Opinion
01 Civ. 12742 (LAK).
April 15, 2002.
ORDER
Plaintiff is the national franchisor of the well known Mister Softee mobile ice cream truck businesses and the owner of trade dress and registered trademarks associated with those operations. These include the Mister Softee name and, as more fully described in plaintiff's papers, the design of Mister Softee trucks. It has brought this action against several defendants who allegedly operate mobile ice cream trucks in the New York City area. Based on photographs and other evidence submitted by plaintiff, at least four of them are operating trucks that are clear knock offs of plaintiff's licensed trucks.
According to affidavits submitted by plaintiff, at least four of the defendants have been served with process and are in default. Further, plaintiff on March 25, 2002 moved for a preliminary injunction against defendants Luis G. Centano, Juana M. Marrero, Ana R. Rivera and Reynaldo Betancourt and on that date served each of them by mail with the motion. Although the time for doing so has expired, none of these defendants has opposed the motion.
Service
The first issue that arises is the adequacy of service of the motion on these defendants, none of whom has appeared in the action or, as far as the court file reflects, is represented by counsel.
Plaintiff was obliged to serve the motion for a preliminary injunction on each defendant by Fed.R.Civ.P. 5(a). As defendants are unrepresented, the available methods of service include "[m]ailing a copy to the last known address of the person served." Id. 5(b)(2)(B). Such service is complete on mailing. Id.
The affidavit of service attached to the filed copy of the motion attests to service by mail on each of these defendants. The affidavit of Edwin Biondillo, plaintiff's investigator, strongly suggests that the addresses at which these defendants were served by mail are their respective last known addresses and the Court so finds. Accordingly, the motion for a preliminary injunction was duly served.
The Merits The standard for a preliminary injunction in these circumstances is well known. The movant must demonstrate a threat of irreparable injury and either (i) a likelihood of success on the merits, or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor.
Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 149 (2d Cir. 1999); Alliance Bond Fund v. Grupo Mexicano de Desarrollo, S.A., 143 F.3d 688, 696 (2d Cir. 1998), rev'd on other grounds, 527 U.S. 308 (1999).
Based on the undisputed showing made by plaintiff on this motion, it is perfectly apparent that the plaintiff has protectible trademarks and distinctive trade dress in the design of its franchised mobile ice cream trucks, that the trucks of those defendants to whom the motion is addressed are very similar to those of the plaintiff, that the products in question are identical, that the defendants adopted their designs with the obvious purpose of trading on the plaintiff's good will and that the relevant consumer group — which at least includes small children who flock to the streets in warm weather to buy ice cream from mobile vendors — is unsophisticated and extremely vulnerable to confusion. There is a strong likelihood of confusion. In short, the Court adopts as findings the factual assertions made on behalf of plaintiff in support of its trademark and trade dress infringement claims. On the basis of these findings, plaintiff has established a clear likelihood of success on the merits and a substantial risk of immediate and irreparable injury. The motion for a preliminary injunction is granted as against the four defendants named above.
In view of the foregoing, there is no need to address plaintiff's trademark dilution claim.
The foregoing constitute the Court's findings of fact and conclusions of law. Submit order no later than April 25, 2002.
SO ORDERED.