, and the New England Patriots as set forth herein are referred to collectively as the “NFL Trademarks.” To meet the public demand for merchandise relating to each year’s Super Bowl game, Plaintiff NFLP annually develops and licenses specific, unique Super Bowl graphic design logos for use in connection with the production and sale of licensed merchandise relating to the Super Bowl game. See Table 1. Table 1. Representative images of the Super Bowl LI design logos. NFLP has licensed approximately 95 companies to produce high-quality merchandise specifically relating to the Super Bowl LI game, including apparel such as t-shirts, garments, and hats and souvenir items such as pennants, novelty items, and games, among many other products. Photographs of representative samples of licensed Super Bowl LI game products are attached hereto as Exhibit 3 and incorporated herein for all purposes. NFLP works closely with licensees APPLICATION -4- and many retail outlets to assure that sufficient quantities of Super Bowl game-related licensed merchandise are available to the public. This merchandise is currently available for purchase on many eCommerce sites, at numerous retail outlets in Harris County, and at and in the vicinity of NRG Stadium and numerous Super Bowl LI-related events in this district during the time leading up to and following the Super Bowl events on and around February 5, 2017, the day of the Super Bowl LI game. Recent investigations by law enforcement authorities and investigative representatives of NFLP have revealed intentional, knowing, wanton and reckless production, distribution, offering for sale, and sale of significant quantities of Counterfeit Merchandise and Counterfeit Tickets by Defendants by and through vendors at the playoff and conference championship games, who have indicated that they intend to continue to sell Counterfeit Merchandise and Counterfeit Tickets. Photographs of representative samples of Counterfeit Merchandise purchased during this year’s playoff season and at last years’ Super Bowl game in Santa Clara, California, are attached hereto as Exhibit 4 and incorporated herein for all purposes. Notice to Defendants of the request for the Temporary Restraining Order and Writ of Sequestration requested herein should not be required because, as a practical matter, it cannot be given. As the accompanying affidavits demonstrate, most of the vendors and manufacturers of Counterfeit Merchandise and Counterfeit Tickets are itinerant and have no business identity before or after the Super Bowl week and cannot be identified, located, or notified of the request for the Temporary Restraining Order and Writ of Sequestration. It is anticipated that the Defendants, if given notice of these proceedings, will immediately dispose of the Counterfeit Merchandise and Counterfeit Tickets, destroy records, avoid process, change the names under which they do business, or move their unauthorized activities elsewhere. APPLICATION -5- Execution of the Order of Seizure, the Writ of Sequestration, and the Temporary Restraining Order is necessary to immediately remove the Counterfeit Merchandise and Tickets from the marketplace. Otherwise, Defendants—who are itinerant vendors and manufacturers— may escape service and prevent Plaintiffs from removing the infringing merchandise and tickets, thereby frustrating and destroying Plaintiffs’ right to relief. There is immediate danger that Defendants will conceal, dispose of, ill-treat, waste, or destroy the property currently in their possession. Upon information and belief, Plaintiffs

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