Does The Labor Day Holiday's Mattress Sale Weekend Warrant a Temporary Restraining Order?

IP Blog Post - 092018No.

The owner of the TEMPUR-PEDIC bedding brand ("Plaintiff") has sued a number of defendants, including a former retailer as well as the owner of the THERAPEDIC bedding brand.  Through that lawsuit, Plaintiff seeks to enjoin sales of the THERAPEDIC bedding.

To that end, on August 28, 2018, the Tuesday before the labor day holiday, Plaintiff filed suit.   Along with its complaint, Plaintiff also filed a motion for a temporary restraining order, as well as a motion for a preliminary injunction.  The next day, the Court denied the motion for TRO for failure to comply with Fed. R. Civ. P. 65(b)(1)(B)'s obligation that the filing lawyer certify what efforts she has made to give notice to the defending party, and why notice should not be required.  Notably, the Court also referred the motion for preliminary injunction the magistrate judge to conduct an evidentiary hearing and issue a report and recommendation.

After its motion was denied, Plaintiff's general counsel emailed the retailer defendant's general counsel demanding defendant cease sales, and provided a copy of the motion for TRO as well as the Court's order denying it.  Plaintiff's letter gave defendant one day to comply.  Defendant did not respond.

Plaintiff next renewed its motion for TRO on the evening of August 30, 2018 (the Thursday before the labor day holiday).  Plaintiff included a copy of its letter to the defendant in an attempt to satisfy Fed. R. Civ. P. 65(b)(1)(B).  The next day, Friday, around 11:50am Defendant's counsel contacted the Court and indicated that it wanted to oppose Plaintiff's motion for TRO.  The Court gave defendant until 3pm that day to file its response, which defendant did.

Plaintiff's argument for a TRO was based, in part, on the labor day sales weekend being "one of the bedding industry's biggest sales weekends."  Permitting defendant to sell the allegedly infringing products through this weekend would result in "significant irreparable harm to [Plaintiff's] brand and goodwill."  In response, defendant explained that its limited sales in a single test market, as well as its long standing trademark rights -- predating Plaintiff's trademark rights -- cautioned against the extraordinary remedy of an ex parte temporary restraining order.   The Court agreed with defendant:

The Court is mindful that “[a]n ex parte temporary restraining order is an extreme remedy to be used only with the utmost caution.” Levine v. Comcoa Ltd., 70 F.3d 1191, 1194 (11th Cir. 1995). Given the contested nature of the allegations underpinning Plaintiffs’ argument for a temporary restraining order, as well as Mattress Firm’s request that it be given an opportunity to respond fully before any injunctive relief is granted, the Court denies the Renewed Motion for Temporary Restraining Order. The Court finds that Plaintiffs have not carried their burden for the issuance of a temporary restraining order pursuant to Federal Rule of Civil Procedure 65 and Local Rule 4.05.

While absent from the Court's order, defendant also explained another interesting angle in its responsive brief.  Apparently, the parties have been engaged in separate litigations in Texas state and federal court, where the Texas state litigation is due to begin trial later this month.  According to defendant, Plaintiff has filed a number of motions seeking preliminary injunctions against defendant.  And defendant notes that the Texas state court denied a request for a temporary restraining order against defendant more than a year ago.

Renewed motion for temporary restraining order, denied.

Tempur-Pedic North America, LLC v. Mattress Firm, Inc., Case No. 8:18-CV-2147-VMC-SPF (M.D. Fla. Aug. 31, 2018) (J. Covington)

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