Free Memorandum in Support - District Court of California - California

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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. Does 1-10, inclusive, Defendants.

Case No. PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER AND EXPEDITED DISCOVERY

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TABLE OF CONTENTS I. II. Page PRELIMINARY STATEMENT..................................................................... 1 STATEMENT OF FACTS.............................................................................. 2 A. The Plaintiffs' Valuable Rights ............................................................ 2 B. Authorized Tickets to the Beijing 2008 Olympic Games..................... 4 C. The Defendants' Unlawful Conduct ..................................................... 5 D. Defendants Are Offering to Sell Tickets They Cannot Legitimately Transfer and Likely Do Not Possess ............................... 6 E. Defendants' Efforts to Conceal Their Identities ................................... 8 PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS ............................................................................................. 9 A. Defendants Are Engaging in Unfair Business Practices....................... 9 B. The Olympic and Amateur Sports Act Grants Exclusive Use of the Olympic Marks to the USOC........................................................ 10 C. The Lanham Act Precludes Defendants' Fraudulent and Infringing Conduct.............................................................................. 11 1. Defendants' Conduct Constitutes Infringement Under the Lanham Act .............................................................................. 11 D. Defendants' Conduct Constitutes False Endorsement and False Advertising.......................................................................................... 16 E. By Using Plaintiffs' Trademarks in Their Domain Names, Defendants Are in Violation of the Anti-Cybersquatting Protection Act ..................................................................................... 18 PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE COURT DOES NOT GRANT THE REQUESTED RELIEF ...................... 19 A. Plaintiffs Can Show Irreparable Harm................................................ 19 1. The Balance of Hardships Favors Plaintiffs, and There Are Fair Grounds for Litigation................................................ 21 2. The Harm to Plaintiffs Far Outweighs Any Possible Harm to Defendants ............................................................................ 21 3. The Public Interest Favors an Injunction.................................. 22 PLAINTIFFS' REQUEST FOR EXPEDITED DISCOVERY SHOULD BE GRANTED ............................................................................ 23 A. Expedited Discovery Is Warranted Under the Federal Rules of Civil Procedure ................................................................................... 23 B. Expedited Discovery Is Warranted Under This Court's Local Rules.................................................................................................... 24

III.

IV.

V.

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TABLE OF AUTHORITIES Page CASES AMF, Inc. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) ............................................................13, 14, 15, 16 Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521 (9th Cir. 1984) ..................................................................14, 19, 21 Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) ............................................................................. 22 Apple Inc. v. Podfitness, Inc., 2008 U.S. Dist. LEXIS 45241 (N.D. Ca. 2008)................................................. 13 Au-Tomotive Gold, Inc. v. Volkswagon of Am., Inc., 457 F.3d 1062 (9th Cir. 2006) ...................................................................... 12, 13 Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999) ..........................................................13, 14, 15, 22 California Independent System Operator Corp. v. Reliant Energy Services, Inc., 181 F. Supp. 2d 1111 (E.D. Cal. 2001) ........................................ 9 Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Ca. 1999) ........................................................................ 24 Concrete Mach. Co., Inc. v. Classic Lawn Ornaments, 843 F.2d 600 (1st Cir. 1988) .............................................................................. 22 Dr. Seuss Enters., L.P. v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997) ............................................................................ 15 Eclipse Associates, Ltd. v. Data General Corp., 894 F.2d 1114 (9th Cir. 1990) ...................................................................... 15, 16 Gillespie v. Doe, 629 F.2d 637 (9th Cir. 1980) .............................................................................. 24 GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199 (9th Cir. 2000) ......................................................9, 13, 14, 19, 21 Johnson v. Connolly, 2007 U.S. Dist. LEXIS 31721 (N.D. Ca. Apr. 18, 2007).............................18, 19 K and N Engineering, Inc. v. Bulat, 259 Fed. Appx. 994 (9th Cir. 2007) ................................................................... 12 My-T Fine Corp. v. Samuels, 69 F.2d 76 (2d Cir. 1934) ................................................................................... 21 Newsguy, Inc. v. Yomtobian, 2006 U.S. Dist. LEXIS 93197 (N.D. Ca. Dec. 20, 2006) .................................. 15 People v. Toomey, 157 Cal. App. 3d 1, 203 Cal. Rptr. 642 (1984) .................................................. 10 Pepsico, Inc. v. Plank, 2002 U.S. Dist. LEXIS 14378 (C.D. Ca. Jul. 18, 2002) .................................... 18 Podolsky v. First Healthcare Corp., 50 Cal App. 4th 632, 58 Cal. Rptr. 2d 89 (1996) ............................................... 10
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TABLE OF AUTHORITIES Page San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (1987) ........................................................................................... 11 Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273 (N.D. Ca. 2002) ........................................................................ 23 Sigma Dynamics, Inc. v. E. Piphany, Inc., 2004 U.S. Dist. LEXIS 24161 (N.D. Ca. 2004)................................................. 17 Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981) .............................................................................. 17 U.S.O.C. v. Intelicense Corp., 737 F.2d 263 (2d Cir. 1984) ............................................................................... 10 UMG Recordings, Inc. v. Does, 2006 U.S. Dist. LEXIS 32821 (N.D. Ca. 2006)................................................. 23 V.E.W., Ltd. v. Karla Hour Couture, 1997 U.S. Dist. LEXIS 22742 (N.D. Ca. Dec. 16, 1997) .................................. 22 Wendt v. Host Int'l, 125 F.3d 806 (9th Cir. 1997) .............................................................................. 17 White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992) ............................................................................ 17 STATUTES 15 U.S.C. § 1114...................................................................................................... 12 15 U.S.C. § 1115...................................................................................................... 13 15 U.S.C. § 1125(a)(1)(A)....................................................................................... 17 15 U.S.C. § 1125(a)(1)(B) ....................................................................................... 17 15 U.S.C. § 1125(d)(1)(A)....................................................................................... 18 36 U.S.C. § 220506......................................................................................10, 11, 18 36 U.S.C. § 220506(a) ............................................................................................. 11 36 U.S.C. § 220506(a)(4) .......................................................................................... 3 36 U.S.C. § 220506(c) ............................................................................................... 3 36 U.S.C. § 220506(c)(3) .......................................................................................... 3 36 U.S.C. § 220506(c)(4) .................................................................................... 3, 11 Cal. Bus. & Prof. Code § 17200 et seq................................................................ 9, 10 Cal. Bus. & Prof. Code § 17500 et seq.................................................................... 10 Lanham Act § 32(1)...........................................................................................12, 16 OTHER AUTHORITIES Fed. Pre-trial Civ. P. CA 23.159............................................................................. 24

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TABLE OF AUTHORITIES Page RULES Fed. R. Civ. P. 26(d) ................................................................................................ 23 Fed. R. Civ. P. 45..................................................................................................... 23

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Plaintiffs, the International Olympic Committee ("IOC") and the United States Olympic Committee ("USOC"), submit this memorandum of law in support of their motion for a temporary restraining order to prevent Defendants from continuing to deceive the public by using Plaintiffs' trademarks on seven Websites ("XLH Websites") in order to solicit purchases of tickets to the 2008 Olympic Games that they likely will not actually provide. Plaintiffs also seek expedited discovery to ascertain the truthful identity of those who operate these fraudulent sites. I. PRELIMINARY STATEMENT All across the globe, excitement is building as the world's top athletes prepare to compete in the 2008 Beijing Olympic Games, a ritual that has been a part of modern culture since 1896. Defendants, who have gone to great lengths to conceal their identities, seek to take advantage of that building excitement in the Olympic Games, as well as the prestige associated with the IOC and USOC, to deceive the public and tarnish Plaintiffs' reputation. Such conduct must be enjoined. Defendants operate a series of Websites that prominently display Plaintiffs' valid and protectable trademarks, as well as other indicia of the Olympic Games, in order to mislead the public into believing that the sites are "official" Olympic sites and thus are somehow affiliated with or sponsored by the USOC and IOC. Under this guise, Defendants use the Websites to advertise tickets to the upcoming Olympic games, offering tickets at prices of anywhere from $100 to over $2,000. Defendants, however, are advertising tickets that they do not have and/or are not providing to individuals who use Defendants' Websites to place ticket orders. Thus, Defendants' activity not only causes harm to the IOC and USOC, it also greatly harms the public as well. Defendants should not be permitted to continue this scheme. They must be enjoined from deceptively purporting to sell Olympic tickets by making use of
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Plaintiffs' trademarks. II. STATEMENT OF FACTS A. The Plaintiffs' Valuable Rights

The USOC is the National Olympic Committee for the United States, and coordinates the Olympic Movement in the United States, trains and underwrites expenses for United States athletes at the Olympic Games and Paralympic Games, and determines which United States city may present a bid to host the Olympic and Paralympic Games. (Burton Decl. ¶ 5.)1 The IOC is an international, nongovernmental, non-profit organization, founded on June 23, 1894 by Baron Pierre de Coubertin, as the umbrella organization of the Olympic Movement. (Stupp Decl. ¶ 3.) Since 1896, when the first modern games were held in Athens, Greece, the IOC has supervised the organization of the Olympic Games. (Id. ¶¶ 3-4.) Since 1896, Plaintiffs and their predecessors have used certain words and symbols in connection with the Olympic Games, including the word OLYMPIC and the Olympic Rings symbol. (Burton Decl. ¶ 8; Stupp Decl. ¶ 7.) In addition, Plaintiffs also use specific marks in connection with each Olympic Games. Those marks include City & Year Marks, such as SYDNEY 2000, ATHENS 2004, TORINO 2006, and BEIJING 2008, and various symbols, logos, taglines, and other marks. (Burton Decl. ¶ 8; Stupp Decl. ¶ 7.) In the United States, the intellectual property rights to the words and symbols associated with the Olympic Games are statutorily protected by the Ted Stevens Olympic and Amateur Sports Act (the "OASA"). See 36 U.S.C. §220506(a). The OASA grants to the USOC the "exclusive right to use" various marks associated
Citations herein to declarations accompanying this motion are referred to throughout as follows: "Burton Decl." refers to the declaration of Howard Burton dated July 18, 2008; "Stupp Decl." to the declaration of Howard M. Stupp dated July 18, 2008; Mueller Decl." to the declaration of Peter Mueller dated July 17, 2008; "Lintumaa Decl." to the declaration of Kai Lintumaa dated July 18, 2008; "Mueller Decl." to the declaration of Peter Mueller dated July 18, 2008; "Plotts Decl." to the declaration of David Plotts dated July 17, 2008; the "Schneider Decl." refers to the declaration of Courtney Schneider dated July 22, 2008; and "Dunbar Decl." to the declaration of Thomas Dunbar dated July 22, 2008. -2MEMO OF P'S & A'S IN SUPPORT OF TRO AND EXPEDITED DISCOVERY
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with the Olympic Games in the United States. It further authorizes the USOC to pursue a civil action against any person who uses the protected marks "for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition." 36 U.S.C. §220506(c). The marks protected by the OASA include the word OLYMPIC, as well as "any trademark, trade name, sign, symbol, or insignia falsely representing association with, or authorization by, the International Olympic Committee, the International Paralympic Committee, the Pan-American Sports Organization, or the [USOC]." 36 U.S.C. §220506(a)(4), (c)(3) and (c)(4) . The USOC also owns U.S. Trademark Registration Nos. 968,566, 2,311,493, and 2,777,890 for the word mark OLYMPIC, Registration Nos. 2,739,492 and 2,764,102 for the word mark BEIJING 2008 and Registration No. 3,043,229 for the official emblem of the Beijing 2008 Olympic Games, consisting of a stylized human figure design ("Human Figure Logo"), the words "Beijing 2008" written in a unique calligraphy typeface ("Beijing 2008 Word Design"), and the Olympic Rings symbol, as depicted below:

(Burton Decl. ¶ 9; Stupp Decl. ¶ 8.) All of the above marks ("Olympic Marks") are valuable assets to Plaintiffs. First, they represent the tremendous goodwill Plaintiffs have earned over the years. Second, Plaintiffs' revenue comes primarily from the sale of rights to broadcast the Olympic Games and their marketing, licensing and sponsorship programs involving
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the use of Plaintiffs' marks. (Burton Decl. ¶ 10; Stupp Decl. ¶ 9.) Thus, the protection of the Olympic Marks under the OASA, the Lanham Act, and common law is essential to Plaintiffs' continued ability to help promote and coordinate the Olympic Games. (Burton Decl. ¶ 10; Stupp Decl. ¶ 10.) B. Authorized Tickets to the Beijing 2008 Olympic Games

The 2008 Beijing Olympic Games will begin with the Opening Ceremony on August 8, 2008, will feature numerous athletic events over a sixteen-day period, and will conclude with the Closing Ceremony on August 24, 2008. (Burton Decl. ¶ 3; Stupp Decl. ¶ 4.) Tickets to each of those events are in very high demand, and spectators around the world have purchased such tickets through authorized channels. The IOC and the Beijing Organizing Committee for the Olympic Games ("BOCOG") have delegated to the USOC the responsibility for coordinating all sales of tickets in the United States for the upcoming 2008 Beijing Olympic Games. (Burton Decl. ¶ 11; Stupp Decl. ¶ 11.) The USOC has an exclusive sponsorship agreement with Global Sports Consultants, L/L/C/ d/b/a Jet Set Sports or CoSport that governs the sales of all authorized tickets to the 2008 Beijing Olympic Games in the United States. (Burton Decl. ¶ 12.) Jet Set Sports and CoSport are the only official providers with the right to distribute and sell Olympic tickets and hospitality packages in the United States, and to use Olympic trademarks in the United States to promote and sell such hospitality packages and tickets for the 2008 Beijing Olympic Games. (Id.) In the interests of security, and in an effort to prevent counterfeiting, each ticket to the Opening and Closing Ceremonies of the Games is embedded with a microchip containing the ticket's serial number, which corresponds to information in a database maintained by BOCOG that contains the bearer's photograph, passport details, addresses, e-mail addresses, and telephone numbers. (Stupp Decl. ¶ 14.) These tickets may be transferred only once and only through a complex procedure requiring both the original ticket purchaser and the transferee to submit
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forms to BOCOG. (Id.) While the primary goal of this procedure is to maximize security of the Games, it has the added benefit to the public of effectively eliminating mass-scale speculative ticket reselling. This is important to the Olympic movement, as ticket prices for the Beijing Olympic Games were intentionally set very low so as to allow as many people as possible to experience the Olympic Games ceremonies and competitions, while still generating revenue sufficient to support the staging of the Games. (Stupp Decl. ¶ 12.) C. The Defendants' Unlawful Conduct

Defendants operate the seven Websites that offer for sale tickets to the 2008 Beijing Olympic Games that they do not actually possess. One of the Websites, which is located at http://www.beijingticketing.com ("Primary Website"), is the medium through which consumers may purchase tickets Defendants will not provide, as explained below. Each of the other six websites operated by Defendants ("Secondary Websites"), which are identical or nearly identical to each other in appearance, advertise tickets for sale, and redirect users to the Primary Website at the point of purchase. The Secondary Websites are located at: · 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. The Primary Website is noticeably different in appearance than the Secondary Websites, but shares a similar layout and color scheme, uses the same logos and marks, and offers the same tickets for sale. (See Lintumaa Decl. Exs. A, E.) The Websites display, in numerous locations and without Plaintiffs' consent, several of the Olympic Marks. For example, the Websites prominently display in several locations a logo of a stylized human figure that closely resembles Plaintiffs'
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Human Figure Logo. (See Lintumaa Decl., Exs. A, D.) Directly below each instance of that logo, the Websites also display the words "Beijing 2008" in a typeface that closely resembles the Beijing 2008 Word Design, as depicted below:

This combination of marks is prominently displayed in three places on the Primary Website's home page and two places on the home page of each of the Secondary Websites. (See id.) The Websites also repeatedly use the word marks "Olympic" and "Beijing 2008." (See id.) The sole purpose of the Websites is to sell tickets to the Olympic Games. The Websites offer no other product or service. (See id.) Thus, every instance of the Websites' use of the Olympic Marks appears in the context of an offer to sell tickets. The Websites' use of the Olympic Marks has achieved precisely what Defendants intended -- to mislead the public into believing that Defendants are operating an official Olympic ticket site. As Forbes Traveler reported in February, 2008: The safest bet is to go through the official ticketing websites, including www.beijingticketing.com, www.chinaolympic2008tickets.com, and www.beijing-2008tickets.com, www.cosport.com, or en.beijing2008.cn. (See Schneider Decl. Ex. A (emphasis added).) D. Defendants Are Offering to Sell Tickets They Cannot Legitimately Transfer and Likely Do Not Possess The home page of each Website contains links to subpages for 39 categories of Olympic events, including the Opening and Closing Ceremonies and 37 categories of individual athletic competitions. (See id.) Each subpage offers a
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variety of tickets within each category, including tickets to each day of the competition and frequently including several pricing options depending on where the seats are located at the event. (See Lintumaa Decl. ¶ 3.) The tickets offered for sale on the Websites range in price, from as low as $100 for early individual competitions, to as high as $2150 per ticket for the Opening Ceremonies. (See id.) When a user clicks on the links provided to purchase the tickets, the user is redirected to a subpage of the Primary Website to select and purchase tickets. (See id. ¶¶ 2-3, 12-13.) The Websites allow the user to request expedited delivery of the tickets, but, once a purchase transaction is confirmed by the would-be purchaser, do not actually provide tickets, on an expedited basis or at all. (See id. ¶¶ 4, 6-11.) Indeed, the Websites cannot offer tickets to the Opening and Closing Ceremony tickets because of the security procedures outlined above, with which they make no pretense of applying. Several customers have attempted to purchase tickets using the Primary Website, believing it to be a source of legitimate tickets to the 2008 Opening Ceremony. (Dunbar Decl. ¶¶ 2-3; Mueller Decl. ¶¶ 3-4; Plotts Decl. ¶¶3-4.) However, none of these individuals has received tickets as a result of their orders. (Dunbar Decl. ¶ 14; Mueller Decl. ¶ 18; Plotts Decl. ¶ 13.) One such consumer who purchased tickets from the Primary Website, and had heard of the security procedures associated with the tickets, became suspicious of the validity of Defendants' tickets and attempted to cancel his purchase. (Mueller Decl. ¶¶ 10-15.) He exchanged various emails with Defendants regarding his concerns, questioning the information on the Websites that he learned was inaccurate. (Id. ¶ 13.) Defendants responded, "Instead of asking questions and going around the houses and spending silly amounts of time in emailing us and trying to catch out after booking, why don't you just ask for your money back and for us to cancel your order instead of trying to make yourself a private detective and wasting your time and ours." (Id.) The consumer did seek to cancel his order and followed up four
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times, but Defendants simply ignored his requests. (Id. ¶ 14.) Another consumer who similarly placed a ticket order on the Primary Website, believing it to be a source of legitimate tickets to the Opening Ceremony, has also exchanged several emails with the site. (Dunbar Decl. ¶¶ 2-3, 7-10, 12. However, based on the responses he has received stating that no photo or passport information is required for the Opening Ceremony ticket, he is doubtful that the ticket that he ordered for $1,150, if he in fact receives it, will be legitimate. (Dunbar Decl. ¶ 14). Another consumer, after trying to obtain answers from the Primary Website regarding his order, does not believe that the site will ever deliver to him the tickets that he ordered to the Opening Ceremony. (Plotts Decl. ¶ 13.) To confirm that Defendants were fraudulently purporting to sell tickets, Plaintiffs hired an investigator to attempt to purchase tickets from Defendants to both the Opening Ceremonies and one individual event. Plaintiffs' investigator placed an order, specifying expedited delivery, and Defendants charged his credit card. (Lintumaa Decl. ¶¶ 2-6, 11.) When he attempted to confirm that the tickets would be delivered on an expedited basis, however, his inquiries were met with silence. (Id. ¶¶ 4-9.) And, of course, he received no tickets.2 (Id. ¶ 11.) E. Defendants' Efforts to Conceal Their Identities

In an apparent effort to remain anonymous and evade prosecution for their illicit conduct, Defendants are misleading the public as to their true identities and contact information. Each of the Websites, except www.buy-olympic-tickets.co.uk, lists XLH or X.L. & H. Ltd. as the owner of the site and further states that XLH is a Delaware corporation, with an address at 2415 Camelback Road, Suite 700, Phoenix, Arizona, and a phone number that begins with +44, the code for London,
2

Plaintiffs have reason to believe that Defendants are quite experienced in the business of deceiving consumers. On information and belief, consumers have complained about tickets sold on other websites operated by these same Defendants (also using the name XLH). Among the complainants cited in one news article were fans escorted from their seats by security guards when it was discovered that the tickets to other events they had purchased from Defendants had been stolen, and another purchaser who received no tickets at all, only an empty envelope. (See Schneider Decl. Ex. B.)
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UK. (Lintumaa Decl. ¶ 14.) Despite this contention, XLH is not a corporation organized in Delaware or Arizona, nor does it have a physical address at 2415 Camelback Road, Suite 700, Phoenix, Arizona. In fact, that address is the address for several companies, including a law firm, but not for a ticket seller. (Id.) Despite Defendants' efforts to conceal their identities, sufficient information is available to confirm that they have deceived, and will continue to deceive, consumers in California and throughout the United States using Plaintiffs' Olympic Marks, and should be shut down immediately. ARGUMENT A temporary restraining order is necessary in this case to bar Defendants from continuing to use Plaintiffs' valid marks to promote and sell phony tickets to the 2008 Beijing Olympic Games, causing irreparable harm to Plaintiffs as well as to the general public. In order to obtain a temporary restraining order in the Ninth Circuit, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised for litigation and the balance of hardships tips sharply in favor of the moving party. GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1204-05 (9th Cir. 2000); California Independent System Operator Corp. v. Reliant Energy Services, Inc., 181 F. Supp. 2d 1111, 1126 (E.D. Cal. 2001) (standard for temporary restraining order is same as for obtaining preliminary injunction). III. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS A. Defendants Are Engaging in Unfair Business Practices

California Business & Professions Code §17200 et seq. ("Section 17200") precludes a party from engaging in any unfair or fraudulent business practice. An unfair business practice is found where the defendant's conduct offends an established public policy or is otherwise immoral or unethical, and a defendant's conduct will be considered "fraudulent" where members of the public are likely to
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be deceived. Podolsky v. First Healthcare Corp., 50 Cal App. 4th 632, 647, 58 Cal. Rptr. 2d 89, 98 (1996). The court will weigh the utility of the defendant's conduct against the gravity of the harm. Id. Similarly, California Business & Professions Code §17500 et seq. ("Section 17500") precludes a party from making any false or misleading statement about a product or service. Section 17500 prohibits any person or entity from communicating a statement to the public which is untrue or misleading, which that party knew or should have known to be untrue or misleading. People v. Toomey, 157 Cal. App. 3d 1, 16, 203 Cal. Rptr. 642, 652 (1984). A statement is false or misleading if members of the public are likely to be deceived. Id. As shown by the declaration of Kai Lintumaa, Plaintiffs here can easily make the requisite showing to prevail on their claims under Sections 17200 and 17500. Defendants, in direct competition with Plaintiffs and their authorized agents, are purporting to solicit sales of tickets to the upcoming Olympic Games. While it is likely that Defendants have no actual tickets, it is clear that at least some of those they are purporting to sell--for the Opening and Closing Ceremonies--are not valid and will not gain the purchaser admission under BOCOG's policy. Moreover, in conjunction with these efforts, they advertise that they are "Official Partners," implying an official partnership with Plaintiffs. It is difficult to imagine a more compelling case of unfair business practices or false advertising under California law. B. The Olympic and Amateur Sports Act Grants Exclusive Use of the Olympic Marks to the USOC Even if Defendants were selling genuine Olympic tickets, Plaintiffs would still prevail on the merits of their claims. Through the OASA, Congress has granted the USOC the exclusive right to use and control the commercial use of certain Olympic symbols. 36 U.S.C. § 220506; see U.S.O.C. v. Intelicense Corp., 737 F.2d 263, 266-67 (2d Cir. 1984) (explaining that Congress intended to promote
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U.S. Olympic effort by providing USOC with "unfettered control over the commercial use of Olympic-related designations" and finding violation of the Act where defendant made commercial use of Olympic symbol without consent). The statute provides that without the consent of the USOC, any person who uses any of the Olympic symbols "for purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition" is liable for damages in accordance with the remedies provided in the Lanham Act. 36 U.S.C. § 220506(c)(4). The protected symbols include, among others, the words "Olympic" and "Olympiad," among others, or any combination of these words "tending to cause confusion or mistake, to deceive, or to falsely suggest a connection" with any Olympic activity, and any trademark, trade name, sign, symbol, or insignia falsely representing association with the International Olympic Committee. 36 U.S.C. § 220506(a). The statute establishes, and the Supreme Court has affirmed, that the protection afforded to Olympic symbols is broader than the rights provided under the Lanham Act, effectively providing the USOC with an exclusive right in the Olympic words and symbols. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 535 (1987). The statute does not require the USOC to prove that a defendant's use is likely to cause confusion, nor does the statute incorporate the defenses that are available under the Lanham Act. Id. Thus, the USOC has exclusive right to the use of all Olympic symbols and marks, including Human Figure Logo and the word marks "Beijing 2008" and "Olympic." These exclusive rights under OASA entitle Plaintiffs to injunctive relief here. C. The Lanham Act Precludes Defendants' Fraudulent and Infringing Conduct 1. Defendants' Conduct Constitutes Infringement Under the Lanham Act Even if 36 U.S.C. § 220506 did not mandate injunctive relief here (which it
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does), Plaintiffs would still be entitled to the relief they seek. Defendants in this case are currently making unauthorized use of Plaintiffs' marks on the XLH Websites, as well as other indicia of the Olympics, in an effort to mislead consumers into believing that the sites are legitimate and are in fact associated with the IOC and USOC. Defendants use Plaintiffs' marks and claim to be an "Official Partner" so as to dupe consumers into believing that they will actually receive legitimate tickets. Such deception of the public is forbidden by Section 32(1) of the Lanham Act. Section 32(1) proscribes the use in commerce of any "reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive." 15 U.S.C. § 1114; K and N Engineering, Inc. v. Bulat, 259 Fed. Appx. 994 (9th Cir. 2007) (affirming lower court's grant of summary judgment based on determination that defendants' intentional use of plaintiff's mark was likely to cause confusion); Au-Tomotive Gold, Inc. v. Volkswagon of Am., Inc., 457 F.3d 1062, 1075 (9th Cir. 2006). Plaintiffs here can establish actionable infringement as they can demonstrate (1) ownership of valid and legally protectable marks; (2) that Defendants "used" those marks "in commerce;" (3) the "use in commerce" was in connection with the sale, offering for sale, distribution, or advertising of goods and services;" and (4) the infringing use was in a manner likely to confuse consumers. 15 U.S.C. § 1114. First, as set forth above, Plaintiffs can establish that the marks at issue are valid and protectable marks. Plaintiffs' Human Figure Logo is registered with the United States Patent and Trademark Office under Reg. No. 3,043,229. Plaintiffs have also registered the word marks "Beijing 2008" (Reg. Nos. 2,739, 492; 2,764,102) as well as "Olympic" (Reg. No. 968,566; 2,311,493; 2,777,890). (Burton Decl. ¶ 9; Stupp Decl. ¶ 8.) Such registrations constitute prima facie
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evidence of the marks' validity. 15 U.S.C. § 1115; Au-Tomotive Gold, 457 F.3d at 1064 n.2 ("A registered mark is `prima facie evidence . . . of the registrant's exclusive right to use the registered mark in commerce'") (quoting 15 U.S.C. § 1115)). Second, Plaintiffs can establish that by using Plaintiffs' marks on the XLH Websites to sell tickets via the Internet to consumers nationwide, Defendants are making use of the marks in commerce in connection with goods or services. See Au-Tomotive Gold, 457 F.3d at 1075 (finding use plaintiffs' trademarks in connection with the sale of goods). Third, Plaintiffs can also demonstrate the central element of trademark infringement--likelihood of confusion, i.e., whether the similarity of the marks is likely to confuse customers about the source of the products or services. GoTo.com, 202 F.3d at 1205 (quotations omitted); Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1061 (9th Cir. 1999) (finding a likelihood of confusion); Apple Inc. v. Podfitness, Inc., 2008 U.S. Dist. LEXIS 45241, *7 (N.D. Ca. 2008) (finding defendant's use of "podfitness.com" and "podfitness" to be likely to cause confusion with plaintiff's iPod Marks). In determining likelihood of confusion, courts in this Circuit consider eight factors: (1) strength of the mark; (2) proximity of the goods or services; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods or services and the degree of care likely to be exercised by the purchaser; (7) defendant's intent in selecting the mark; and (8) likelihood of expansion. AMF, Inc. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979) (finding that defendant's use of mark "Sleekcraft" for speedboats infringed plaintiff's mark "Slickcraft" for recreational boats despite weakness of plaintiff's mark and non-competitiveness of goods).3 In this case, each of the factors weighs
This list of factors is intended to be a guide, and the court is neither required to consider all of these factors, nor limited to considering only these factors. GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir. 2000); Apple Computer, Inc. v. Formula Int'l,
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in favor of Plaintiffs. Collectively, they overwhelmingly demonstrate a likelihood of confusion. · Strength. Here, there can be no question that Plaintiffs' marks are

strong: Plaintiffs and their predecessors have used their OLYMPIC mark for over 100 years and Plaintiffs and their licensees have continuously used the Human Figure Logo and "Beijing 2008" marks for years and have devoted hundreds of millions of dollars to an advertising campaign across the U.S. featuring the marks. The USOC itself will spend more than $1.5 million in promoting the U.S. Olympic Team prior to and during the 2008 Olympic Games. (Stupp Decl. ¶ 7.) In fact, the Olympic Marks are so strong that Congress has granted exclusive use of those marks in the United States -- without regard to traditional trademark defenses -- to the USOC. As strong marks, the Olympic Marks are entitled to more protection because they are more likely to be remembered and associated in the consumers' minds with their owners. Brookfield, 174 F.3d at 1058 (citations omitted).4 · Relatedness of Goods or Services. Here, because Defendants purport

to offer the same goods, i.e., tickets to the 2008 Olympic Games, offered by the USOC, through its agents, the parties' goods and services are highly related, and thus this factor also favors Plaintiffs. AMF, 599 F.2d at 350 (where goods or services are related, danger exists that public will mistakenly assume association between producers). · Similarity. There can also be no question that Defendants are making

use of several images that are unmistakably similar to Plaintiffs' marks. First, Defendants display on their Websites marks that closely resemble the Human Figure Logo and the "Beijing 2008" mark, in nearly identical font, color, style and size. The Websites also include other images that are similar to those made use of by Plaintiffs and are evocative of the IOC and USOC, such as stylized stick figure
Inc., 725 F.2d 521, 526 (9th Cir. 1984). 4 The "strength" of a trademark is "evaluated in terms of its conceptual strength and commercial strength." GoTo.com, 202 F.3d at 1207 (citations omitted).
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designs that are used to represent each sporting event. Thus, this critical factor weighs in favor of Plaintiffs. See, e.g., Newsguy, Inc. v. Yomtobian, 2006 U.S. Dist. LEXIS 93197, *10-11 (N.D. Ca. Dec. 20, 2006) (finding similarity where the marks differed only by the letter "s"). · Actual confusion. While proof of actual confusion is not a

prerequisite, Eclipse Associates, Ltd. v. Data General Corp., 894 F.2d 1114, 111819 (9th Cir. 1990), as set forth more fully in the Dunbar, Mueller and Plotts Declarations and in the article attached as Exhibit A to the Declaration of Courtney Schneider, in which even Forbes Traveler believes BeijingTicketing.com is an official website,5 Plaintiffs have evidence of actual confusion, which "is persuasive proof that future confusion is likely." AMF, 599 F.2d at 352 (citations omitted). Thus, this factor weighs in Plaintiffs' favor as well.6 · Marketing Channels. "Convergent marketing channels increase the

likelihood of confusion." AMF, 599 F.2d at 353 (citations omitted). Where, as here, Plaintiffs and Defendants sell their services to the same pool of customers, advertising in the same publications, this factor weighs in Plaintiffs' favor. · Bad Faith. Here, the evidence of Defendants' bad faith is

overwhelming. Defendants are deliberately using marks similar to Plaintiffs' Olympic Marks and other images, such as stylized stick figures to represent the various Olympic events to deceive consumers into believing that their Websites are affiliated with or authorized by Plaintiffs and are therefore actually selling legitimate tickets to the Olympic Games. In addition, Defendants prominently state on their sites that each XLH Website is an "Official Partner." Defendants have also
See Schneider Decl. Ex. A ("The safest bet is to go through the official ticketing websites, including www.beijingticketing.com, . . .") 6 Actual confusion can be shown by mistaken purchasing decisions or by "initial confusion" where defendant's trademark captures initial consumer attention, even though no actual sale is finally completed as a result of the confusion. Dr. Seuss Enters., L.P. v. Penguin Books USA, 109 F.3d 1394, 1405 (9th Cir. 1997). Further, another form of confusion ensues when consumers wrongly assume that the service they were searching for is no longer offered, having been replaced by a competitor, and thus simply use the competitor's services. Brookfield, 174 F.3d at 1057.
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attempted to conceal their true identities, including by providing false contact information on the sites and in their domain name registration information. · Sophistication of Potential Consumers. Where the products are

identical and the marks are strongly similar, however, the sophistication of buyers cannot be relied on to prevent confusion, and this factor will not mitigate the likelihood of confusion. See, e.g., Eclipse Associates, 894 F.2d at 1118 ("The district court had substantial evidence from which to determine that customers, regardless of their sophistication, were likely to be confused by two computer companies using the mark ECLIPSE . . . ."). Here, because Defendants are offering identical goods using marks that are nearly identical to Plaintiffs', this factor also weighs in favor of a finding of likelihood of confusion. · Expansion into same market. In assessing likelihood of confusion,

"a `strong possibility' that either party may expand his business to compete with the other will weigh in favor of finding that the present use is infringing." AMF, 599 F.2d at 354 (citations omitted). Here, Defendants already purport to sell tickets for the 2008 Olympics, which is precisely the domain of Plaintiffs and their contractually-authorized agents. Thus, this factor weighs in favor of Plaintiffs. *** In sum, consideration of the relevant factors amply demonstrates that Plaintiffs are likely to succeed on their claim that Defendants attempt to capitalize on the success of Plaintiffs' business by using the same well-known trademarks for the very services that Plaintiffs are already offering in violation of section 32(1) of the Lanham Act. D. Defendants' Conduct Constitutes False Endorsement and False Advertising Defendants' false and misleading promotion and marketing of their Websites, through the use of Plaintiffs' marks and other official indicia of the Olympics, to sell phony tickets to the Olympic Games also warrant injunctive relief as such
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conduct constitutes false endorsement and false advertising under the Lanham Act. 15 U.S.C. §1125(a)(1)(A); § 1125(a)(1)(B). A false endorsement claim requires a showing that: (1) goods or services were involved; (2) interstate commerce was affected; and (3) there was a false designation of origin or false description of the goods or services. 15 U.S.C. §1125(a)(1)(A). In establishing the last factor, the court will look for the plaintiff to show that there is a likelihood of confusion. White v. Samsung Electronics America, Inc., 971 F.2d 1395, 1399 (9th Cir. 1992). Plaintiffs can establish false endorsement here where Defendants are falsely claiming to sell in interstate commerce tickets for the 2008 Beijing Olympics, using Plaintiffs' registered Olympic marks and recognizable Olympic images, such as stylized stick figures, and claiming that each site is an "Official Partner," to create the misimpression that Plaintiffs endorse or in some way approve of the Websites and authorize the sale of the tickets. Based on such conduct, Defendants' use is both likely to cause and actually has caused confusion, as discussed above. Thus, Plaintiffs are likely to prevail with respect to their false endorsement claim. See Wendt v. Host Int'l, 125 F.3d 806, 812 (9th Cir. 1997). Plaintiffs can establish a false advertising claim by demonstrating that Defendants: (1) use a false or misleading description of fact or representation of fact; (2) in interstate commerce in connection with goods or services in commercial advertising or promotion; and (3) it is likely that some harm will result from the misrepresentation. 15 U.S.C. § 1125(a)(1)(B); Sigma Dynamics, Inc. v. E. Piphany, Inc., 2004 U.S. Dist. LEXIS 24161, *6 (N.D. Ca. 2004). The Ninth Circuit also requires that the plaintiff show that the injury was "competitive," i.e. harmful to the plaintiff's ability to compete with the defendant. Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981) (plaintiff with interest in misrepresentation at issue has standing). Plaintiffs can easily prevail on the merits of their false advertising claim. Plaintiffs can show a competitive injury, as Defendants' conduct impacts Plaintiffs'
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ability to sell tickets to the Olympic games; after all, every person who believes he/she is buying a bona fide Olympic games ticket from Defendants is someone to who could have bought a ticket from one of Plaintiffs' authorized agents. Id. Plaintiffs can also show that Defendants are falsely claiming that they are selling bona fide tickets to the Olympic Games, using Plaintiffs' marks and other symbols and claiming to be an "Official Partner" to lead consumers falsely to think that the sites are legitimate and that the goods are authentic. Pepsico, Inc. v. Plank, 2002 U.S. Dist. LEXIS 14378, *13 (C.D. Ca. Jul. 18, 2002) (finding false advertising where defendant selling counterfeit soda, labeled with false ingredient and nutritional information). This constitutes false advertising. E. By Using Plaintiffs' Trademarks in Their Domain Names, Defendants Are in Violation of the Anti-Cybersquatting Protection Act Defendants' deception also extends to the domain names that it makes use of with respect to the sites www.2008-0lympics.com; www.beijingolympictickets.com; www.beijingolympictickets2008.com; www.olympic-tickets.net; and www.olympicticketsbeijing2008.com. Such sites make use of Plaintiffs' trademarks and constitute a violation of the AntiCybersquatting Protection Act (the "ACPA"). A defendant is liable under the ACPA to the owner of a protected mark if it has: (1) a bad faith intent to profit from that mark, and (2) registers, traffics in, or uses a domain name that (3) is identical or confusingly similar to plaintiff's mark, or protected by special legislation. 15 U.S.C. § 1125(d)(1)(A); see Johnson v. Connolly, 2007 U.S. Dist. LEXIS 31721, *7 (N.D. CA. Apr. 18, 2007). Here, Defendants have registered and used domain names that incorporate words and phrases such as "Olympic" and "Beijing 2008" that are both (1) protected by reason of 36 U.S.C. § 220506 and (2) identical, confusingly similar to, and dilutive of Plaintiffs' registered trademarks. Defendants also have a bad
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faith intent to profit from their use of these Olympic Marks, which they have used primarily with the intent of financially benefiting from consumers seeking legitimate online locations for sales of authorized Olympic tickets. Such conduct harms the goodwill represented by the marks for commercial gain by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the Defendants' Websites. See Johnson, 2007 U.S. Dist. LEXIS 31721 at *7-8 (ACPA violated where defendant registered www.fuzzyduds.com in bad faith with intent to trade upon good will of plaintiff's mark "Cowboy's Fuzzy Duds"). As further evidence of their bad faith, Defendants have also provided false and misleading contact information when applying for the registration of the domain names and has intentionally failed to maintain accurate contact information. Thus, Plaintiffs' can show a likelihood of success on their claim for cybersquatting. IV. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE COURT DOES NOT GRANT THE REQUESTED RELIEF A. Plaintiffs Can Show Irreparable Harm

In trademark infringement actions, the Ninth Circuit has held that once the plaintiff has established a likelihood of confusion, irreparable harm is presumed. GoTo.com, 202 F.3d at 1209. This is because it is reasonable for the court to assume that continuing infringement will leave the plaintiff with a loss of control of its reputation and a loss of its goodwill. Apple, 725 F.2d at 526. Because they have demonstrated a likelihood of success on the merits, Plaintiffs are entitled to a presumption of irreparable harm. Even absent the presumption, Plaintiffs can establish irreparable injury. Defendants in this case are usurping Plaintiffs' well-established brand name and good will and causing consumers to misidentify Plaintiffs' with Defendants' fraudulent Websites. Apple, 725 F.2d at 526 (continuing infringement would result in irreparable injury based on a loss of control over reputation and loss of goodwill). Significantly, by using Plaintiffs' trademarks and purporting to offer
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tickets to the 2008 Olympics nationwide through their Websites, Defendants are leading consumers to believe that Defendants are in some way associated with or approved by Plaintiffs when this is not the case. Such an association between Plaintiffs and Websites that are aimed at deceiving the public and fraudulently offering for sale tickets that are not even in their possession tarnishes Plaintiffs' image and threatens to turn the public off to the Olympics in general. In fact, those individuals who are deceived by Defendants' Websites will be less likely to purchase tickets to the Olympic Games in the future or purchase licensed merchandise. In addition to these obvious harms, a significant source of irreparable injury lies in the fact that Defendants are lessening the value of Plaintiffs' intellectual property. Both the IOC and USOC rely primarily on the value of their intellectual property as a source of revenue. (Burton Decl. ¶ 10; Stupp. ¶¶ 9-10.) Thus, Plaintiffs depend upon the sale of broadcasting rights as well as marketing, licensing and sponsorship programs related to the use of Plaintiffs' marks as sources of financial support. (Id.) By making use of Plaintiffs' marks in this manner, Defendants' conduct diminishes the value of these rights. Defendants' infringing activity thus threatens to substantially reduce the amount of funding available to Plaintiffs as sponsors and licensees may be less willing to pay as much for the right to use Plaintiffs' marks. Defendants' conduct also injures Plaintiffs' relationships with their sponsors and others, such as Jet Set Sports, which suffers directly by having to compete with unauthorized ticket sellers. As of this date, while tickets to individual events are sold out, there are still some tickets available for purchase in the U.S. as part of hospitality packages. Consumers who purchase tickets from Defendants are less likely to purchase such packages, and the USOC, which receives some incremental revenue from Jet Set Sports based on ticket sales, suffers directly as a result of Defendants' conduct. (Burton Decl. ¶ 16 ; Stupp Decl. ¶ 9.) Thus, Plaintiffs will
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be irreparably harmed if Defendants' infringement is not enjoined. 1. The Balance of Hardships Favors Plaintiffs, and There Are Fair Grounds for Litigation Because Plaintiffs have shown that they are likely to succeed on the merits and that they are likely to suffer irreparable injury absent an injunction, it is not necessary for the Court to consider whether the balance of hardships tips decidedly in favor of Plaintiffs and whether there are fair grounds for litigation. See GoTo.com, 202 F.3d at 1209 ("Because GoTo has prevailed under this avenue for obtaining injunctive relief, we need not decide whether there exist serious questions on the merits or whether the balance of hardships tips sharply in favor of GoTo."). Nevertheless, Plaintiffs can satisfy the alternate test as well: as set forth above, there are fair grounds for litigation, and, as set forth below, the balance of hardships weighs strongly in Plaintiffs' favor. 2. The Harm to Plaintiffs Far Outweighs Any Possible Harm to Defendants There can be no question that the balance of the hardships tips decidedly in favor of Plaintiffs. As Plaintiffs have described above, if the Court allows Defendants to continue to use Plaintiffs' marks in connection with their suspect business venture, Plaintiffs will be irreparably injured. See GoTo.com, 202 F.3d at 1209; Apple Computer, 725 F.2d at 526. In contrast, Defendants have no legitimate business interest to protect. In fact, Defendants' business appears to be one built on deliberately infringing conduct. Where the intent to infringe is clear, even if the defendant's entire business was built upon the infringing mark, the balance of hardships weighs in favor of the plaintiff. See My-T Fine Corp. v. Samuels, 69 F.2d 76, 78 (2d Cir. 1934) (Hand, J.) ("were it not for the intent to trade unfairly, we might hesitate, but advantages built upon a deliberately plagiarized make-up do not seem to us to give the borrower any standing to complain that his vested interests will be disturbed"); Concrete Mach. Co., Inc. v.
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Classic Lawn Ornaments, Inc., 843 F.2d 600, 612 (1st Cir. 1988) (internal quotations and citations omitted) ("[w]here the only hardship that the defendant will suffer is lost profits from an activity which has been shown likely to be infringing, such an argument in defense merits little equitable consideration . . . . Such considerations apply even to a business which is exclusively based on an infringing activity and which would be virtually destroyed by a preliminary injunction."); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1255 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984) (internal citations omitted) (if defendant's reliance on infringing activity for survival barred issuance of injunction, "a knowing infringer would be permitted to construct its business around its infringement, a result we cannot condone."). 3. The Public Interest Favors an Injunction

In addition to the concerns of Plaintiffs and Defendants, this Court may also consider the public interest in the balance of hardships in an unfair competition suit. See Brookfield, 174 F.3d at 1066 ("Preliminary injunctive relief is appropriate here to prevent irreparable injury to Brookfield's interests in its trademark `MovieBuff' and to promote the public interest in protecting trademarks generally as well."). Here, consumers are being led to believe there is a relationship between Plaintiffs and Defendants, when in reality none exists. Further, consumers are at risk of being deceived if they actually seek to purchase tickets using Defendants' site as they may lose hundreds or even thousands of dollars and not receive legitimate tickets to the Olympic Games. Thus, the public interest militates against allowing Defendants to continue to confuse consumers in this fashion. See V.E.W., Ltd. v. Karla Hour Couture, 1997 U.S. Dist. LEXIS 22742, *6 (N.D. Ca. Dec. 16, 1997) (preliminary injunction in public interest where defendant used counterfeits of plaintiffs' Vera Wang trademarks and logos in connection with sale of wedding dresses).

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V.

PLAINTIFFS' REQUEST FOR EXPEDITED DISCOVERY SHOULD BE GRANTED A. Expedited Discovery Is Warranted Under the Federal Rules of Civil Procedure This Court has broad discretion to grant expedited discovery. Fed. R. Civ. P.

26(d). In determining whether expedited discovery should be granted, courts in this Circuit have applied the conventional standard of good cause. See Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Ca. 2002); UMG Recordings, Inc. v. Does, 2006 U.S. Dist. LEXIS 32821, *3 (N.D. Ca. 2006). "Good cause may be found where the need for expedited discovery, in the consideration of the administration of justice, outweighs the prejudice to the responding party." Semitool, 208 F.R.D. at 276. Good cause is frequently found in cases involving claims of infringement and unfair competition. Id. Here, Plaintiffs do not know the identities of those operating the fraudulent Websites as Defendants have gone to great lengths to hide their true identities. Thus, Plaintiffs seek expedited discovery on ServPath, the current host server of the sites, eNom, Inc., the registrar of the domain name, and Google, the company managing the XLH Website operator's email address, in order to uncover the Defendants' true identities. This Court granted expedited discovery under a similar set of facts in UMG Recordings, where the plaintiffs brought an action for copyright infringement against several Doe defendants who were allegedly distributing plaintiff's copyrighted works without authorization. 2006 U.S. Dist. LEXIS 32821 at *2. The plaintiff in that case sought to serve a Fed. R. Civ. P. 45 subpoena on the Internet Service Provider, seeking immediate discovery of each defendant's true name, address, telephone number, e-mail address and Media Access Control address. Id. The court determined that the good cause for expedited discovery outweighed any prejudice to the Doe defendants because plaintiff had no other way to obtain such
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basic information and without the disclosure of the defendants' names and contact information, the litigation could not proceed to the discovery stage. Id. at *3-4. The same reasoning applies in the present case. Plaintiffs cannot pursue this action without first identifying the Doe Defendants. Such good cause outweighs any prejudice to Defendants. Thus, expedited discovery is warranted under the Federal Rules. B. Expedited Discovery Is Warranted Under This Court's Local Rules Under this Court's local rules, pre-service discovery is available to discover the identity of Doe defendants who have anonymously or pseudonymously committed tortious acts on-line if the plaintiff is able to: (1) identify the Doe defendant with specificity sufficient to permit the court to determine that the defendant is a real person who can be sued, (2) identify the steps taken to locate the Doe defendant, and (3) establish that its suit against the Doe defendant would withstand a motion to dismiss. Fed. Pre-trial Civ. P. CA 23.159; Gillespie v. Doe, 629 F.2d 637, 642-43 (9th Cir. 1980); Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-580 (N.D. Ca. 1999). Here, Plaintiffs can satisfy all three requirements. First, Plaintiffs have set out in the facts section above the named operator of the Websites, XL&H, as well as all of the information under which Defendants have registered their sites. This information, combined with evidence of actual confusion documented in the declarations of Peter Mueller, David Plotts and Thomas Dunbar as well as information gathered by Plaintiffs' private investigators, establishes that there are actual individuals behind these sites advertising and purporting to sell tickets to residents of California and across the U.S. who can be sued in the Northern District of California. See Columbia Ins. Co., 185 F.R.D. at 579 (finding that plaintiff had adequately identified Doe defendant by providing defendant's aliases and producing evidence of emails sent by defendant as well as information
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