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Inc. v. Celebrated Affairs Catering, Inc.

United States District Court, E.D. Texas, Sherman Division

March 22, 2017

DICKEY'S BARBECUE PIT, INC., DICKEY'S BARBECUE RESTAURANTS, INC.
v.
CELEBRATED AFFAIRS CATERING, INC., DAVID WIRTH, PAMELA WIRTH

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiffs' First Amended Application for Temporary and Preliminary Injunctive Relief (Dkt. #11). After considering the complaint, the application, and the arguments of counsel, the Court finds the motion should be granted.

         BACKGROUND

         This dispute centers around Defendants' unauthorized production, manufacture, distribution, advertisement, promotion, marketing, offering for sale, and sale of Plaintiffs' trademarked barbeque, sides, rub, and sauce. Plaintiffs are the owners of the following trademarks:

Reg. Number

Trademark

1980072

Dickey's Barbecue Pit A Texas Tradition Since 1941 (Design plus words)

2878761

A Texas Tradition Since 1941 Dickey's Barbecue Pit (Design plus words)

3205121

Dickey's Barbecue Pit Since 1941 (Design plus words)

3237281

Dickey's

4249206

Dickey's Barbecue Pit Original Barbecue Sauce

4249207

Dickey's Barbecue Pit Original Barbecue Rib Rub

4249263

Dickey's Barbecue Pit

4579035

Big Yellow Cup Club

4631706

Dickey's Barbecue Pit (Design plus words)

5086496

We Speak Barbecue

87002549

Dickey's Barbecue Pit (Design plus words - pending)

1202218

Dickey's Barbecue Pit (Design plus words - international)

1183816

Dickey's (International)

(Dkt. #14, Exhibit D).

         On May 22, 2013, and July 23, 2015, Defendants entered into franchise agreements with Dickey's Barbeque Restaurants, Inc. (collectively, the “Franchise Agreements”). As part of these agreements, Defendants operated two Dickey's Barbeque Pit Restaurants at 7850 N. Oracle, Tucson, Arizona 85704 and 5250 E. 22nd Street, Tucson, Arizona 85711.

         On February 2, 2017, Defendants terminated the Franchise Agreements. Upon termination, the “Obligations Upon Termination or Expiration” clause in the Franchise Agreements prohibit Defendants from (1) reopening the franchise restaurants; (2) opening a barbeque restaurant within a five-mile radius of the Dickey's Barbeque franchise restaurants; and (3) using any of the confidential methods, procedures, and trade secrets associated with the Dickey's Restaurants' System. Termination also required Defendants to immediately and permanently cease use of all signs, advertising materials, displays, stationary, forms, and any other articles which display Plaintiff's marks.

         On February 5, 2017, a representative for Plaintiffs visited each of Defendants' locations and documented the continued use of Plaintiff's trademarks.

         On February 20, 2017, Plaintiffs filed a complaint (Dkt. #1). That same day, Plaintiffs filed an Application for Temporary Restraining Order and Temporary Injunctive Relief (Dkt. #2). The Court denied the application for lack of notice to Defendants (Dkt. #4). On February 28, 2017, Plaintiffs filed an Amended Complaint and their First Amended Application for Temporary and Preliminary Injunctive Relief (Dkt. #6; Dkt. #11). The Court granted a temporary restraining order on March 6, 2017, and set a hearing for the preliminary injunction on March 21, 2017 at 12:00 p.m. (Dkt. #21).

         The Court held a preliminary injunction hearing on March 21, 2017 at 12:00 p.m. Defendants did not appear. At the hearing, Plaintiffs requested that the Court convert the Application for Temporary Restraining Order and Temporary Injunctive Relief into an application for preliminary injunction. The Court agreed.

         As of the date of this order, Defendants continue to operate stores at 7850 N. Oracle, Tucson, Arizona 85704 and 5250 E. 22nd Street, Tucson, Arizona 85711.

         LEGAL STANDARD

         Under Rule 65 of the Federal Rules of Civil Procedure, “[e]very order granting an injunction and every restraining order must: (a) state the reasons why it issued; (b) state its terms specifically; and describe in reasonable detail . . . the act or acts restrained or required.” Fed.R.Civ.P. 65(d). A plaintiff seeking a preliminary injunction must show: (1) a substantial likelihood of success on the merits; (2) a substantial threat that plaintiff will suffer irreparable harm if the injunction is not granted; (3) the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) the injunction will not disserve the public interest. Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).

         “A preliminary injunction is an extraordinary remedy and should only be granted if the plaintiffs have clearly carried the burden of persuasion on all four requirements.” Id. “The denial of a preliminary injunction will be upheld where the movant has failed sufficiently to establish any one of the four criteria.” Black Fire Fighters Ass'n v. City of Dall., 905 F.2d 63, 65 (5th Cir. 1990) (emphasis in original) (citation omitted). Injunctive relief requires the applicant to unequivocally show the need for its issuance. Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 2005). The movant has the burden of introducing sufficient evidence to justify the grant of a preliminary injunction. PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005). The party seeking relief ...


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