1 2 3
7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 LAMPS PLUS, INC., Case No.: 2:24-cv-07435-CBM-(PDx)
12 Plaintiff, ORDER TO SHOW CAUSE RE v. 13 PRELIMINARY INJUNCTION [18] LAMPS PRO, LLC; RUBEN COHEN; 14 CHRISTOPHER BRYAN; GILDA LLANES; HEMANT KOHLI; and 15 DOES 1-5, inclusive,
16 Defendant.
20 21 22 23 24 25 26 27 28 1 The matter before the Court is Plaintiff Lamps Plus, Inc.’s Ex Parte 2 Application for a Preliminary Injunction.1 (Dkt. No. 17 (“Motion”).) 0 3 I. BACKGROUND 4 Plaintiff Lamps Plus, Inc. (“Lamps Plus”) filed this trademark and trade 5 secrets misappropriation case against Defendants Lamps Pro, LLC, Ruben Cohen, 6 Christopher Bryan, Gilda Llanes, Hemant Kohli, and Does 1-5. Plaintiff brings 7 thirteen claims: (1) trademark infringement under the Lanham Act (15 U.S.C. § 8 1114); (2) unfair competition, false designation of origin, and false descriptions and 9 representations under the Lanham Act (15 U.S.C. § 1125); (3) common law 10 trademark infringement and unfair competition; (4) trademark dilution under the 11 Lanham Act (15 U.S.C. § 1125(c)); (5) cancellation of trademark registration under 12 the Lanham Act (15 U.S.C. § 1119); (6) cyberpiracy under the Lanham Act (15 13 U.S.C. § 1125(d)); (7) breach of contract; (8) violation of the Defend Trade Secrets 14 Act (“DTSA”); (9) violation of California’s Uniform Trade Secrets Act 15 (“CUTSA”); (10) intentional interference with prospective economic relations; (11) 16 conversion; (12) unfair competition under Cal. Bus. & Prof. Code §§ 17200 et seq.; 17 and (13) breach of fiduciary duty. Plaintiff’s claims arise from Defendants’ use of 18 the mark “Lamps Pro,” which Plaintiff contends infringes upon its trademarks 19 “Lamps Plus” and “Lamps Plus Pros,” and from Defendants Bryan, Kohli, and 20 Llanes’ purportedly stealing confidential information from Plaintiff and sharing it 21 with Defendant Cohen. (Compl., ¶¶ 11, 17-18.) 22 Plaintiff filed this action on August 30, 2024, and filed the instant Motion on 23 September 27, 2024. 24 II. STATEMENT OF THE LAW 25 1 Plaintiff filed an ex parte application for a temporary restraining order and for an 26 order to show cause re preliminary injunction. The Court previously denied 27 Plaintiff’s request for a temporary restraining order but granted the request for an order to show cause why a preliminary injunction should not issue. (See Dkt. No. 28 1 A party seeking a preliminary injunction must demonstrate (1) it is likely to 2 succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of 3 injunctive relief, (3) the balance of equities is in its favor, and (4) injunctive relief 4 is in the public interest. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). 5 Alternatively, in the Ninth Circuit, “a party is entitled to a preliminary 6 injunction if it demonstrates (1) serious questions going to the merits, (2) a 7 likelihood of irreparable injury,” (3) a balance of hardships that tips sharply towards 8 the plaintiff, and (4) the injunction is in the public interest.” Flathead-Lolo- 9 Bitterroot Citizen Task Force v. Montana, 98 F.4th 1180, 1190 (9th Cir. 2024) 10 (internal quotations and citations omitted). “As to the first factor, the serious 11 questions standard is ‘a lesser showing than likelihood of success on the merits.’” 12 Id. (quoting All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017)). 13 Therefore, “[t]he ‘serious questions’ standard permits a district court to grant a 14 preliminary injunction in situations where it cannot determine with certainty that 15 the moving party is more likely than not to prevail on the merits of the underlying 16 claims, but where the costs outweigh the benefits of not granting the injunction.” 17 All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1133 (9th Cir. 2011). 18 III. DISCUSSION 19 A. Likelihood of Success on the Merits 20 Trademark Infringement 21 The Lanham Act “creates a comprehensive framework for regulating the use 22 of trademarks and protecting them against infringement, dilution, and unfair 23 competition.” Punchbowl, Inc. v. AJ Press, LLC, 90 F.4th 1022, 1027 (9th Cir. 24 2024). “Traditionally, courts apply a likelihood-of-confusion test to claims brought 25 under the Lanham Act.” Id. In the Ninth Circuit, this test contains eight factors 26 articulated in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), abrogated 27 on other grounds by Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 810 28 n.19 (9th Cir. 2003), as follows: “(1) strength of the mark; (2) proximity of the 1 goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing 2 channels used; (6) type of goods and the degree of care likely to be exercised by the 3 purchaser; (7) defendant’s intent in selecting the mark; and (8) likelihood of 4 expansion of the product lines.” 5 a) Strength of the Marks 6 “Marks are generally classified in one of five categories of increasing 7 distinctiveness: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) 8 fanciful.” Zobmondo Ent., LLC v. Falls Media, LLC, 602 F.3d 1108, 1113 (9th Cir. 9 2010). “Which category a mark belongs in is a question of fact.” Id. “Suggestive, 10 arbitrary, and fanciful marks are considered ‘inherently distinctive’ and are 11 automatically entitled to federal trademark protection because ‘their intrinsic nature 12 serves to identify a particular source of a product.’” Id. “Merely descriptive marks 13 are . . . not inherently distinctive and are therefore not entitled to automatic 14 trademark protection,” but “can become protectable if it has acquired distinctiveness 15 ‘as used on or in connection with the applicant’s goods in commerce.’” Id. 16 Here, Plaintiff argues that both the “Lamps Plus” and “Lamps Plus Pros” 17 marks are inherently distinctive (i.e., suggestive). Plaintiff offers the declaration of 18 Mary Jensen, its Chief Growth Officer, attesting that the words “LAMPS PLUS” 19 do not describe goods and services sold by Plaintiff, but “suggests that Lamps Plus 20 offers more than just lamps” and that its “goods and services are superior to those 21 of its competitors.” (Dkt. No. 19 (“Jensen Decl.”), ¶ 29.) Jensen also attests that 22 Plaintiff has “exclusively used its LAMPS PLUS trademark” for 48 years. (Id., 23 ¶ 25.) Defendants, on the other hand, offer the trademark registration for “LAMPS 24 PLUS,” which states that “no claim is made to the exclusive right to use ‘lamps,’ 25 apart from the mark as shown.” (Dkt. No. 31-3 (“Davis Decl.”), Ex. 1.) The Court 26 finds that Plaintiff has established the “Lamps Plus” mark is strong. Plaintiff has 27 used this mark for several years, and as Plaintiff notes in its Motion, the mark has 28 become incontestable. Defendants’ evidence does not show otherwise. 1 As for “Lamps Plus Pros,” there is a factual dispute as to whether Plaintiff 2 currently uses this mark in the hospitality industry. The Jensen Declaration states 3 that “[i]n 2019, Lamps Plus’ professional trade division rebranded as Lamps Plus 4 Pros,” and that Lamps Plus “continues to serve” customers in the hospitality 5 industry “through its Lamps Plus Pros and Lamps Plus service brands.” (Jensen 6 Decl., ¶ 19, 23.) But Defendants offer evidence indicating that Plaintiff has exited 7 the hospitality business altogether. (Dkt. No. 31-1 (“Bryan Decl.”), ¶ 9, 14; Dkt. 8 No. 31-2 (“Cohen Decl.”), ¶¶ 11, 14.) Because of this factual dispute, the Court 9 finds that at this stage, Plaintiff has not shown the “Lamps Plus Pros” mark is strong. 10 See Int’l Molders’ & Allied Workers’ Loc. Union No. 164 v. Nelson, 799 F.2d 547, 11 551 (9th Cir. 1986) (“In deciding a motion for a preliminary injunction, the district 12 court is not bound to decide doubtful and difficult questions of law or disputed 13 questions of fact.”) (internal quotations and citation omitted). 2 1 14 Therefore, this factor is slightly in favor of consumer confusion with respect 15 to Lamps Plus, and neutral with respect to Lamps Plus Pros, at this stage in the 16 litigation. 17 b) Proximity of the Goods 18 “For related goods, the danger presented is that the public will mistakenly 19 assume there is an association between the producers of the related goods, though 20 no such association exists. [citation]. The more likely the public is to make such 21 an association, the less similarity in the marks is requisite to a finding of likelihood 22 of confusion.” Sleekcraft, 599 F.2d at 350. The Ninth Circuit has found the 23 proximity of goods factor satisfied where the goods and services “are extremely 24 close in use and function” and “overlap.” Id. 25
26 2 As for commercial strength of the marks, that “is a fact-intensive inquiry that need 27 not be reached at the preliminary injunction stage.” Good Meat Project v. GOOD Meat, Inc., 2024 WL 1083462, at *5 (N.D. Cal. Feb. 12, 2024). Therefore, the Court 28 1 Both parties sell lighting products, including custom lighting products, to 2 consumers. Plaintiff offers evidence in the Jensen Declaration that when Plaintiff 3 closed its “Lamps Plus Hospitality (Pacific Coast Contract Lighting) division,” it 4 “continue[d] to serve these same customers through its Lamps Plus Pros and Lamps 5 Plus service brands.” (Jensen Decl., ¶ 23.) But Defendants offer evidence 6 indicating that Plaintiff exited the hospitality industry altogether,3 and that in 7 contrast, Defendants sell custom lighting products “exclusively . . . to the hospitality 8 sector.” (Cohen Decl., ¶ 15.) Because there is a factual dispute as to whether the 9 parties sell the same goods and services to the same consumers, the Court finds that 10 at this stage, Plaintiff has not shown this factor weighs in favor of confusion. 11 c) Similarity of the Marks 12 “Similarity of the marks is tested on three levels: sight, sound, and meaning. 13 [citation]. Each must be considered as they are encountered in the marketplace. 14 Although similarity is measured by the marks as entities, similarities weigh more 15 heavily than differences.” Sleekcraft, 599 F.2d at 351. In Sleekcraft, the Ninth 16 Circuit found that the words “Sleekcraft” and “Slickcraft” were similar in sound and 17 sight. Id. However, the court agreed with the defendants that “the distinctive logo 18 on his [products] negates the similarity of the words,” but noted that “the logo is 19 often absent” and the name appears on its own. Id. In GoTo.com, Inc. v. Walt 20 Disney Co., 202 F.3d 1199 (9th Cir. 2000), the Ninth Circuit found similarity of the 21 marks met because “[w]ith a single glance at the two images, one is immediately 22 struck by their similarity. Both logos consist of white capital letters in an almost 23 24
25 3 See Cohen Decl., ¶¶ 11-14 (stating that Plaintiff “publicly announced on its website that it was closing its hospitality business,” that Plaintiff’s hospitality 26 customers told Cohen Plaintiff closed this business, that Cohen purchased “all 27 inventory associated with Lamps Plus’s” inventory for certain hotels and the “supporting materials” for that inventory, and that Plaintiff did not attend the 28 1 identical sans serif font rendered on a green circle. The circle in turn is matted by 2 a square yellow background.” Id. at 1206. 3 Here, when viewed in conjunction with Lamps Pro’s logo, the marks are 4 dissimilar in sight—they are written with different font and Defendants’ logo has a 5 particular design as well as the tagline “THE BRIGHT CHOICE.” Plaintiff submits 6 a screenshot of “LAMPS PRO” in plain capitalized text without the logo, but it is 7 unclear where this comes from and whether, how often, and in what contexts 8 Defendants use this mark on its own, without the logo. At the hearing on the 9 Motion, Defendants stated that it is unclear when and in what contexts “Lamps Pro” 10 is used without the design logo. Plaintiff’s own screenshot of Lamps Pro’s website 11 shows the mark and logo prominently displayed together. (Jensen Decl., ¶ 55.) 12 Even taking only the words into account, the Court notes that the “presentation of 13 the marks differs in terms of prominence, font, size, and capitalization.” Pom 14 Wonderful, 775 F.3d at 1129 (weighing these characteristics when analyzing 15 similarity factor). 16 The marks “Lamps Plus” and “Lamps Pro” are also dissimilar in sound, as 17 one ends in “plus” and the other “pro.” However, “Lamps Plus Pros” and “Lamps 18 Pro” are quite similar in sound. But as Defendants note, “[w]hen the commonality 19 between composite marks is a term that is, by itself, descriptive, courts find the 20 likelihood of confusion reduced.” 4 James R. Glidewell Dental Ceramics, Inc. v. 2 21 Keating Dental Arts, Inc., 2013 WL 655314, at *7 (C.D. Cal. Feb. 21, 2013) 22 (collecting cases). 23 Therefore, this factor appears to be neutral or at best, slightly in favor of 24 confusion. 25 d) Marketing channels 26
27 4 As Defendant notes, the trademark registry “shows that there are at least 241 different active trademarks that include the word LAMP as part of the trademark” 28 1 “In assessing marketing channel convergence, courts consider whether the 2 parties’ customer bases overlap and how the parties advertise and market their 3 products.” Pom Wonderful LLC, 775 F.3d at 1130. “Marketing channels can 4 converge even when different submarkets are involved so long as ‘the general class 5 of ... purchasers exposed to the products overlap.’” Id. However, “[t]he mere 6 existence of online advertising does not shed much light on consumer confusion 7 because it would be the rare commercial retailer that did not advertise online.” Quia 8 Corp. v. Mattel, Inc., 2011 WL 2749576, at *4 (N.D. Cal. July 14, 2011) (internal 9 quotations omitted); see also Network Automation, 638 F.3d at 1151 (“Today, it 10 would be the rare commercial retailer that did not advertise online, and the shared 11 use of a ubiquitous marketing channel does not shed much light on the likelihood 12 of consumer confusion.”); Playboy Enterprises, Inc. v. Netscape Commc’ns Corp., 13 354 F.3d 1020, 1028 (9th Cir. 2004) (finding that use of the Internet to market goods 14 “merits little weight,” [g]iven the broad use of the Internet today”). 15 Here, Plaintiff offers evidence that it advertises online—specifically, on its 16 websites (www.lampsplus.com and www.lampsplus.com/pros) and through social 17 media platforms like “Instagram, X (Twitter), Facebook, YouTube, and LinkedIn,” 18 and that Defendants also use an online website to market Lamps Pro. (Jensen Decl., 19 ¶¶ 39, 41, 55.) This is not sufficient to show marketing channel convergence. See 20 Network Automation, 638 F.3d at 1151. Jensen further declares that Lamps Pro is 21 registered to attend certain upcoming trade shows, and speculates that Plaintiff’s 22 customers, who are also attending the trade shows, will be confused because they 23 will not “understand the difference” between the two companies. (Jensen Decl., ¶¶ 24 56, 58-59.) Defendants offer evidence that Plaintiff “purchased a large booth to 25 attend” a design trade show called “HD Expo,” yet did not attend. (Cohen Decl, ¶ 26 14.) Cohen also declares that Lamps Pro markets “primarily at these trade shows, 27 not through online marketing.” (Id., ¶ 8.) At the hearing on the Motion, Plaintiff 28 confirmed that it does not plan to attend the upcoming trade shows—it only seeks 1 to bar Defendants from attending the trade shows under the name “Lamps Pro.” 2 Plaintiff also confirmed during the hearing that to date, it has not attended any trade 3 shows that Lamps Pro has attended. The Court finds that at this stage, it is not clear 4 whether there is marketing channel convergence. 5 Accordingly, Plaintiff has not shown this factor weighs in favor of confusion. 6 e) Consumer sophistication 7 Plaintiff concedes that this factor is neutral. Defendants argue that its 8 customers are sophisticated and submits the Cohen Declaration in support, which 9 attests that Lamps Pro “exclusively sells custom-made and unique lighting products 10 to the hospitality sector” and its customers “work[] collaboratively” with Lamps Pro 11 on those products and “rarely make one-off purchases. (Cohen Decl., ¶¶ 4, 15.) As 12 mentioned above, the evidence submitted by both sides indicate a factual dispute 13 regarding whether Lamps Plus continues to sell to the hospitality industry. If Lamps 14 Plus does continue to maintain a hospitality lighting business, the consumers in this 15 industry are sophisticated and are less likely to be confused by the two marks. 16 Therefore, the Court finds that at this stage, Plaintiff has not shown this factor 17 weighs in favor of confusion. 18 f) Intent 19 The Jensen Declaration attests that Jensen “believe[s] that Lamps Pro uses 20 the infringing marks to manufacture, advertise, market, offer, and sell goods and 21 services in the lighting industry that are identical or highly related to the goods and 22 services . . . by Lamps Plus.” (Jensen Decl., ¶ 51.) Plaintiff submits no other 23 evidence indicating that Defendants intended to confuse consumers by selecting the 24 Lamps Pro mark. Defendants submit evidence in the Cohen Declaration that Cohen 25 created Lamps Pro “without any intent to trade off Plaintiff’s good will,” that he 26 chose the name “Lamps Pro” back in December 2023, that he’d explored other 27 names before settling on “Lamps Pro,” that he secured the domain name for Lamps 28 Pro in February 2024, and that the first time he heard about the Lamps Plus Pro 1 brand was on a May 21, 2024 discussion with Bruce Nelson, VP of Operations for 2 Lamps Plus Hospitality. (Cohen Decl., ¶¶ 9-10.) In response, Plaintiff argues that 3 other circumstantial evidence suggests Cohen did know of Lamps Plus Pro earlier 4 than stated in the Cohen Declaration. (Dkt. No. 35 at 6.) 5 Because the evidence at this stage indicates a factual dispute regarding 6 whether Defendants intended to confuse customers by selecting the mark “Lamps 7 Pro,” Plaintiff has not shown this factor weighs in favor of confusion. See Pom 8 Wonderful, 775 F.3d at 1131 (finding that failure to prove intent, actual confusion, 9 or product expansion results in these factors being neutral, rather than against the 10 plaintiff). 11 g) Actual confusion 12 “A showing of actual confusion among significant numbers of consumers 13 provides strong support for the likelihood of confusion.” Network Automation, 638 14 F.3d at 1151 (brackets omitted). “However, ‘actual confusion is not necessary to a 15 finding of likelihood of confusion under the Lanham Act.’ [citations]. Indeed, 16 ‘proving actual confusion is difficult ... and the courts have often discounted such 17 evidence because it was unclear or insubstantial.’” Id. (internal brackets and 18 citations omitted). 19 Here, Plaintiff submits three instances of actual consumer confusion amongst 20 its customers, including one instance from a hotel manager in the hospitality 21 industry. (Jensen Decl., ¶¶ 64-66.) In Equinox Hotel Mgmt., Inc., 2018 WL 659105 22 at *7, the court found that “eleven incidents” of confusion from potential clients, 23 industry journalists, and a vendor constituted “sporadic episodes” were “insufficient 24 to support a finding of actual confusion.” Accordingly, the Court finds that Plaintiff 25 has not shown this factor weighs in favor of confusion. 26 h) Likelihood of expansion 27 Plaintiff submits the Jensen Declaration, which attaches Exhibit R, Cohen’s 28 trademark application for “Lamps Pro Lighting.” The trademark application 1 identifies “[r]etail store services” as a “class” of goods and services. (Dkt. No. 19- 2 18 (“Exhibit R”) at 8.) Plaintiff contends that Lamps Pro’s trademark application 3 reflects Lamps Pro’s intention to expand into the retail lighting sales market, as well 4 as “interior design consultations,” and Plaintiff “offers these same services.” (Mot. 5 at 28.) Defendants submit the Cohen Declaration, which states that Lamps Pro has 6 “no current plans to expand Lamps Pro’s product line or to sell in the retail 7 industry.” (Cohen Decl., ¶ 15.) Defendants contend that Plaintiff’s evidence is not 8 enough to show a “strong possibility” that “either party will expand their business 9 to compete with the other.” (Opp. at 27.) 10 The evidence at this stage indicates a factual dispute as to whether Lamps Pro 11 is likely to expand into retail sales. Therefore, this factor is neutral and Plaintiff has 12 not shown the factor weighs in favor of confusion. 13 * * * 14 The analysis above indicates that two of eight Sleekcraft factors weigh in 15 favor of confusion, while the remaining six factors do not weigh in favor of 16 confusion at this stage. This is largely because there are factual disputes that affect 17 the Sleekcraft analysis and go to the heart of Plaintiff’s trademark infringement 18 claims; thus, Plaintiff has not shown a likelihood of success on the merits of those 19 claims. See Equinox Hotel Mgmt., 2018 WL 659105 at *9 (denying preliminary 20 injunction where “the likelihood of success cannot be determined on the current 21 record,” which showed that four out of the Sleekcraft factors favored defendants, 22 two were neutral, and three favored plaintiff). 23 Breach of Contract 24 “A cause of action for breach of contract requires proof of the following 25 elements: (1) existence of the contract; (2) plaintiff’s performance or excuse for 26 nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of 27 the breach.” ProMex, LLC v. Hernandez, 781 F. Supp. 2d 1013, 1017 (C.D. Cal. 28 2011). 1 Plaintiff submits the Jensen Declaration, which attest that the “Employee 2 Defendants stole Lamps Plus’ drawings, customer lists, pricing lists, and other trade 3 secret information prior to their departure. While they were still employed by 4 Lamps Plus, they sent an email correspondence to PCL’s customers stating that 5 Lamps Pro, would fulfill their future orders and honor all of Lamps Plus 6 Hospitality’s prices as its ‘partner company.’ However, Lamps Pro is not a partner 7 company of Lamps Plus.” (Jensen. Decl., ¶ 49.) 8 Defendants submit evidence that Lamps Pro “legitimately purchased” 9 materials “directly from Plaintiff”—the Cohen Declaration states that after Lamps 10 Plus announced it was shutting down its hospitality sector, Cohen made an 11 “aggressive offer of $250,000 for all inventory associated with” Lamps Plus’ 12 inventory for certain hotel chains. (Cohen Decl, ¶ 12.) This purchase was approved 13 by Plaintiff’s Chief Executive Officer, as communicated by Defendant Bryan to 14 Cohen. (Id.) Cohen also attests that he purchased “more than just Plaintiff’s 15 inventory,” and that he also bought “supporting materials,” which included “native 16 drawing files, product images, and product designs.” (Id, ¶ 13.) 17 The evidence submitted at this stage reflects a factual dispute regarding 18 whether the Employee Defendants breached their confidentiality agreements, as it 19 is unclear whether Lamps Pro came into possession of certain information by way 20 of a legitimate purchase from Lamps Plus or by way of stolen information obtained 21 from the Employee Defendants. Accordingly, Plaintiff has not demonstrated a 22 likelihood of success on the merits of its breach of contract claim at this stage. See 23 Int’l Molders’ & Allied Workers’ Loc. Union No. 164, 799 F.2d at 551; see also 24 Purdum, 2014 WL 171546, at *6 (finding plaintiffs failed to demonstrate a 25 likelihood of success on the merits whether there were disputed questions of fact); 26 Hansen Beverage Co., 2008 WL 5427601, at *4 (same); Arthur J. Gallagher, & 27 Co., 2008 WL 205274, at *2 (same); SoftMan Prods. Co, LLC, 171 F. Supp. 2d at 28 1093 (same). 1 B. Serious Questions Going to the Merits 2 An alternative “serious questions” standard applies in the Ninth Circuit where 3 “a party is entitled to a preliminary injunction if it demonstrates (1) serious 4 questions going to the merits, (2) a likelihood of irreparable injury,” (3) a balance 5 of hardships that tips sharply towards the plaintiff, and (4) the injunction is in the 6 public interest.” Flathead-Lolo-Bitterroot, 98 F.4th at 1190; All. for the Wild 7 Rockies, 865 F.3d at 1217. The “serious questions” standard is “a lesser showing 8 than likelihood of success on the merits.” Flathead-Lolo-Bitterroot, 98 F.4th at 9 1190. 10 Because there are factual disputes related to Plaintiff’s trademark 11 infringement and breach of contract claims, there are serious questions going to the 12 merits of Plaintiff’s claims. Therefore, the Court next analyzes (1) whether there is 13 a likelihood of irreparable harm, (2) whether the balance of hardships tips sharply 14 in favor of Plaintiffs, and (3) whether a preliminary injunction is in the public 15 interest. Flathead-Lolo-Bitterroot Citizen Task Force, 98 F.4th at 1190; All. for the 16 Wild Rockies, 632 F.3d at 1133. 17 C. Irreparable Harm 18 “A preliminary injunction is sought upon the theory that there is an urgent 19 need for speedy action to protect the plaintiff’s rights. By sleeping on its rights a 20 plaintiff demonstrates the lack of need for speedy action.” Lydo Enterprises, Inc. 21 v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984). In The Real USFL, LLC 22 v. Fox Sports, Inc., 2022 WL 1134487, at *11 (C.D. Cal. Apr. 14, 2022), the Court 23 denied Plaintiff’s motion for a preliminary injunction because it found that 24 “Plaintiff’s delay in bringing this action demonstrate[d] the lack of irreparable 25 harm.” Id. The court noted that “Plaintiff relies on ‘ongoing conversations’ with 26 Defendants in order to resolve the matter as the reason for the delay,” yet evidence 27 was “undisputed” that Defendants were “clear from the outset [that] they were 28 adamant . . . that they had the absolute and unfettered rights to use the Marks.” Id.; 1 see also AEG Holdco, LLC v. Vazquez, 2021 WL 4352343, at *2 (C.D. Cal. Aug. 9, 2 2021) (denying request for TRO because plaintiffs waited about three months after 3 it discovered alleged misappropriation of trade secrets to move for an emergency 4 TRO, and finding that this “significantly undermines Plaintiff’s claimed imminent 5 irreparable injury in the absence of the requested TRO.”). 6 Here, Plaintiff has not shown a likelihood of success on the merits on the 7 record currently before the Court. Therefore, no presumption of irreparable harm 8 applies. See 15 U.S.C.A. § 1116. Further, Defendant Cohen filed his application 9 to register the mark at issue on March 8, 2024. (Opp. at 14 (citing Cohen Decl., 10 ¶ 10).) Plaintiff did not file this action until August 30, 2024. Plaintiff did not file 11 the instant Motion requesting emergency relief until September 27, 2024. The delay 12 in seeking immediate relief suggests there is no irreparable harm. Plaintiff argues 13 that it attempted resolve the dispute out of court through a series of letters exchanged 14 with Defendants between July 2024 and August 2024. Like in The Real USFL, it is 15 clear from the letters exchanged between counsel that Defendants were “adamant” 16 that they had the right to use the marks at issue. (See Dkt. Nos. 18-2, 18-3.) Upon 17 discovering on August 22, 2024 that Lamps Pro “published its lampspro.com 18 website to the public and indicated its intent to exhibit at two upcoming 19 tradeshows,” Plaintiff “promptly filed this lawsuit on August 30, 2024” (Mot. at 20 16)—however, Plaintiff did not bring the instant Motion until almost a month later. 21 As to the breach of contract claim, the Complaint alleges that each Employee 22 Defendant entered into a “Separation Agreement” with Plaintiff that included terms 23 prohibiting the Employee Defendants from retaining or divulging any “proprietary 24 or confidential information” of Plaintiff’s. (Compl., ¶ 69.) The Complaint alleges 25 that Plaintiff sent a cease-and-desist letter on June 21, 2024 to each Employee 26 Defendant stating that Plaintiff had “reason to believe that [the Employee 27 Defendant] had downloaded and/or sent Stolen Information from Lamps Plus’ 28 internal systems to themselves.” (Id., ¶ 71.) The Complaint defines “Stolen 1 Information” as “confidential information, proprietary information, and trade 2 secrets” that the Employee Defendants “took possession of,” but does not otherwise 3 specify what that information is. (Id., ¶ 17.) In its Motion, Plaintiff argues that the 4 stolen confidential information includes “customer information, and pricing, 5 manufacturing information.” (Mot. at 29.) Within these categories, Plaintiff does 6 not identify what specific pieces of information Defendants allegedly stole. 7 Defendants contend that the information alluded to in the Complaint is “not 8 considered confidential or secret in the industry,” and that Cohen purchased certain 9 information from Plaintiff. (Cohen Decl., ¶¶ 6, 13.) Therefore, disputed facts exist 10 regarding whether Defendants stole any confidential information. 11 Moreover, Plaintiff has not submitted any evidence of irreparable harm 12 actually occurring. The Jensen Declaration states that “current and potential clients 13 who engage with Lamps Pro-branded service expecting a Lamps Plus brand 14 experience will be likely disappointed” and references the three instances of 15 confusion described above. (Jensen Decl., ¶¶ 62-66.) Though “[e]vidence of loss 16 of control over business reputation and damage to goodwill could constitute 17 irreparable harm,” a district court’s “analysis of irreparable harm” must be 18 “grounded in [] evidence” of such harm. Herb Reed Enterprises, LLC v. Fla. Ent. 19 Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013). The statement in the Jensen 20 Declaration does not provide evidence of such harm and only offers “conclusory or 21 speculative allegations,” which are not sufficient to show irreparable harm. Equinox 22 Hotel Mgmt., 2018 WL 659105, at *9; see also Herb Reed Enterprises, 736 F.3d at 23 1250 (finding evidence of potential customers complaining about possible 24 confusion is evidence that “simply underscores customer confusion, not irreparable 25 harm”). 26 Accordingly, Plaintiff has not shown irreparable harm. Therefore, the Court 27 need not reach the balance of equities or public interest. Herb Reed Enterprises, 28 736 F.3d at 1251 (“In light of our determination that the record fails to support a 1 | finding of likely irreparable harm, we need not address the balance of equities and 2 | public interest factors.”). 3 IV. CONCLUSION 4 Accordingly, the Court DENIES Plaintiff's request for a preliminary 5 | injunction. 6 7 IT IS SO ORDERED. 8 9 | DATED: OCTOBER 23, 2024 Ce 2 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16