Phish, Inc. v. Various John Does, Jane Does and XYZ Corporations, Civil Action No. 1:21-cv-02982-SDG (N.D. Ga. May 25, 2022)

Plaintiff Phish, Inc. filed a complaint against Various John Does, Jane Does, and XYZ Corporations for trademark infringement, unfair competition, false designation of origin, and deceptive trade practices in the Northern District of Georgia (Atlanta Division) on July 26, 2021. The Complaint alleged that Plaintiff owns at least seven federal registrations for its trademarks in the name PHISH in various international classes including clothing, posters, and more. The Complaint further alleged that individual members of the band Phish own federal trademark registrations and that Plaintiff licenses its marks only to a limited number of manufacturers and merchandisers and only to the extent that Plaintiff maintains complete control over the manner in which its name and likeness are presented. Plaintiff alleged that certain unnamed and unidentified Defendants were expected to distribute and sell counterfeit or “bootleg” merchandise portraying or containing Plaintiff’s registered marks at Phish concerts during their 2021 tour in Alpharetta (Georgia) and that, because Defendants are generally nomadic individuals without permanent businesses, Plaintiff had been unable to determine the identities of Defendants prior to filing this action. In addition to asserting claims for trademark infringement, unfair competition, false designation of origin, and deceptive trade practices, the Complaint sought a preliminary and permanent injunction prohibiting Defendants from distributing and selling merchandize bearing unauthorized copies of Plaintiff’s marks or otherwise using Plaintiff’s marks in any manner likely to cause confusion and an order permitting seizure of any unauthorized merchandise. The case was assigned to Judge Steven Grimberg.

The same day the Complaint was filed, Plaintiff filed an ex parte application for a temporary restraining order, seizure order, and order to show cause for preliminary injunction against Defendants. Specifically, Plaintiff requested that the Court issue, on an ex parte basis, a temporary restraining order and order to show cause for preliminary injunction prohibiting anonymous Defendants from manufacturing, distributing, offering for sale and selling counterfeit merchandise at Phish concert venues during its 2021 tour.

The Court held a hearing on Plaintiff’s motion for temporary restraining order on July 30, 2021. In an order dated that same day, the Court granted Plaintiff’s motion and enjoined Defendants from manufacturing, distributing, and/or selling counterfeit merchandise bearing Plaintiff’s marks. The Court also granted Plaintiff’s request for an ex parte seizure order and authorized federal agents to seize and impound any counterfeit merchandise distributed and/or sold at venues at which Phish was performing as part of its 2021 tour including in Alpharetta (Georgia) and 15 other venues and ordered Plaintiff to post bond in the amount of $10,000. The Court schedule a hearing to show cause as to why a preliminary injunction should not issue for August 13, 2021.

The Court held a hearing to show cause on August 13, 2021. No Defendants appeared and the Court granted the Plaintiff’s motion for preliminary injunction and seizure. The Court further ordered Plaintiff to amend the Complaint to identify individuals as Defendants who have been served with process pursuant to the Court’s Order. Plaintiff filed an Amended Complaint on August 18, 2021 naming five individual defendants in addition to Various John Does, Jane Does, and XYZ Corporations. Defendants never responded to the Amended Complaint.

On March 31, 2022, the Court issued an order administratively closing the case due to inactivity but permitting the case to be reopened within 60 days. On May 17, 2022, Plaintiff filed a motion for entry of an order releasing the $10,000 bond and seized goods and an order dismissing the case without prejudice, which the Court granted and entered on May 25, 2022.