Global Merchandising Services, Ltd., Motley Crue, Inc., Merch Traffic, LLC, and Bludgeon Riffola Ltd. v. Various John Does, Jane Does, and ABC Companies, Civil Action No. 1:22-cv-02242-WMR (N.D. Ga. June 6, 2022)
On June 6, 2022, Plaintiffs Global Merchandising Services, Ltd., Motley Crue, Inc., Merch Traffic, LLC, and Bludgeon Riffola Ltd. filed suit against various John Does, Jane Does, and ABC Companies in the Northern District of Georgia (Atlanta Division) for trademark infringement. Plaintiff Motley Crue is a musical performer who has used the MOTLEY CRUE trademark to identify itself since at least as early as 1980. Plaintiff Bludgeon Riffola Ltd., also known as Def Leppard, has been using the DEF LEPPARD trademark to identify itself since as early as 1980. Plaintiff Global has been granted the exclusive right to market merchandise (e.g., clothing) bearing the MOTLEY CRUE trademark at concert venues throughout the United States. Plaintiff Merch Traffic has been granted the exclusive right to use the DEF LEPPARD mark on merchandise (e.g., clothing) at concerts throughout the United States. Defendants John Does, Jane Does, and ABC Companies are residents of or transact business within Georgia but whose identities are presently unknown. The Complaint alleges that Defendants have conspired to manufacture and distribute counterfeit merchandise bearing the MOTLEY CRUE and DEF LEPPARD marks. Specifically, the Complaint alleges that “it can be stated with certainty” that Defendants “have and will attempt to sell imitation and inferior Bootleg Merchandise” bearing the MOTLEY CRUE and DEF LEPPARD marks outside Truist Park on June 16, 2022 and at other Motley Crue/Def Leppard venues during Motley Crue/Def Leppard’s concert tour. The Complaint alleges that Defendants’ unauthorized distribution of counterfeit merchandise will cause irreparable harm and injury to Plaintiffs and cause confusion as to the source of the counterfeit merchandise. The Complaint asserts causes of action for infringement of the MOTLEY CRUE and DEF LEPPARD trademarks in violation of 15 U.S.C. 1125(a) and false designation of origin in violation of 15 U.S.C. 1114.
On June 9, 2022, Plaintiffs moved for an ex parte temporary restraining order (“TRO”) and order directing seizure of counterfeit merchandise bearing the MOTLEY CRUE and DEF LEPPARD trademarks distributed by Defendants at Motley Crue and Def Leppard at Trust Park in Atlanta on June 16, 2022. In their Motion, Plaintiffs argue that (1) they are the owner of valid trademarks, (2) consumers are likely to be confused as to the source of the infringing and counterfeit merchandise, (3) Plaintiffs will suffer irreparable harm unless Defendants are immediately enjoined, (4) the balance of harms favors the Plaintiffs, and (5) the issuance of a TRO and seizure order is necessary to protect the public interest. The case has been assigned to Judge William M. Ray, II.
On June 13, 2022, Judge Ray granted Plaintiffs’ June 9th motion and issued a TRO, seizure order, and order to show cause for preliminary injunction. The Court held that Plaintiffs were (1) likely to succeed on the merits of their trademark infringement and counterfeit claims, (2) that the harm to Plaintiffs from denial of a TRO would outweigh the harm to Defendants’ legitimate interests if TRO was granted, (3) irreparable and immediate harm to Plaintiffs would be caused if Defendants were allowed to continue manufacturing, importing, distributing, and offering for sale and/or sale of counterfeit merchandise, and (4) Defendants, in the absence of a TRO, would likely destroy, move, hide or otherwise make inaccessible to the Court the Defendants’ counterfeit merchandise, as well as related business records and profits, which would effectively deny Plaintiffs access to relevant evidence and frustrate the ultimate relief Plaintiffs seek. While Plaintiffs sought the Court to restrain the unknown Defendants from manufacturing, distributing, and selling their counterfeit merchandise within a five-mile radius of all the concert venues on the present MOTLEY CRUE/DEF LEPPARD concert tour, the Court noted the “extraordinary” nature of injunctive relief and the possibility that individuals who may be affected by the injunction may not have a meaningful opportunity to appear before the Court to contest the Court’s order. In light of these considerations, the Court ultimately issued a TRO prohibiting the Defendants from manufacturing, distributing, and selling their counterfeit merchandise at the concert venue located in the Northern District of Georgia (i.e., MOTLEY CRUE/DEF LEPPARD’s June 16, 2022 concert at Atlanta’s Truist Park) and similarly limited the seizure order. Finally, Judge Ray simultaneously calendared the “show cause” hearing for June 28, 2022.
On June 22, 2022, Plaintiffs filed an ex parte motion to dismiss the action without prejudice, stating that no Defendants were served or observed at the Motley Crue/Def Lepard concert in Truist Park due to “inclement weather and the delay in the start time of the concert which was caused by the inclement weather.” Plaintiff also requested return of the $15,000 bond posted based on the TRO and seizure order. The Court granted Plaintiff’s motion and returned the $15,000 bond in an order dated June 23, 2022.