The Northern District of California denied a motion by Rovio
Entertainment Ltd. ("Rovio"), the developer of the video
game Angry Birds, for an ex parte temporary restraining order
("TRO") against alleged counterfeiters of Angry Birds
plush toys, finding insufficient evidence of a likelihood of
immediate and irreparable harm in the absence of such relief. The
full Order, issued by U.S. District Judge Saundra Brown Armstrong
on November 6, can be read
Plush toys comprise a substantial part of Rovio's business;
since late 2010, over thirty million have been sold in the United
States alone. Last month, Rovio brought a copyright and trademark
infringement action against Royal Plush Toys, Inc., Western Sales
and Services Inc., Royal Trade Int'l Inc. and John K. Park
(collectively, "Defendants"), alleging Defendants'
intentional and willful sale of infringing plush toys in violation
of Rovio's copyright and trademark rights. Rovio also moved for
an ex parte TRO enjoining Defendants from manufacturing,
distributing, supplying, or selling infringing merchandise.
Likelihood of irreparable harm is one of four elements that a
moving party must show to obtain a TRO or preliminary injunction.
While earlier courts presumed irreparable harm where a plaintiff
demonstrated a likelihood of success on a copyright or trademark
infringement claim, this presumption has been overruled by the
Ninth Circuit in the context of copyright claims and by district
courts in the Ninth Circuit in the context of trademark
infringement claims. To obtain an ex parte TRO, a movant must also
clearly show that immediate injury will result before the adverse
party can be heard in opposition. Despite Rovio's arguments
that Defendants are likely to destroy or hide evidence, the Court
found that Rovio failed to meet this standard.
After ruling on Rovio's motion for an ex parte TRO, Judge
Armstrong went on to deny Rovio's request for an order
directing the ex parte seizure and impoundment of the allegedly
infringing merchandise and related items, finding that Rovio failed
to establish that such seizure was appropriate. In light of the
serious allegations of counterfeiting made against Defendants, the
Court did order evidence preservation and an expedited hearing
schedule on Rovio's motion for preliminary injunction; however,
it denied Rovio's request for expedited discovery to identify
additional entities working with Defendants and to learn the scope
of Defendants' distribution of the counterfeit plush toys,
finding that Rovio failed to show that the expedited discovery
requested was necessary to obtain a preliminary injunction or
narrowly tailored to obtain information relevant to a preliminary
The hearing on Rovio's motion for a preliminary injunction
is scheduled for today, November 21, 2012. We will continue to
monitor this case.
This alert provides general coverage of its subject area. We
provide it with the understanding that Frankfurt Kurnit Klein &
Selz is not engaged herein in rendering legal advice, and shall not
be liable for any damages resulting from any error, inaccuracy, or
omission. Our attorneys practice law only in jurisdictions in which
they are properly authorized to do so. We do not seek to represent
clients in other jurisdictions.
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The U.S. Supreme Court’s June 19 opinion in Alice Corporation Pty. Ltd. v. CLS Bank Int’l, et al. provided important, additional guidance as to when computer software can be patented under 35 U.S.C. § 101.
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