Free Order on Ex Parte Application - District Court of California - California

Case 3:08-cv-03514-JSW

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DALE M. CENDALI (admitted for all purposes 11/30/93) DIANA M. TORRES (SBN 162284) O'MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 [email protected] Attorneys for Plaintiffs The United States Olympic Committee and the International Olympic Committee UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

The United States Olympic Committee and the International Olympic Committee, Plaintiffs, v. Xclusive Leisure & Hospitality Ltd.; Beijingticketing.com; 20080lympics.com; Beijingolympic2008tickets.com; Beijingolympictickets2008.com; Olympic-tickets.net; Olympicticketsbeijing2008.com; Does 1-10, inclusive, Defendants.

Case No. C 08-03514 JSW [PROPOSED] ORDER GRANTING MOTION FOR RECONSIDERATION; OR, IN THE ALTERNATIVE, [PROPOSED] ORDER GRANTING RENEWED MOTION FOR TEMPORARY RESTRAINING ORDER AND EXPEDITED DISCOVERY

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ORDER GRANTING TRO, EXPEDITED DISCOVERY AND OSC

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[PROPOSED] ORDER Plaintiffs, the United States Olympic Committee and the International Olympic Committee, having moved ex parte for a Motion for Reconsideration of the Court's denial on July 25, 2008, of their Ex Parte Motion for Temporary Restraining Order or, in the alternative, having renewed their Motion for Temporary Restraining Order and Expedited Discovery, and the Court having reviewed Plaintiffs' First Amended Complaint, filed on or about July 29, 2008, Plaintiffs' Ex Parte Application, the memorandum of points and authorities and declarations filed in support thereof, the Court finds that there is GOOD CAUSE appearing to ___ GRANT Plaintiffs' Ex Parte Motion for Reconsideration OR
X ___ GRANT Plaintiffs' Renewed Ex Parte Motion for Temporary

Restraining Order, and finds as follows: 1. Plaintiffs have established that this Court has:
X ___ personal jurisdiction over Defendant XLH;

___ personal jurisdiction over the Doe Defendants that operate X the websites and use the domain names at issue here; ___ in rem jurisdiction over the domain name Defendants Beijingticketing.com; 2008-0lympics.com; Beijingolympic2008tickets.com; Beijingolympictickets2008.com; Olympic-tickets.net; and Olympicticketsbeijing2008.com 2. Plaintiffs have met their burden of demonstrating that they are

likely to succeed on the merits of their claims against Defendants; 3. There is a reasonable inference that unless enjoined, Defendants

will continue to use Plaintiffs' trademarks deceptively to market and solicit sales of tickets to the 2008 Olympic Games in Beijing;
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ORDER GRANTING TRO, EXPEDITED DISCOVERY AND OSC

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4.

Defendants have caused and, if permitted to continue such

conduct unrestrained, Defendants will likely continue to cause, irreparable damage and harm to Plaintiffs; 5. The harm to Plaintiffs if a Temporary Restraining Order is not

granted far outweighs any harm that Defendants may suffer if it is granted; 6. The relief Plaintiffs request is in the public interest. TEMPORARY RESTRAINING ORDER PURSUANT TO PLAINTIFFS' MOTION FOR
RESTRAINING ORDER RENEWED MOTION FOR TEMPORARY

RECONSIDERATION, IT IS HEREBY ORDERED that, pending a hearing on a preliminary injunction, Defendants and all persons and/or entities acting on their behalf, for their benefit or in active concert or participation with them are HEREBY TEMPORARILY RESTRAINED as follows:
1.

They shall not display (1) the word mark OLYMPIC, U.S.

Trademark Registration Nos. 968,566, 2,311,493 and 2,777,890; (2) the word mark BEIJING 2008, U.S. Trademark Registration Nos. 2,739,492 and 2,764,102; or (3) the official emblem of the Beijing 2008 Olympic Games, U.S. Trademark Registration No. 3,043,229, or any part or variation thereof (the "Olympic Marks"), or any terms that are confusingly similar thereto, on the Websites or any other website;
2.

They shall not directly or indirectly infringe the Olympic Marks

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in any manner including, but not limited to, by using them in advertising or offering for sale any tickets or other goods or services using said trademarks;
3.

They shall not engage in any conduct that tends falsely or

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misleadingly to represent that the actions of Defendants, the tickets sold by Defendants, or Defendants themselves are connected with Plaintiffs or organizations guided by the Olympic Charter, including the IOC, the USOC, the international sports federations, and the other National Olympic Committees,
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ORDER GRANTING TRO, EXPEDITED DISCOVERY AND OSC

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Organizing Committees of the Olympic Games and local clubs and the persons belonging to them (the "Olympic Movement"), are sponsored, approved, or licensed by Plaintiffs or the Olympic Movement, or are in some way connected or affiliated with Plaintiffs or the Olympic Movement, or that is likely to confuse, mislead, or deceive members of the public, into believing same;
4.

They shall not affix, apply, annex, or use in connection with

tickets or any other goods or services, a false description or representation, including words or other symbols, tending to falsely describe or represent such goods or services as being those of Plaintiffs;
5.

They shall not otherwise compete unfairly with Plaintiffs in any

manner;
6.

The following domain names shall be impounded, such that

eNom, Inc. and VeriSign, Inc., or any other entity having authority and control over the domain names are hereby directed to immediately disable the aforementioned domain names via a registrar or registry hold or other procedure, and deliver a certificate attesting thereto, so that neither Defendants nor the consuming public can gain access thereto: http://beijingticketing.com; http://www.beijingolympic2008tickets.com; http://www.olympic-tickets.net; http://www.beijingolympictickets2008.com; http://www.2008-0lympics.com; http://www.olympicticketsbeijing2008.com; and http://www.buy-olympictickets.co.uk;
7.

Defendants shall not use, and shall forfeit so long as this Order

is in effect, any and all domain names that incorporate or utilize in any way any of the Olympic Marks or any terms similar thereto, including but not limited to: http://beijingticketing.com; http://www.beijingolympic2008tickets.com; http://www.olympic-tickets.net; http://www.beijingolympictickets2008.com; http://www.2008-0lympics.com; http://www.olympicticketsbeijing2008.com; and http://www.buy-olympic-tickets.co.uk;
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ORDER GRANTING TRO, EXPEDITED DISCOVERY AND OSC

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8.

Defendants shall no longer continue to operate the following

Websites under the current domain names or under any other domain name: http://beijingticketing.com; http://www.beijingolympic2008tickets.com; http://www.olympic-tickets.net; http://www.beijingolympictickets2008.com; http://www.2008-0lympics.com; http://www.olympicticketsbeijing2008.com; and http://www.buy-olympic-tickets.co.uk; and
9.

They shall not effect assignments or transfers, form new entities

or associations or utilize any other means or device for the purpose of circumventing or otherwise avoiding prohibitions set forth herein.
IN THE ALTERNATIVE, UNDER DEFENDANTS' RENEWED MOTION FOR TEMPORARY RESTRAINING ORDER, IT IS ORDERED THAT:
1.

The domain name Defendants shall be impounded, such that

eNom, Inc. and VeriSign, Inc., or any other entity having authority and control over the domain names http://beijingticketing.com; http://www.beijingolympic2008tickets.com; http://www.olympic-tickets.net; http://www.beijingolympictickets2008.com; http://www.2008-0lympics.com; and http://www.olympicticketsbeijing2008.com, are hereby directed to immediately disable the aforementioned domain names via a registrar or registry hold or other procedure, and deliver a certificate attesting thereto, so that neither Defendants nor the consuming public can gain access thereto. IT IS FURTHER ORDERED that the Temporary Restraining Order shall remain in effect until a ruling is issued on a preliminary injunction pursuant to the Order to Show Cause. ORDER TO SHOW CAUSE
1. August 13 IT IS FURTHER ORDERED that on ________________,

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2008, at 9:00 a.m. in Courtroom ___ of the above-captioned Court located at 450 ______, 2 Golden Gate Avenue, San Francisco, California, 94102, Defendants are
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ORDER GRANTING TRO, EXPEDITED DISCOVERY AND OSC

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ORDERED appear at a hearing as to why a preliminary injunction should not issue against them as follows under the same terms and conditions as set forth in the
any opposition to the request for preliminary injunction by 3:30 a.m. on August 7, 2008. Plaintiffs

temporary restraining order set forth above and issued herewith. Defendants shall submit [PROPOSED] ORDER GRANTING EXPEDITED DISCOVERY Good cause appearing therefore, Plaintiffs motion for an order expediting

4 may file a reply, if any, by no later than 3:30 p.m. on August 11, 2008. 5 6 7 8 9 10 11 12 13 14 15 16 17
August 4

discovery in conjunction with its Motion for Temporary Restraining Order against Defendants is granted. Therefore, it is hereby ordered:
1.

Plaintiffs may conduct discovery directed to ServePath and

eNom, Inc., whom Plaintiffs believe are likely to have information regarding Defendants' identities and contact information, including the identities of those working with or for Defendant Xclusive Leisure & Hospitality, Ltd. Plaintiffs may conduct such discovery to obtain the names, addresses, email address and telephone numbers of Defendants and any other information likely to lead to the discovery of the identity of Defendants. IT IS SO ORDERED.

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Dated:

July _____, 2008 By: United States District Court Judge

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ORDER GRANTING TRO, EXPEDITED DISCOVERY AND OSC