This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

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 here.

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 injunction determination.

The hearing on Rovio's motion for a preliminary injunction is scheduled for today, November 21, 2012. We will continue to monitor this case.

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