Case 3:07-cv-02016-IEG-AJB
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
STEVEN SCHUSSLER and SCHUSSLER CREATIVE, INC., Plaintiffs, vs. J. FRANK WEBSTER, aka "MR. HOT DOG," aka "UNCLE FRANK," Defendants.
Case No. 07CV2016IEG AJB TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION
Plaintiffs STEVEN SCHUSSLER and SCHUSSLER CREATIVE, INC., A Minnesota Corporation, ("SCHUSSLER") are before this court with their Application For Temporary Restraining Order And Notice Of Motion And Motion For A Preliminary Injunction against Defendant J. FRANK WEBSTER, aka "MR. HOT DOG," aka "UNCLE FRANK" ("WEBSTER"). The court having
considered the Application and the supporting points and authorities and declarations on file with the court, and being otherwise advised, FINDS that: 1. SCHUSSLER CREATIVE, INC. is the owner of U.S.
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Case 3:07-cv-02016-IEG-AJB
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Trademark Applications Serial Nos. 78/591560 for the "Hot Dog Hall Of Fame" trademark for restaurant services, retail store, and wholesale distributorship services; 2. Defendant WEBSTER has engaged and is continuing
to engage in tortious acts interfering with the efforts of SCHUSSLER to open restaurants under the name "Hot Dog Hall Of Fame" in cities such as Sparks, Nevada and Kansas City, Missouri; 3. Defendant WEBSTER has contacted SCHUSSLER's
business partners, its prospective business associates, and municipal officials, accusing SCHUSSLER of infringing on his alleged rights to the use of the name "Hot Dog Hall Of Fame" and defaming plaintiff STEVEN SCHUSSLER's character and accusing him of attempting to steal the concept and name of HOT DOG HALL OF FAME from him; 4. Absent a court order, Defendant's conduct will
likely continue; 5. Plaintiffs have demonstrated a likelihood of
success on the merits in this action; 6. There is a likelihood of irreparable injury to
plaintiffs if this Order is not entered; 7. 8. The balance of hardships favors Plaintiffs; and Public policy favors the injunction.
IT IS THEREFORE ORDERED that plaintiffs' Application for Temporary Restraining Order is GRANTED and defendant WEBSTER and his officers, agents, employees, independent contractors, or other persons acting under his supervision
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or control or at their request are temporarily enjoined from: 1. Sending e-mails, letters, or other correspondence to current or prospective business associates of plaintiffs, or making verbal statements to such persons, or posting materials on a website, which state or imply that plaintiffs have stolen, misappropriated, or infringed upon intellectual property allegedly belonging to defendant relating to the Hot Dog Hall Of Fame; and 2. Sending e-mails, letters, or other correspondence to any person, business, corporation, city, municipality, or any representative of a city or municipality, or making verbal statements to such persons, which state or imply that plaintiffs have stolen, misappropriated, or infringed upon intellectual property allegedly belonging to defendant relating to the Hot Dog Hall Of Fame. IT IS FURTHER ORDERED that Defendant shall take affirmative steps to ensure that all of his officers, agents, members, employees, independent contractors, or other persons acting under his supervision and control or at their request receive a copy of this temporary restraining order and are appropriately advised as to its terms and conditions, and shall file an advice or certification of counsel or other appropriate notice with the court confirming that this has been completed by November 7, 2007.
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IT IS FURTHER ORDERED that Defendants shall not delete or destroy any evidence, including but not limited to computer reproduced or saved data, or any other form of evidence pertaining to defendant's contacts with plaintiffs' business partners, prospective business partners, or municipal officials dealing with plaintiffs' efforts to open HOT DOG HALL OF FAME restaurants. IT IS FURTHER ORDERED that this order shall become effective on plaintiffs' posting of security in the amount of $5,000.00 pursuant to Rule 65(c), Fed.R.Civ.P. IT IS FURTHER ORDERED that this Order shall expire on November 15, at 5:00 p.m., unless the Order, for good cause shown, is extended, or unless the parties consent to the Order being extended for a longer period. IT IS FURTHER ORDERED that Defendant WEBSTER appear before this Court on the 13th day of November, 2007, at 10:30 a.m. and show cause why a preliminary injunction should not issue extending during the pendency of this action the temporary orders set forth above. Defendant
Webster shall file a response on or before November 7, 2007. IT IS FURTHER ORDERED that Plaintiffs will provide a copy of this Order to defendant WEBSTER as soon as possible but not later than November 1, 2007. DATED: October 31, 2007 IRMA E. GONZALEZ, Chief Judge United States District Court
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