Las Vegas Sands Corp. v. Fan Yu Ming

360 F. Supp. 3d 1072
CourtDistrict Court, D. Nevada
DecidedJanuary 9, 2019
DocketCase No. 2:18-cv-02306-GMN-CWH
StatusPublished
Cited by5 cases

This text of 360 F. Supp. 3d 1072 (Las Vegas Sands Corp. v. Fan Yu Ming) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Las Vegas Sands Corp. v. Fan Yu Ming, 360 F. Supp. 3d 1072 (D. Nev. 2019).

Opinion

Gloria M. Navarro, Chief Judge

Pending before the Court is the Motion for Preliminary Injunction, (ECF No. 5), as well as the Supplemental Memorandum in Support, (ECF No. 13), filed by Plaintiff Las Vegas Sands Corp. ("Plaintiff"). Defendants have failed to respond to Plaintiff's Motion and the deadline to do so has passed. For the reasons discussed below, Plaintiff's motion is GRANTED .

I. BACKGROUND

This case arises from Defendants' alleged unlawful use of Plaintiff's trademarks in their operation of online casinos. Plaintiff is a Fortune 500 company that owns and operates several properties as casinos and maintains websites on which it markets its hotel and casino services and enables customers to book hotel reservations. (See Mot. for Preliminary Injunction ("Mot. for PI") 3:5-19, ECF No. 5). Plaintiff owns a series of trademark applications and registrations for its Sands and Venetian trademarks. (Id. 3:20-4:8). One of the Sands marks, over which Plaintiff asserts exclusive, common law trademark rights, depicts two Chinese language characters known as a "Jinsha" in connection with its casino and entertainment services. (Id. 4:9-4:2).

According to Plaintiff, Defendants have "set up a network of Internet websites that are accessible to U.S. citizens and are designed to drive Internet users to one or more online casinos unlawfully using" Plaintiff's marks. (Id. 4:22-24). Defendants have further allegedly registered domains (the "Infringing Domains") for unlawful use of Plaintiff's Sands mark "to falsely affiliate the casinos with [Plaintiff] and confuse customers into believing that the websites are" operated or endorsed by Plaintiff. (Id. 4:25-5:2).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 65 governs preliminary injunctions. A preliminary injunction may be issued if a plaintiff establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "Injunctive *1076relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22, 129 S.Ct. 365. The Ninth Circuit has held that " 'serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1132 (9th Cir. 2011).

III. DISCUSSION

Plaintiff seeks a preliminary injunction requiring registries for the Infringing Domains to place the associated domains on hold and lock pending a further order from the Court. (See Mot. for PI 16:4-12). As to Defendants, their failure to file any opposition constitutes consent to the granting of Plaintiff's Motion under this District's local rules.1 See LR 7-2(d); See also Viaview, Inc. v. Blue Mist Media , No. 2:12-cv-1657-GMN-GWF, 2013 WL 12130246, at *1 (D. Nev. Jan. 2, 2013) ; United States v. Walker , 601 F.2d 471, 474 (9th Cir. 1979). As discussed below, the merits of Plaintiff's Motion additionally support the issuance of preliminary injunctive relief.

A. Likelihood of Success on the Merits

To prevail on a trademark infringement claim, a plaintiff must show it is: "(1) the owner of a valid, protectable mark, and (2) that the alleged infringer is using a confusingly similar mark." Herb Reed Enters., LLC v. Fla. Entm't Mgmt., Inc. , 736 F.3d 1239, 1247 (9th Cir. 2013). As to a valid, protectable mark, Plaintiff has put forth a Declaration from Calvin Siemer, Plaintiff's Vice President & Deputy General Counsel, who confirms the validity of Plaintiff's trademark registrations and attaches copies of the same to his Declaration. (See Plaintiff's Trademark Registrations, Ex. A to Siemer Decl., Ex. 1 to Mot. for PI, ECF No. 5-2). Plaintiff holds marks including those identified under Registration Nos. 1,209,102; 3,734,615; 3,838,397; 3,850,500; 2,507,363; 2,507,362; 2,352,445; and 2,655,917. (See id. ). See also Quiksilver, Inc. v. Kymsta Corp. , 466 F.3d 749, 755 (9th Cir. 2006) ("Federal registration of a trademark constitutes prima facie evidence of the validity of the registered mark and of [the registrant's] exclusive right to use that mark in commerce.").

With respect to the likelihood of consumer confusion, courts consider: "(1) strength of the allegedly infringed mark; (2) proximity or relatedness of the goods; (3) similarity of the sight, sound, and meaning of the marks; (4) evidence of actual confusion; (5) degree to which the marketing channels converge; (6) type of the goods and degree of care consumers are likely to exercise in purchasing them; (7) intent of the defendant in selecting the allegedly infringing mark; and (8) likelihood that the parties will expand their product lines." E. & J. Gallo Winery v. Gallo Cattle Co. , 967 F.2d 1280, 1290 (9th Cir. 1992).

i. Strength of the Mark

The stronger a mark, the greater the protection it is accorded by trademark laws. Network Automation, Inc. v. Advanced Sys.

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Bluebook (online)
360 F. Supp. 3d 1072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/las-vegas-sands-corp-v-fan-yu-ming-nvd-2019.