Momento, Inc. v. Seccion Amarilla USA, 2009 WL 799405 (N.D. Cal. 2009)

There was a decision in the Northern District of California on March 24 that shows how some district courts are either electing not to apply Winter v. National Resources Defense Council in copyright actions, or are just seeking to avoid reversible error in situations where it’s not necessary.

Momento published Spanish-language yellow pages in Northern California.  The company created some of its own advertisements by preparing and translating text, designing layouts and taking photographs. Momento alleged that Seccion Amarilla, a rival Spanish-language phone book publisher, infringed its advertisements.

Memento filed a complaint seeking an ex-parte temporary restraining order.  Judge Saundra Brown Armstrong of the Northern District of California denied the motion, but set an expedited briefing schedule for a temporary restraining order, giving Seccion a day to respond after service.

Legal Standard for a TRO

Judge Armstrong set forth the standard for issuing an ex-parte TRO as follows:

The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Denial

The Court rejected the TRO for two reasons.  First, Judge Armstrong found that Memento had failed to allege that Seccion had a history of disposing of evidence or violating court orders:

[P]laintiffs must show that defendants would have disregarded a direct court order and disposed of the goods within the time it would take for a hearing … [and] must support such assertions by showing that the adverse party has a history of disposing of evidence or violating court orders or that persons similar to the adverse party have such a history. . .  In an action for copyright infringement, irreparable harm may be presumed upon a copyright owner’s demonstration that it is likely to succeed on the merits of its copyright infringement claim. Here, even if Momento were to demonstrate both success on the merits and irreparable harm, it fails to demonstrate the immediacy of any such harm.

Secondly, the Court found that Momento had failed to explain the efforts it made to give notice and, why it shouldn’t be required.

Winter v. National Resources Defense Council

Judge Armstrong’s decision is somewhat interesting given that she didn’t address the June 2008 Supreme Court opinion in Winter v. National Resources Defense Council.  Some district courts have read the recent opinion as eliminating the practice of granting a plaintiff in a copyright action moving for preliminary injunctive relief a presumption of irreparable harm, upon a showing of likelihood of success on the merits. See, e.g. Inspection Management Systems, Inc. v. Open Door Inspections, Inc., 2009 WL 805813 (E.D.Cal. 2009); Jacobsen v. Katzer et al, 2009 WL 29881 (N.D. Cal. 2009); Scentsy, Inc. v. Performance Mfg., Inc., 2009 WL 320334(D.Idaho 2009).