United States District Court, D. Nevada
HERB REED ENTERPRISES, INC., and HERB REED ENTERPRISES, LLC, Plaintiffs,
MONROE POWELL'S PLATTERS, LLC; MONROE POWELL; and DON GLOUDE, Defendants.
PHILIP M. PRO, District Judge.
Presently before this Court is Plaintiff Herb Reed Enterprises, Inc. and Herb Reed Enterprises, LLC's Second Motion for an Order to Show Cause Why Defendants, Maurey Robinson and Picone & Robinson Should Not Be Held in Contempt and Sanctioned (Doc. #153), filed on December 13, 2013. Defendants Monroe Powell; Monroe Powell's Platters, LLC; and Don Gloude filed an Opposition (Doc. #157) on December 27, 2013. Plaintiffs filed a Reply (Doc. #159) on January 6, 2014. The Court held a hearing on the Motion on February 10, 2014. (Mins. of Proceedings (Doc. #163).)
The parties are familiar with the facts of this case, and the Court will not repeat them here except where necessary. On February 1, 2012, this Court granted Plaintiffs' Motion for a Preliminary Injunction (Order (Doc. #26)), and ordered as follows:
Defendants and their agents are preliminarily enjoined from use of the mark "The Platters, " and any equivalent or phonetically similar names or marks, in connection with any vocal group in any advertisements, promotional, marketing, or other materials, with two narrow exceptions.
First, Defendants may use the mark "The Platters" if the word "Tribute" or "Revue" is included and when displayed or advertised, the word "Tribute" or "Revue" is at least one half the font size of "The Platters." Second, Defendants may use the mark "The Platters" in any other manner with Herb Reed's written permission.
(Id. at 13.) Plaintiffs now allege several violations of the preliminary injunction Order by Defendants, as well as by nonparties Maurey Robinson ("Robinson") and his company Picone & Robinson.
A. City of Thousand Oaks Website
Plaintiffs discovered a violation of the preliminary injunction after accessing the "City of Thousand Oaks" website on January 11, 2013. (Pls.' Second Mot. for an Order to Show Cause (Doc. #153) ["Pls.' Mot."], Decl. of Frederick J. Balboni ["Balboni Decl."] at ¶¶ 2, 6.) Plaintiffs' manager, Frederick J. Balboni ("Balboni"), accessed the website, which referred to Defendants' music group three times. (Id., Ex. 1 at 2; Pls.' Mot., Decl. of Eric M. Sommers ["Sommers Decl."], Ex. 1 at 3.) On the website, a performance calendar with a link named "Details" contained an advertisement of Defendants' upcoming show on March 16, 2013, listing "The Platters" in large, bolded font with a sub-title stating, "Featuring the legendary Monroe Powell, backed by Cannibal and the Headhunters[.]" (Sommers Decl., Ex. 1 at 3.) A poster advertisement on the website referred to Defendants' group as "The Platters Featuring The Legendary Monroe Powell." (Id.) At the bottom of the same poster, Defendants' group was referred to as "The Platters" along with illegible print. (Id.) Defendants' agent for the performance, Denise Diaco, booked the show. ( Id. at 8.)
On January 18, 2013, Plaintiffs' counsel wrote Defendants' counsel to explain that Plaintiffs discovered the City of Thousand Oaks website advertising that was in violation of the preliminary injunction. (Sommers Decl. ¶ 2.) Plaintiffs' counsel requested that Defendants' counsel take action to ensure all advertising on the website was changed immediately. (Sommers Decl., Ex. 1 at 2.) Defendants' counsel responded on January 23, 2013, that he was "shocked" about the alleged violation, and had admonished Defendants to initiate remedial action. ( Id. at 8.)
Balboni contacted the venue and asked the venue to change the advertisement to comply with the Order. (Balboni Decl. ¶ 6.) According to Plaintiffs, the advertising was eventually modified as the result of Plaintiffs' efforts. (Id.) However, according to Defendants, it is unclear whether Plaintiffs' communications with the venue or action taken by Defendants led to the change. (Sommers Decl., Ex. 1 at 8.)
B. Fox Theater Website
Plaintiffs discovered a second violation after accessing the "Fox Theater" website on January 18, 2013. ( Id. at 5.) The website's "Event Details" page contained an advertisement of a March 17, 2013, performance entitled, "THE ORIGINAL CORNELL GUNTER'S COASTERS, THE ORIGINAL DRIFTERS, and THE PLATTERS." (Id.) In the first paragraph detailing the performance, the group was referred to as "THE PLATTERS featuring the legendary MONROE POWELL." (Id.) Denise Diaco, acting again as Defendants' agent, booked the performance. ( Id. at 8.) Plaintiffs' counsel informed Defendants' counsel of the alleged violation on January 18, 2013. ( Id. at 2.) In response, Defendants' counsel stated that he informed Defendants about the Fox Theater website and that parts of the website had been changed, but "there may still be one small part on the Fox Theater site that needs to be further altered (as of the morning, the front pate [sic] link still was mislabeled, although when the link is activated, the full page advertisement is correct)." ( Id. at 7-8.) It is unclear whether the Fox Theater website has been altered to fully comply with the Order.
C. Robinson Websites
Plaintiffs discovered a third violation after accessing Robinson's "Picone & Robinson" website on May 29, 2013. (Sommers Decl. ¶ 3.) The site referred to Defendants' group in four different locations. (Id., Ex. 2 at 3-6.) Defendants' group was first referred to as, "The Platters feat. The Legendary Monroe Powell." ( Id. at 3.) Defendant's group was next advertised in a large photograph on the website with "The PLATTERS featuring The Legendary Monroe Powell" prominently displayed. (Id.) Defendants' group was listed a third time as "THE PLATTERS Featuring The Legendary Monroe Powell" under the "Talent" section of the site. ( Id. at 6.) Defendants' group was listed a fourth time as "The Platters..." under the "Talent Performance" section of the website. (Id.)
After discovering the advertising on Robinson's website, Plaintiffs' counsel, Eric Sommers ("Sommers"), and Balboni had a telephone conversation with Robinson. (Sommers Decl. ¶ 3.) Sommers asserts that during the conversation, Robinson communicated he was promoting Defendants because he was attempting to negotiate a recording deal. (Id.) According to Balboni, Robinson stated that Defendant Don Gloude ("Gloude"), Defendants' manager, provided the noncompliant advertising posted on the Robinson website. (Balboni Decl. ¶ 9.)
On May 29, 2013, Plaintiffs' counsel sent a letter via email and United States mail to Defendants' counsel stating:
It has recently come to our attention that your clients continue to violate the preliminary injunction issued last year. We understand [Defendants] have recently hired a company called Picone & Robinson to promote them. Last week, we spoke with one of the owners of that company, Maurey Robinson, who informed us that the promotional information they are using... were provided by your clients. Those materials are in direct violation of the injunction. Given that they were provided by your clients, there can be no question that the violation is intentional.... Your clients' continued refusal to follow the injunction is troubling.
(Sommers Decl., Ex. 2 at 2.) Several weeks after Plaintiffs brought the website to Defendants' attention, Balboni discovered Robinson made some ...