Mountain Mike's Pizza, LLC v. SV Adventures, Inc.
2:21-cv-02387
| E.D. Cal. | Dec 29, 2021Background
- Mountain Mike’s Pizza, LLC (Plaintiff) franchised a restaurant in El Dorado Hills under a franchise agreement assigned to SV Adventures; Salvatore and Sandra Viscuso executed a personal guaranty.
- The franchise term expires January 2, 2022; Plaintiff claims it gave timely notice it would not continue the franchise and would exercise contractual rights to purchase the restaurant/assume management.
- Plaintiff alleges Defendants refused to sell or assign the lease, advertised a rebrand to “Viscuso’s Pizza and Draft House,” posted a DoorDash listing using Plaintiff’s marks and copied menu material, and threatened disposal of assets.
- Defendants say they never operated under the new name before expiration, removed the sign and deactivated a prematurely-activated DoorDash account after receiving a cancelled order, and assert no sales occurred under the new name.
- Plaintiff moved for a temporary restraining order to enjoin trademark infringement and to preserve the status quo pending arbitration.
- The court denied the TRO, finding Plaintiff failed to show imminent, irreparable harm or sufficient evidence Defendants will continue infringing after expiration; the court also noted Plaintiff’s delay in seeking relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trademark infringement / likelihood of success | Defendants used Plaintiff’s marks and copied menu content on DoorDash and signage, causing consumer confusion | Account was activated prematurely by DoorDash; Defendants deactivated it and removed signage; no sales occurred under new name | Court did not find sufficient evidence of ongoing or imminent infringement to justify TRO |
| Irreparable harm from trademark use | Reputational harm, dilution, loss of goodwill and customers; rebuttable presumption upon likelihood of success | No continuing conduct; any past conduct ceased so prospective relief is not warranted | Plaintiff failed to prove certainly impending or substantial risk of recurrence; economic injury alone is insufficient |
| Risk of losing leasehold / real property interest | Plaintiff will lose contractual right to purchase/assume management absent emergency relief | Defendants remain on the lease and are not being evicted; lease allegedly runs to 2027 | Court distinguished cited precedent and found no imminent risk of losing property interest |
| Delay and mootness of relief sought | Emergency relief needed before expiration | Plaintiff delayed bringing motion until two weeks before expiry; defendants ceased the alleged conduct | Delay and cessation undercut need for TRO; court declined to reach other Winter factors |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (establishes four-factor preliminary injunction test)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (permits sliding-scale approach where serious questions exist on the merits)
- Munns v. Kerry, 782 F.3d 402 (9th Cir. 2015) (prospective relief requires threat of injury that is certainly impending or a substantial risk of recurrence)
- Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239 (9th Cir. 2013) (economic loss alone is generally insufficient; reputational harm requires concrete evidence)
- Park Village Apartments v. Mortimer Howard Trust, 636 F.3d 1150 (9th Cir. 2011) (context on evictions and need for emergency relief)
- Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) (purpose of preliminary injunction is preserving status quo pending trial)