NBA Properties v. John Does

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 21, 1997
• Docket: 97-4069
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 21 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

NBA PROPERTIES,

Plaintiff-Appellant,

v. No. 97-4069 (D.C. No. 97-CV-380-C) VARIOUS JOHN DOES and JANE (D. Utah) DOES, and ABC CORPORATION,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before PORFILIO, EBEL, and LUCERO, Circuit Judges.

Before us is Plaintiff-Appellant N.B.A. Properties’ appeal from the district

court’s denial of its ex parte motion for a temporary restraining order and seizure

and impoundment order, alleging defendants have and will continue to violate

plaintiff’s rights under the Lanham Act, 15 U.S.C. § 1051, et. seq., in connection

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. with the sale of merchandise bearing the trademarks, service marks, trade names

and/or logos of the National Basketball Association. Also before us is plaintiff’s

emergency application to this court for an ex parte temporary restraining order,

seizure and impoundment order and order to show cause for a preliminary

injunction pursuant to the Lanham Act. We have jurisdiction pursuant to

28 U.S.C. § 1292(a)(1), and we reverse.

Having considered the materials submitted by plaintiff, we conclude that

the district court’s finding that plaintiff is unable to identify any specific location

or property at which the temporary restraining order and seizure and

impoundment order may be directed is not supported by the record. We also

conclude that plaintiff’s motion for an ex parte temporary restraining order and

seizure and impoundment order satisfied the statutory requirements for an ex

parte temporary restraining order and seizure and impoundment order and

satisfied the Fourth Amendment requirements. See 15 U.S.C. § 1116(d)(4)(B);

Gucci America, Inc. v. Accents, 955 F. Supp. 279, 282 (S.D.N.Y. 1997) (holding

that the statutory requirements under 15 U.S.C. § 1116(d)(4)(B) satisfy Fourth

Amendment requirements; citing Reebok Intern. Ltd. v. Su Youn Pak, 683

F. Supp. 929 (S.D.N.Y., 1987)).

2 -2- Accordingly, the order of the United States District Court for the District of

Utah is REVERSED, and the case is REMANDED to the district court for

expedited proceedings consistent with this order and judgment and to fashion

appropriate relief sufficient to protect the plaintiff’s interest under the Lanham

Act. Plaintiff’s Emergency Application is DENIED.

Entered for the Court

John C. Porfilio Circuit Judge

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