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Global Merchandising Services, Ltd. v. Does

United States District Court, D. Massachusetts

September 4, 2018

GLOBAL MERCHANDISING SERVICES, LTD, Plaintiff,
v.
VARIOUS JOHN DOES, JANE DOES, and ABC COMPANIES, Defendants.

          TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE, AND ORDER OF SEIZURE

          F. Dennis Saylor IV United States District Judge.

         For good cause shown:

         IT APPEARING TO THE COURT that Defendants are distributing and/or are about to distribute in interstate commerce and sell at or near the sites of the current OZZY OSBOURNE United States concert tour, clothing, jewelry, photographs, posters, and other merchandise (collectively, the “Infringing Merchandise”) bearing the OZZY OSBOURNE trademark, likeness and logos (collectively, the “Musical Performer's Trademarks”) and will continue to carry out such acts unless restrained by Order of the Court;

         AND IT APPEARING TO THE COURT that immediate and irreparable injury, loss and damage will result to Plaintiff before Defendants can be identified and given notice and their attorneys can be heard in opposition to the granting of the Temporary Restraining Order, in that Defendants are preparing to manufacture, distribute and sell the Infringing Merchandise throughout the current OZZY OSBOURNE concert tour and that unless Defendants are enjoined from said manufacture, distribution, and sale, Plaintiff will suffer immediate and irreparable injury and harm in the form of loss of income, the dilution of the Musical Performer's Trademarks, interference with Plaintiff's ability to exploit market and license its merchandising rights, confusion in the marketplace as to the duly authorized source of OZZY OSBOURNE merchandise, and the impairment of the goodwill that Plaintiff and OZZY OSBOURNE have in the Musical Performer's Trademarks;

         IT IS HEREBY ORDERED that Defendants, Various John Does, Jane Does and ABC Companies, their true identities being unknown, show cause on September, 11, 2018, at 3:00 p.m., in Courtroom 2 at the United States District Court for the District of Massachusetts, 1 Courthouse Way, Boston, Massachusetts, why an order pursuant to Fed.R.Civ.P. 65 and 15 U.S.C. Section 1051 et seq. should not be entered granting Plaintiff a preliminary injunction enjoining Defendants from manufacturing, distributing, selling, or holding for sale and authorizing seizure of all Infringing Merchandise bearing the Musical Performer's Trademarks;

         IT IS HEREBY ORDERED that pending the hearing and determination of this Motion, Defendants, their agents, servants, employees, attorneys, successors, and assigns, and all persons, firms and corporations acting in concert with them, are temporarily restrained from manufacturing, distributing, and selling Infringing Merchandise bearing the Musical Performer's Trademarks;

         IT IS FURTHER ORDERED that the U.S. Marshal for this District, or any district in which Plaintiff enforces this order, the state police, local police or local deputy sheriffs, off duty officers of the same and persons acting under their supervision, are hereby authorized to seize, impound (and deliver to Plaintiff or its representatives), any and all Infringing Merchandise bearing the Musical Performer's Trademarks, including from cartons, containers, or vehicles or other means of transport in which the Infringing Merchandise is found beginning six hours before and continuing until three hours after any performance on any concert on the OZZY OSBOURNE tour within a one-mile radius of the concert on the OZZY OSBOURNE tour including, but not limited to, the OZZY OSBOURNE concert at the Xfinity Center, Mansfield, Massachusetts on September 6, 2018;

         AND IT IS FURTHER ORDERED that this Order is hereby conditioned upon Plaintiff filing with the Clerk of this Court, an undertaking, a surety bond or a certified, cashiers or attorneys' check, credit card or cash in the amount of $5, 000 no later than September 5, 2018 to secure payment of such costs and damages not to exceed such sum as may be suffered or sustained by any party who is found to be wrongfully restrained hereby;

         AND IT IS FURTHER ORDERED that this Temporary Restraining Order is conditioned upon Plaintiff advancing to law-enforcement officers such sum as is required to cover the fees for their services, in the event that Plaintiff seeks their services in this or any other district, AND IT IF FURTHER ORDERED that service of a copy of this Order to Show Cause together with the Complaint shall be made upon Defendants by the United States Marshal, or state or local enforcement authority or by any person over the age of 18 years, including Pete Merluzzi, not a party to this action selected for that purpose by Plaintiff, at the time of the seizure provided herein is effected and that such service shall be deemed good and sufficient;

         AND IT IS FURTHER ORDERED that the process server shall offer a receipt to each person from whom merchandise is seized and that Plaintiff shall be deemed substitute custodian for all Infringing Merchandise seized;

         AND IT IS FURTHER ORDERED that each and every Defendant served with a copy of this Order shall promptly, courteously, and peaceably identify himself or herself to the aforementioned process server and that the process server or agents for Plaintiff shall be allowed to photograph, video, or otherwise identify the Defendant;

         AND IT IS FURTHER ORDERED that Defendants' responsive papers, if any, shall be filed with the Clerk of this Court and served upon Plaintiff's attorney by delivering a copy to its counsel on or before September 14, 2018; Any reply shall be filed by Plaintiff and served upon each appearing Defendant or his/her counsel on or before September 21, 2018. Plaintiff shall provide copies of pleadings at the request of any identified Defendant;

         AND IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 65(b)(4), any Defendant may apply to this Court to dissolve or modify this Order on two days' notice or shorter notice as this Court may allow, but no such objection shall serve to suspend this Order or stay the terms hereof unless otherwise ordered by this Court.

         So ...


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