Judge Paul G. Cassell – Motion for TRO denied

KLEIN-BECKER USA, LLC, a Utah Limited Liability Company; KLEIN-BECKER IP HOLDINGS, LLC, a Nevada Limited Liability Company; and BASIC RESEARCH, LLC, a Utah Limited Liability Company, Plaintiffs, vs. VITABASE.COM, LLC, an expired Georgia Limited Liability Company; COAD INC., a Georgia Corporation; OB LABS; GREG HOWLETT, an individual, and JOHN DOES 1-10, Defendants.

2006 U.S. Dist. LEXIS 59292

August 21, 2006

Judge Paul G. Cassell

On August 11, 2006, plaintiff Klein-Becker USA filed a complaint alleging trademark infringement, false advertising under the Lanham Act, copyright infringement, tortious interference with existing and prospective economic relations, unfair competition and civil conspiracy against the named defendants.

Klein-Becker alleges that the named defendants had violated numerous federal and state statutes by manufacturing, distributing and selling anti-stretch mark and anti-aging products that are the same product as that owned by Klein-Becker. Klein-Becker also claimed that defendants use bait-and-switch tactics on their website by advertising and discussing Klein-Becker’s product and then offering their own products comparable to Klein-Becker’s.

Among other claims, Klein-Becker also alleges that it was entitled to a preliminary, and thereafter permanent, injunction against the defendants because it would suffer immediate and irreparable harm. On August 18, 2006, Klein-Becker subsequently moved for a temporary restraining order.

The court held that it is “unable to grant Klein-Becker’s temporary restraining order until it [Klein-Becker] provides certification to the court about efforts it has made to give notice to the defendants, and the reasons supporting the claim that notice was not required.”

Motion for a temporary restraining order denied.

Nevertheless, the court also commented: “The court’s denial of Klein-Becker’s motion for a temporary restraining order does not comment on the chances of any motion for preliminary injunction that it might choose to file in the future. The court does not view the ‘practical effect’ of denying this temporary restraining motion as any decision on the merits of a preliminary injunction motion that might be filed by Klein-Becker at a later time. Indeed, there is every indication that the court ‘contemplates a prompt hearing on a preliminary injunction’ once Klein-Becker serves the defendants and seeks relief from the court through that avenue.”

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