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Prepareme America, LLC v. Survival Prep Warehouse, LLC

United States District Court, W.D. Washington, Seattle

November 27, 2017

PREPAREME AMERICA, LLC, Plaintiff,
v.
SURVIVAL PREP WAREHOUSE, LLC, et al., Defendants,
v.
CHAD E. ALLEN, Third-Party Defendant.

          MINUTE ORDER

         The following Minute Order is made by direction of the Court, the Honorable Thomas S. Zilly, United States District Judge:

         (1) Plaintiff's motion for leave to amend, docket no. 37, is GRANTED. Plaintiff shall electronically file its Amended Complaint within seven (7) days of the date of this Minute Order. Notwithstanding Federal Rule of Civil Procedure 15(a)(3), any responsive motion or pleading shall be filed within twenty-one (21) days of the date the Amended Complaint is filed.

         (2) Plaintiff's motion for a preliminary injunction, docket no. 33, is DENIED without prejudice.[1] Plaintiff's motion is premised on the theory that, by using Amazon Standard Identification Numbers (“ASINs”) associated with plaintiff's products and/or federally registered trademark PERFECT SURVIVAL KIT, defendant Survival Prep Warehouse, LLC (“Survival Prep”) is engaged in infringement. For support, plaintiff has submitted several Amazon product-detail pages, [2] which may be summarized as follows:

Ex.

Date of Page

Product Name

Ships From and Sold By

Product Image

I

09-28-17

SurvivalKitsOnline 4 Person Perfect Survival Kit Deluxe

Get_Prepared_For_Disaster

(Image Omitted)

J

10-11-17

SurvivalKitsOnline 4 Person Perfect Survival Kit Deluxe

Survival Prep Warehouse

(Image Omitted)

K

10-18-17

Survival Prep Warehouse 4 Person Perfect Survival Kit Deluxe

Survival Prep Warehouse

(Image Omitted)

L

10-24-17

Survival Prep Warehouse 4 Person Survival Kit Deluxe

Survival Prep Warehouse

(Image Omitted)

M

09-28-17

4 Person Perfect Survival Kit Deluxe by SurvivalKitsOnline

not shown

(Image Omitted)

N

09-28-17

Perfect Survival Kit Deluxe 2-Person Perfect Survival Kit

Get_Prepared_For_Disaster

(Image Omitted)

O

10-19-17

SurvivalKitsOnline Deluxe 2-Person Perfect Survival Kit

Survival Prep Warehouse

(Image Omitted)

P

10-24-17

Survival Prep Warehouse Deluxe 2-Person Survival Kit

Survival Prep Warehouse

(Image Omitted)

Q

09-28-17

Deluxe 2-Person Perfect Survival Kit by Perfect Survival Kit

not shown

(Image Omitted)

R

09-28-17

Perfect Survival Kit Earthquake Kit, The Small Perfect Survival Kit

Get_Prepared_For_Disaster

(Image Omitted)

S

10-19-17

Perfect Survival Kit Earthquake Kit, The Small Perfect Survival Kit

Survival Prep Warehouse

(Image Omitted)

T

10-24-17

Perfect Survival Kit Earthquake Kit, The Small Perfect Survival Kit

Survival Prep Warehouse

(Image Omitted)

U

01-23-17

4 Person Perfect Survival Kit Deluxe by Perfect Survival Kit

Get_Prepared_For_Disaster

(Image Omitted)

         Exhibits I, N, R, and U indicate that an entity other than plaintiff or Survival Prep (i.e., Get_Prepared_For_Disaster) is offering or has offered for sale three different products styled as a “Perfect Survival Kit, ” namely a 4-person, a 2-person, and a small or earthquake kit. Exhibits M and Q are not linked in any way to Survival Prep. The remaining exhibits show that, although Survival Prep's earlier product descriptions and images included the term “PERFECT, ” which is the only portion of the trademark as to which plaintiff might claim an exclusive right, see Ex. A to Compl. (docket no. 1-1), more recent Amazon pages omit the word. See Exs. J-L, O-P, & V-W (docket nos. 34-2 & 34-3). Such evidence does not establish ongoing trademark infringement (or a related continuing violation of Washington's Consumer Protection Act (“CPA”)), which is a threshold for any preliminary injunctive relief.[3] See Mayfield v. United States, 599 F.3d 964, 970-71 (9th Cir. 2010) (to obtain injunctive relief, a movant must show that its injury is ongoing or likely to recur). To the extent plaintiff alleges that Survival Prep's use of the ASINs at issue precludes plaintiff from competing in the market or falsely designates Survival Prep as the origin of goods associated with plaintiff or its trademark, plaintiff has not yet pleaded such claims, and the Court cannot conclude that plaintiff has shown a likelihood of success on, or serious questions going to, the merits of legal theories not presently part of this litigation.[4] See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).

         (3) The Clerk is directed to send a copy of this Minute Order to all counsel of record.

---------

Notes:

[1] Plaintiff's request for oral argument, docket no. 55, is DENIED.

[2] Exhibits I-W to Matesky Decl. (docket nos. 34-1 - 34-3).

[3] The Court makes no ruling concerning whether Survival Prep's use of the ASINs at issue, prior to the removal in October 2017 of the term “PERFECT, ” constituted trademark infringement, a CPA violation, or a tort for which plaintiff might have a remedy at law.

[4] Plaintiff's reliance on Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250 (9th Cir. 1982), is misplaced. The case is both procedurally and factually distinguishable. It involved summary judgment, as opposed to preliminary injunctive relief, and it concerned a restaurant's ongoing substitution of Pepsi-Cola without oral ...


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