Concordia Partners v. Pick

Maine Superior

Concordia Partners v. Pick

DecidedDecember 27, 2013

DocketCUMcv-13-135

StatusUnpublished

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Bluebook

Concordia Partners v. Pick, (Me. Super. Ct. 2013).

Pincite

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-13-13~ ;:/I "~JJvV -c.u!Y) ;!]1r/~<>B CONCORDIA PARTNERS LLC,

Plaintiff,

v. ORDER

MARCELLE PICK, et al, STATE OF MAINE Cumberland, s:;, Clerk's Ob Defendants DEC 17 2013

RECEIVED Before the court 1s a motion by plaintiff Concordia Partners LLC for a

preliminary injunction.

The court has considered the submissions of Concordia and of defendants

Marcelle Pick and Pick Enterprises LLC (collectively "Pick Enterprises"), the affidavits

submitted by both sides, and the points raised at oral argument on December 11.

In ruling on a preliminary injunction, the court must ordinarily consider four

factors: (1) whether the plaintiffs will suffer irreparable injury in the absence of a

preliminary injunction; (2) whether that injury outweighs any harm which granting

injunctive relief would inflict on the defendant, (3) whether plaintiffs have

demonstrated a likelihood of success on the merits (at most, a probability; at least, a

substantial possibility); and (4) whether the public interest would be adversely affected

by granting the injunction. Bangor Historic Track Inc. v. Department of Agriculture, 2003

ME 140 'li 9, 837 A.2d 129; Ingraham v. University of Maine, 441 A.2d 691, 693 (Me. 1982).

The primary relief sought by Concordia is an injunction prohibiting Pick

Enterprises from displaying on its website certain articles whose copyright is allegedly owned by Concordia under section 8H of a 2006 Licensing Agreement between the

parties.

The court concludes that Concordia has shown irreparable injury under the

principle that harm that is apparent but that cannot easily be quantified is sufficient to

justify injunctive relief. Ross-Simons of Warwick Inc. v. Baccarat Inc., 217 F.3d 8, 13 (1st Cir.

2000). Pick Enterprises argues with some force that the major harm to Concordia results

from its loss of the W2W website, which is the acknowledged property of Pick

Enterprises. This may be correct, but it does not allow Pick Enterprises to inflict

significant additional harm by appropriating articles to which it appears likely that

Concordia has the copyright pursuant to the Licensing Agreement and thereby

subjecting Concordia to Coogle's duplicate content penalty. 1

On the issue of whether the injury to Concordia if an injunction is not issued

outweighs any injury to Pick Enterprises if an injunction is entered, the court concludes

that the balance of harms strongly favors Concordia. Indeed, the court sees no harm to

Pick Enterprises from the granting of an injunction limited to prohibiting Pick

Enterprises from displaying on its website articles to which Concordia appears to own

the copyright. Pick Enterprises retains the W2W website and trademark, retains the

portal to Ms. Pick's Clinic, and retains its rights to all of the articles and other materials

which are not the subject of this injunction.

The court also concludes that under section 8H of the 2006 Licensing Agreement

Concordia has demonstrated a reasonable likelihood of success on its claim that it owns

the copyright to the articles that are the subject of this order. Although there is ample

1 On the subject of harm the court was invited by the parties to google the subjects of the disputed articles. In a set of five searches, the W2W website appeared in each case on the second page of the search. In each case Concordia's website was not found in the first 10 pages of the google search, and the court terminated the search at that point.

2 evidence that Ms. Pick was the source of the ideas for many of the articles to which

Concordia now claims the copyright, an author may not copyright ideas - copyright

applies to the expression of ideas. See Harper & Row Publishers Inc. v. Nation Enterprises, ' 471 u.s. 539, 556-57 (1985).

In light of this principle, the court does not find section 8H to be ambiguous and

concludes based on all the affidavits submitted that Concordia has established a

reasonable likelihood of success on its claim that under section 8H, Concordia owns the

copyright to the articles on the attached Schedule A.

Finally, the court can discern no harm to the public interest from the granting of

the injunctive relief specified in this order.

Pick Enterprises argues that Concordia is barred from injunctive relief because it

has unclean hands. Whether Concordia correctly decided not to rely on an eleventh

hour statement from an attorney for Pick Enterprises retreating from its former position

that the 2006 Licensing Agreement was not subject to renewal is an open question but

that does not constitute unclean hands that would bar injunctive relief. This is

particularly true because, regardless of the manner in which the 2006 Licensing

Agreement was terminated or who was at fault, the provision which Concordia now

seeks to enforce involves the respective rights of the parties post-termination.

Two other points should be made. First, although Concordia originally sought

other injunctive relief, including relief based on the contention that that Pick Enterprises

had also appropriated marketing materials and website architecture belonging to

Concordia, Concordia has not demonstrated a likelihood of success on any issue other

than the issue on which the court has granted relief as set forth below.

Second, the titles of eleven articles on the revised list as to which Concordia seeks

injunctive relief are identical to the titles of certain articles that the 2006 Licensing

3 Agreement specifically awards to Pick Enterprises. Accordingly, the court has deleted

those eleven articles from Concordia's revised list as shown by the additional deletions

on Schedule A attached hereto. Where indexes appear on Schedule A, defendants are

required to remove any articles covered by this order from any indexes appearing on

defendant's website.

The entry shall be:

1. Plaintiff's motion for a preliminary injunction is granted to the extent set forth

below.

2. The Court hereby orders defendants to remove from the womentowomen.com

website and from any other website maintained by defendants, both from the

website and from any index on the website, the articles listed on the attached

Schedule A.

3. This order shall be binding on each of the defendants, their agents, servants,

employees, attorneys, successors and assigns, and upon those persons in active

concert or participation with them who receive actual notice of this order by

personal service or otherwise.

4. This order shall remain in effect, unless modified or vacated by further order of

the court, until the entry of final judgment in this case.

5. There being no showing that this order may cause any financial detriment to

Defendants, the giving of security pursuant to M.R.Civ.P. 65(c) is hereby waived.

6. In all other respects, plaintiff's motion for a preliminary injunction is denied.

7. The Clerk is directed to incorporate this order in the docket by reference

pursuant to Rule 79(a).

4 Dated: December 10 2013

Thomas D. Warren Justice, Superior Court

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