Opinion
CIVIL ACTION NO: 04-1593, SECTION: "S" (2).
January 4, 2008
ORDER
The plaintiffs have filed a motion for a Temporary Restraining Order, Seizure Order, and Civil Contempt Sanctions, enjoining and restraining the defendants, Smack Apparel Company and Wayne Curtiss, and those acting in concert with them from manufacturing, distributing, advertising, selling, or offering for sale any of the T-shirt designs included in the Appendix to the plaintiffs' motion (the new designs).
After considering the motion, arguments of counsel, declarations and affidavits, exhibits, and witness testimony, the court finds as follows:
1. The court has jurisdiction over the parties and over the subject matter of this dispute because the court retained jurisdiction to enforce the permanent injunction issued in February 2007 (docket # 246);
2. In material respects, the new designs are similar to the six designs that the court found to be infringing in its July 18, 2006, summary judgment order (docket #169), which are the subject of the permanent injunction;
3. Plaintiffs have established by clear and convincing evidence that the defendants failed to comply with the terms of the permanent injunction by manufacturing, advertising, and offering for sale the new designs;
4. Plaintiffs are likely to succeed in showing that the defendants, and those acting in concert or participation with them, have infringed upon plaintiffs' trademark rights by manufacturing, distributing, offering for sale, and selling T-shirts bearing the new designs without having obtained a license or any other authorization to do so;
5. Defendants, and those acting in concert or participation with them, will continue to sell such unauthorized T-shirt designs unless enjoined by the court; and
6. Plaintiffs will continue to suffer irreparable harm unless a temporary restraining order and seizure order are issued.
IT IS HEREBY ORDERED that the defendants and all agents, officers, employees, representatives, successors, assigns, attorneys, and all other persons acting for, with, by, through, or under authority from defendants or in concert or participation with defendants or any of them individually are ENJOINED AND RESTRAINED from manufacturing, distributing, advertising, selling, or offering for sale any of the new deigns or any other designs that are similar to the designs previously enjoined.
IT IS FURTHER ORDERED that the United States Marshal for any district in which plaintiffs seek to enforce this order, upon advancing such sum as is required to cover fees and expenses; local law enforcement officials, state police, and other law enforcement authorities; or plaintiffs' counsel, representatives, or individuals acting under their respective authorization or supervision are authorized to seize and impound any and all products bearing any of the new designs which any person is attempting to sell or is offering or holding for sale in or around New Orleans, Louisiana (the site of the BCS Nation Championship Game between Louisiana State University and Ohio State University), Baton Rouge, Louisiana (location of LSU), or Columbus, Ohio (location of OSU), including any carton, bag, container, or other means of carriage in which the T-shirts are transported or stored.
IT IS FURTHER ORDERED that all products heretofore or hereafter seized in this action be delivered up to plaintiffs, plaintiffs' counsel, authorized representatives, or designees, pending final disposition of this action.
IT IS FURTHER ORDERED that this order is conditioned upon personal service of a copy of this order being made upon the person or persons enjoined hereby contemporaneously with the seizure authorized herein.
IT IS FURTHER ORDERED that the injunctive and seizure provisions of this order shall expire ten days from the date of this order, unless otherwise extended by further order of this court.
IT IS FURTHER ORDERED that this order is conditioned upon the plaintiffs posting a bond in the amount of $100,000.
This order does not address the plaintiffs' motion for contempt sanctions, attorney's fees, and costs, which will be addressed at the time of a trial on the merits.