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Puetz v. Teespring.Com, Inc.

United States District Court, D. Nevada

May 2, 2018

BRADLEY J. PUETZ d/b/a DESERT TACTICAL, Plaintiff,
v.
TEESPRING.COM, INC., a Delaware Corporation; DOES I-X, ROE CORPORATION I-X, inclusive, Defendants.

          ORDER (ECF Nos. 24, 26, and 27)

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This action concerns alleged copyright infringement. Pending before the Court are Plaintiff Bradley J. Puetz's Ex Parte[1] Motion for Preliminary Injunction and Temporary Restraining Order (“TRO Motion”) (ECF Nos. 24, 26)[2] and Plaintiff's Motion for Leave to File the First Amended Complaint (“Motion to Amend”) (ECF No. 27). Defendant Teespring, Inc. filed oppositions to the respective motions (ECF Nos. 28, 31), and Plaintiff filed replies (ECF Nos. 30, 32).

         For the reasons discussed herein, the Motion to Amend is granted and the TRO Motion is denied.

         II. RELEVANT BACKGROUND

         Plaintiff is the owner of the following federally registered copyright: "I'M THE INFIDEL ALLAH WARNED YOU ABOUT" and the associated design (collectively, "Desert Tactical Design"). (ECF No. 27-1 at 4-5; ECF No. 27-2 at 2; ECF No. 29-3 at 39.)

         (Image Omitted)

         Defendant provides an e-commerce platform that allows users to upload user customized garment designs and launch their own sales "campaigns." (ECF No. 28-1 at 2.) Defendant does not participate in creating, designing, drawing, or uploading designs to its platform. (Id.)

         Plaintiff asserts that Defendant offers designs in campaign sales that infringe the Desert Tactical Design. (ECF No. 24 at 6; ECF No. 26 at 6.) However, this is not the first lawsuit between the parties involving such alleged infringement.

         In September 2015, Defendant initiated a lawsuit against Plaintiff in the U.S. District Court for the Northern District of California ("California Court") seeking declaratory relief ("California Action").[3] (ECF No. 24 at 6; ECF No. 26 at 6; ECF No. 28-1 at 2; ECF No. 29-3 at 37.) Defendant sought a declaration that Defendant did not infringe Plaintiff's copyright for the Desert Tactical Design when it sold certain apparel designed by one of its users. (ECF No. 29-3 at 37.) Plaintiff counterclaimed, asserting Defendant directly and vicariously infringed the Desert Tactical Design, and requested damages and a preliminary injunction. (Id.)

         The California Court denied Plaintiff's request for a preliminary injunction, finding Plaintiff failed to establish likelihood of irreparable harm. (Id. at 41.) In reaching this finding, the California Court considered: (1) Plaintiff's over-one-year-delay in moving for “interim relief[;]” (2) lack of evidence tending to show “consistent, continuing violations[;]” (3) Defendant had removed the violating design and similar designs from its website; (4) that upon Plaintiff notifying Defendant of allegedly infringing designs, “[Defendant] quickly took down the listings;” and (5) Defendant has an automated system for identifying and removing designs similar to Plaintiffs, which further decreased the likelihood of irreparable harm during the lawsuit. (Id. at 41-2.)

         On May 9, 2017, a jury found that Defendant's user “directly infringed” the Desert Tactical Design and that Defendant vicariously infringed Plaintiff's copyright. (ECF No 27-2 at 4-6.) Plaintiff brought a post-trial motion seeking, among other things, permanent injunction against Defendant. (ECF No. 29-3 at 44.) On July 27, 2017, the California Court denied Plaintiff's request, finding an insufficient showing of irreparable harm. (Id. at 45-46.) In particular, the California Court found that Defendant's automated screening system “appears to have done a relatively good job” at preventing potential infringement, and that Plaintiff had “not adequately described why any harm to him could not be remedied through money damages.” (Id. at 45.)

         About two months later, on September 28, 2017, Plaintiff instituted the current action. The following designs, which includes designs that Plaintiff does not contest had been listed in campaigns on Defendant's website during the California Action, and the exact design involved in that action, underlie Plaintiff's request for preliminary relief in this matter:

         (Image Omitted)

         Exhibit C designs ...


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