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Conair Corp. & Babyliss Faco SPRL v. Le Angelique, Inc.

United States District Court, D. Nevada

September 15, 2014

LE ANGELIQUE, INC., Defendant.


ROBERT C. JONES, District Judge.

This proceeding arises out of the alleged violation of a corporation's intellectual property rights by a competing manufacturer and retailer. Pending before the Court is an Emergency Motion for a Temporary Restraining Order ("TRO") (ECF No. 12). For the reasons given herein, the Court grants the motion.


Plaintiffs Conair Corporation and its subsidiary, Babyliss FACO SPRL, (collectively, "Conair") make a hair-curling tool marketed and sold under the names "Miracurl" and "Curl Secret." (Compl. ¶¶ 4, 5, 7-8, July 13, 2014, ECF No. 1). Conair obtained United States Design Patent No. D696, 456 (filed Apr. 9, 2013) ("design patent") on the tool's design in December 2013 in addition to various utility patents. ( Id. ¶¶ 4-5). Conair seeks to temporarily restrain a competitor, Le Angelique, Inc., from selling and marketing a hair-curling tool named "EasyCurl" on the grounds it infringes on Conair's design patent and trade dress.

A. Conair's Patented Design

Conair's design patent is for the ornamental design of the Miracurl and Curl Secret haircurling tools. ( See Stockman Decl. Ex. E, July 15, 2014, ECF No. 12, at 39). Conair describes its design as a "round bulbous clam-shell head [attached to a] sleek handle." (Compl. ¶ 11). According to Conair, the Miracurl and Curl Secret hair-styling tools are "nearly identical, " except that Miracurl's trade dress is aqua/teal and has three buttons while Curl Secret's trade dress is dark purple with two buttons. ( Id. ). Conair has experienced success with the Miracurl and Curl Secret and sells tools worldwide. ( Id. ¶ 8). Conair markets its products on its websites and the products sell for around $180 for the Miracurl and $100 for the Curl Secret. (Stockman Decl. ¶¶ 10, 13, ECF No. 12, at 22).

B. Le Angelique's Design

Conair learned that Le Angelique was marketing the EasyCurl hair-styling tool at the CosmoProf beauty trade show in Las Vegas, Nevada on July 13, 2014. ( Id. ¶ 10). Conair asserts that the EasyCurl's design is "confusingly similar" to Conair's patented design. (Compl. ¶ 9). Conair also complains that Le Angelique wrongfully copied Conair's trade dress in its marketing of the EasyCurl. ( Id. ¶ 14). Le Angelique sells the EasyCurl, among other products, on its website. ( Id. ¶ 9). The advertised price for the EasyCurl is under $90. (Stockman Decl. ¶ 13).

C. The Present Case

On July 13, 2014, Conair sued Le Angelique in this Court for: (1) utility patent infringement, (2) design patent infringement, (3) federal trade dress infringement/unfair competition in violation of 15 U.S.C. § 1125(a), and (4) common law trademark infringement. On July 14, 2014, Conair filed an Emergency Motion for an Ex Parte Temporary Restraining Order to immediately restrain Le Angelique from marketing and selling the EasyCurl, including stopping Le Angelique from marketing and selling the device for the duration of the three-day Las Vegas show. The Court denied Conair's ex parte motion and ordered that Conair proceed with a noticed motion to Le Angelique. Conair served Le Angelique with notice of the Complaint and Emergency Motion for Temporary Restraining Order ("TRO") on July 15, 2014. Conair's motion relies solely on the alleged infringement of Conair's design patent and trade dress. Le Angelique has not answered the Complaint nor opposed the instant motion for a TRO.


To obtain a temporary restraining order Under Fed.R.Civ.P. 65(b), a plaintiff must make a showing that immediate and irreparable injury, loss, or damage will result to plaintiff without a temporary restraining order. Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. See Cal. Indep. Sys. Operator Corp. v. Reliant Energy Servs., Inc., 181 F.Supp.2d 1111, 1126 (E.D. Cal. 2001) ("The standard for issuing a preliminary injunction is the same as the standard for issuing a temporary restraining order."). The standard for obtaining ex parte relief under Rule 65 is very stringent. Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). The temporary restraining order "should be restricted to serving [its] underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974).

The Court of Appeals in the past set forth two separate sets of criteria for determining whether to grant preliminary injunctive relief:

Under the traditional test, a plaintiff must show: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases). The alternative test requires that a plaintiff demonstrate either a combination of probable success on the merits and the possibility of ...

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