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Keywords

damageswilltrademarkobjection

attorneywill

Related Cases

Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 65 Fed.R.Serv.3d 826, 79 U.S.P.Q.2d 1431, 06 Cal. Daily Op. Serv. 6021, 2006 Daily Journal D.A.R. 8919

Facts

Reno Air Racing Association, Inc. has operated the National Championship Air Races since 1964, using a registered 'pylon logo' and the term 'Reno Air Races' as trademarks. Jerry McCord, who owned a merchandise business, sold items featuring these trademarks outside the air race gates. After receiving objections from Reno Air, the association filed a complaint and obtained a TRO without notifying McCord. The district court later found McCord in contempt for violating the TRO and awarded damages to Reno Air.

On September 13, 2002, Reno Air filed a complaint in the District of Nevada, alleging McCord's infringement of the federally registered 'pylon logo' mark in violation of 15 U.S.C. § 1114(1)(a) and infringement of the unregistered 'Reno Air Races' mark in violation of 15 U.S.C. § 1125(a).

Issue

Whether the ex parte TRO was properly issued without notice to McCord and whether the district court's finding of contempt was justified.

We consider first whether the TRO was properly granted ex parte without notice.

Rule

A TRO may be granted without notice only if immediate and irreparable injury will occur and the applicant certifies efforts made to give notice. The order must also be specific in terms and describe the acts sought to be restrained.

A[TRO] may be granted without written or oral notice to the adverse party … only if … it clearly appears … that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition.

Analysis

The court determined that the TRO was improvidently issued as it failed to meet the notice and specificity requirements of Rule 65. The application for the TRO did not provide sufficient evidence to justify the lack of notice, and the terms of the TRO were vague, failing to clearly identify the trademarks at issue. As a result, the court concluded that McCord could not be held in contempt for violating an unclear order.

As the TRO was improperly issued ex parte and failed to describe the prohibited conduct with specificity, the order cannot serve as the foundation for a finding of civil contempt.

Conclusion

The Ninth Circuit vacated and reversed the district court's contempt finding and sanctions against McCord, while affirming the ruling on trademark infringement.

Consequently, we vacate and reverse the district court's contempt finding and imposition of sanctions.

Who won?

Reno Air Racing Association, Inc. prevailed on the trademark infringement claim, as the court found McCord's use of the marks likely to confuse consumers.

The district court found that McCord infringed 'Reno Air Races' and the 'pylon logo,' which were protectable marks under the Lanham Act.

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