Does The Labor Day Holiday's Mattress Sale Weekend Warrant a Temporary Restraining Order?

No.

The owner of the TEMPUR-PEDIC bedding brand ("Plaintiff") has sued a number of defendants, including a former retailer as well as the owner of the THERAPEDIC bedding brand.  Through that lawsuit, Plaintiff seeks to enjoin sales of the THERAPEDIC bedding.

To that end, on August 28, 2018, the Tuesday before the labor day holiday, Plaintiff filed suit.   Along with its complaint, Plaintiff also filed a motion for a temporary restraining order, as well as a motion for a preliminary injunction.  The next day, the Court denied the motion for TRO for failure to comply with Fed. R. Civ. P. 65(b)(1)(B)'s obligation that the filing lawyer certify what efforts she has made to give notice to the defending party, and why notice should not be required.  Notably, the Court also referred the motion for preliminary injunction the magistrate judge to conduct an evidentiary hearing and issue a report and recommendation.

After its motion was denied, Plaintiff's general counsel emailed the retailer defendant's general counsel demanding defendant cease sales, and provided a copy of the motion for TRO as well as the Court's order denying it.  Plaintiff's letter gave defendant one day to comply.  Defendant did not respond.

Plaintiff next renewed its motion for TRO on the evening of August 30, 2018 (the Thursday before the labor day holiday).  Plaintiff included a copy of its letter to the defendant in an attempt to satisfy Fed. R. Civ. P. 65(b)(1)(B).  The next day, Friday, around 11:50am Defendant's counsel contacted the Court and indicated that it wanted to oppose Plaintiff's motion for TRO.  The Court gave defendant until 3pm that day to file its response, which defendant did.

Plaintiff's argument for a TRO was based, in part, on the labor day sales weekend being "one of the bedding industry's biggest sales weekends."  Permitting defendant to sell the allegedly infringing products through this weekend would result in "significant irreparable harm to [Plaintiff's] brand and goodwill."  In response, defendant explained that its limited sales in a single test market, as well as its long standing trademark rights -- predating Plaintiff's trademark rights -- cautioned against the extraordinary remedy of an ex parte temporary restraining order.   The Court agreed with defendant:

The Court is mindful that “[a]n ex parte temporary restraining order is an extreme remedy to be used only with the utmost caution.” Levine v. Comcoa Ltd., 70 F.3d 1191, 1194 (11th Cir. 1995). Given the contested nature of the allegations underpinning Plaintiffs’ argument for a temporary restraining order, as well as Mattress Firm’s request that it be given an opportunity to respond fully before any injunctive relief is granted, the Court denies the Renewed Motion for Temporary Restraining Order. The Court finds that Plaintiffs have not carried their burden for the issuance of a temporary restraining order pursuant to Federal Rule of Civil Procedure 65 and Local Rule 4.05.

While absent from the Court's order, defendant also explained another interesting angle in its responsive brief.  Apparently, the parties have been engaged in separate litigations in Texas state and federal court, where the Texas state litigation is due to begin trial later this month.  According to defendant, Plaintiff has filed a number of motions seeking preliminary injunctions against defendant.  And defendant notes that the Texas state court denied a request for a temporary restraining order against defendant more than a year ago. 

Renewed motion for temporary restraining order, denied.

Tempur-Pedic North America, LLC v. Mattress Firm, Inc., Case No. 8:18-CV-2147-VMC-SPF (M.D. Fla. Aug. 31, 2018) (J. Covington)

Tough Mudder vs. Baddest Mudder

Tough Mudder has been around since 2009, staging outdoor endurance and obstacle courses throughout the country.  A number of friends have participated in these events.  They sound cool, but the idea of allowing someone to shock me with electricity doesn't appeal to me so I've not yet signed up.  Apparently, there's another challenger in town -- Baddest Mudder.  Baddest Mudder has scheduled an event in November of this year in Brooksville.   Baddest Mudder also includes the following disclaimer on its website:

NOTICE
We want to notify the general public and all others that Tough Mudder LLC. is in no WAY shape or form related to, operated by, directed by or affiliated with "BADDEST MUDDER"
All We r... Is what we r...
Welcome To The Badlands

Tough Mudder sued Baddest Mudder for trademark infringement, false designation of origin, trademark dilution, and trademark cyberpiracy.  To speed things along, Tough Mudder also sought a temporary restraining order pursuant to Fed. R. Civ. P.  65(b).  A pretty aggressive approach.  As a refresher, temporary restraining orders, prohibiting an adverse party from doing something without notice,  are proper only when:
1) specific facts clearly show that immediate and irreparable harm will result before the adverse party can be heard; and
2) the moving party certifies in writing any efforts to give notice and the reasons why notice should not be required.


Here, Tough Mudder's TRO argument addresses the standards for a preliminary injunction, but did not specifically identify what the immediate irreparable harm was.  Instead, the irreparable harm complained of was, expectedly, the injury to Tough Mudder's goodwill.   Tough Mudder filed its TRO motion on a Friday.  Judge Scriven denied it the following Monday:

Federal Rule of Civil Procedure 65(b)(1) provides that a TRO may be granted  without notice only if the party requesting the TRO can: (1) offer specific facts clearly showing that “immediate and irreparable injury, loss, or damage will result to the movant  before the adverse party can be heard in opposition;” and (2) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be  required.  The Court has reviewed Plaintiff’s motion, memorandum, amended complaint,  and accompanying documents.  Upon consideration and review, the Court finds that a temporary restraining order without notice should not be granted since it does not clearly appear that immediate and irreparable harm will result before Defendants can be  heard in opposition.  The main event to be held by Defendants which Plaintiff claims will  cause its injury is not scheduled to be held until November 2, 2012.  Plaintiff  has not provided sufficient reasons why notice of the TRO has not been given and should not be given to Defendants.

I imagine the next motion we will see will be the preliminary injunction motion.

Motion for Temporary Restraining Order, Denied.
Tough Mudder, LLC v. La. Placa, Case No. 8:12-cv-1513 (M.D. Fla. Jul. 9, 2012) (J. Scriven)