The opinion of the court was delivered by: Edwin G. Torres United States Magistrate Judge
ORDER ON PLAINTIFF'S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
This matter is before the Court on Plaintiff Mango's Tropical Cafe, Inc.'s ("Plaintiff" or "Mango's") Emergency Motion for Temporary Restraining Order ("TRO") and Order to Show Cause Why Preliminary Injunction Should Not Issue. [D.E. 3]. The Honorable Joan A. Lenard referred this motion to the undersigned Magistrate Judge for a hearing on December 29, 2011. [D.E. 16].*fn1 After considering the motion and related filings, the testimony of the witnesses and the documents admitted into evidence at the hearing, the oral arguments of counsel, and the entire record in this case, Plaintiff's motion for a TRO will be Denied, for the reasons set forth below. The denial of this motion does not preclude Plaintiff from pursuing its motion for a preliminary injunction after further factual development.
Plaintiff is suing Defendants Mango Martini Restaurant & Lounge ("Mango Martini"), Inc., Lakes Cafe Sports Bar & Grill, Inc. d/b/a Mango Martini Restaurant and Lounge ("Lakes Cafe"), Jose Flores ("Flores"), Charlie Rodriguez ("Rodriguez"), and Humberto Perez ("Perez") (collectively, "Defendants")*fn3 for federal trademark infringement, federal unfair competition, common law unfair competition, and trademark dilution under federal and Florida statutory law. [D.E. 1 (Emergency Verified Complaint for Trademark Infringement, Unfair Competition and Related Claims)]. Plaintiff alleges that Defendants' advertisement and promotion of bar, nightclub, and restaurant services under the name "Mango Martini" violates Plaintiff's rights in and to its longstanding and federally-registered family of Mango's trademarks ("Mango's Marks").
Plaintiff owns and operates Mango's Tropical Cafe, a well-known restaurant and nightclub on South Beach that has been in continuous operation for over 20 years. Mango's Tropical Cafe, also widely known simply as Mango's, offers a Caribbean tropical atmosphere filled with reggae music, salsa dancing, and gourmet cuisine.
Plaintiff owns valid U.S. Trademark Registrations in five marks. [D.E. 1 (Complaint), Exhibits A - E]. Plaintiff utilizes the Mango's Marks in connection with the operation of its restaurant and nightclub. The Mango's Marks are displayed prominently on all business signage, menus, clothing items, pre-packaged food products, music and other memorabilia, a practice followed since commencing operation of Mango's Tropical Cafe in 1991. Each of the trademark registrations features a specific, stylized version of the mark which consists of a prominently placed design of a parrot inside a circle, together with a stylized version of the word "Mango's" above the circle and the words "Tropical Cafe"*fn4 below the circle. The first use of Plaintiff's mark occurred in 1991.
Defendants' restaurant and bar, Mango Martini, is located in Miami Lakes, Florida. The name "Mango Martini" was selected during a meeting that included Flores, the general manager of Classica, a Latin radio station, and others. Classica's general manager came up with the name, which was associated with the cocktail, the mango martini. Defendants registered the fictitious name "Mango Martini Restaurant and Lounge" with the Florida Secretary of State in mid-July 2011, and articles of incorporation were filed shortly thereafter. The internet domain name www.mangomartinimiami.com was registered in September 2011. Defendants did not review trademark registrations for the name nor did they consult with trademark counsel prior to selecting that name.
Defendants recently changed the name of their establishment from "Lakes Cafe Sports Bar & Grill" to "Mango Martini." Flores testified that the business began operating under the new name approximately four months ago. Though they have begun operations, as evidenced also by pictures taken of the operating business by Plaintiff's private investigator, Defendants have announced and publicized on their website the "grand opening" of Mango Martini for New Year's Eve, December 31, 2011.
On December 18, 2011, Plaintiff first became aware of the existence of Defendants and their website located at www.mangomartinimiami.com after Defendants offered a discount coupon for brunch at Mango Martini through the Groupon website, the online "deal of the day" website. Plaintiff notified Defendants of their infringing conduct, demanded they cease and desist, then promptly filed the pending lawsuit.
Plaintiff contends that Defendants' use of the mark "Mango Martini" to identify their services infringes Plaintiff's trademark rights. In particular, Plaintiff claims that Defendants' use of the dominant portion of Mango's business and domain names (the term "Mango's") creates confusion and deception as to the source and origin of Defendants' restaurant and bar services, and unfairly trades on the valuable goodwill embodied in the Mango's Marks.
Because Defendant's announced grand opening is scheduled to be held during its New Year's Eve event on December 31, 2011, Plaintiff seeks to immediately enjoin Defendants' use of the mark "Mango Martini." Specifically, the immediate relief Plaintiff seeks is a TRO prohibiting Defendants from using "Mango Martini" in any way in connection with their New Year's Eve event; from committing any acts calculated to cause the public to believe that Defendant's Mango Martini is sponsored by, affiliated with, or connected with Plaintiff; from further diluting and infringing Plaintiff's trademarks and damaging its goodwill; and from otherwise competing unfairly with Plaintiff in any manner. [D.E. 3 at 1-2]. To that end, Plaintiff moves for a TRO and an order to show cause why a preliminary injunction should not be issued prior to the event.
Upon referral of the matter, an immediate evidentiary hearing was convened and Defendant was ordered to respond to the motion prior to the hearing. The Court was presented with supporting evidence from both sides, including the testimony of Plaintiff's Chief Operating Officer Joshua Wallack and Defendant's corporate representative Jose Flores.
A. Motion for Temporary Restraining Order
Injunctive relief is expressly authorized by the Lanham Act, 15 U.S.C. § 1051, et seq., in cases of trademark infringement and unfair competition. See 15 U.S.C. § 1116(a); see also Fed. R. Civ. P. 65(b). A temporary restraining order is an appropriate remedy in a situation where a party is facing immediate irreparable harm that will likely occur before a hearing for preliminary injunction can be held. See 11A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2951 (2d ed. 1995).
To obtain a preliminary injunction, Plaintiff must demonstrate that: (1) there is a substantial likelihood of success on the merits of the underlying case; (2) Plaintiff will suffer irreparable harm in the absence of injunctive relief; (3) the harm suffered by Plaintiff in the absence of an injunction would exceed the harm suffered by Defendants if the injunction issued; and (4) an injunction would not disserve the public interest. See Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246-47 (11th Cir. 2002); see also Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988). "A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the 'burden of persuasion' as to the four requisites." McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998); Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) ("[b]ecause a preliminary injunction is 'an extraordinary and drastic remedy,' its grant is the exception rather than the rule, and plaintiff must clearly carry the burden of persuasion."). However, "[i]f the movant is unable to establish a likelihood of success on the merits, a court need not consider the remaining conditions prerequisite to injunctive relief." 1-800 Contacts, 299 F.3d at 1247 (citing Pittman v. Cole, 267 F.3d 1269, 1292 (11th Cir. 2001)).
The goal of a preliminary injunction is to prevent irreparable harm and to "preserve the district court's power to render a meaningful decision after a trial on the merits." Canal Auth. of the State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). "[T]he most compelling reason in favor of [granting a preliminary injunction] is the need to prevent the judicial process from being rendered futile by defendant's action or refusal to act." Id. at 573; see also All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989) ("Preliminary injunctions are issued when drastic relief is necessary to preserve the status quo.").
B. Federal Trademark Infringement and Unfair Competition Claims
1. Likelihood of Success on the Merits
To prevail on its trademark infringement claim, Plaintiff must demonstrate (1) that its mark has priority and (2) that Defendants' mark is likely to cause consumer confusion. See Frehling Enters., Inc. v. Int'l Select Group, Inc., 192 F.3d 1330, 1335 (11th Cir. 1999); see also 15 U.S.C. § 1114(1).*fn5 To prevail on its unfair competition claims, Plaintiff must similarly demonstrate a likelihood of confusion. See Babbit Elecs, Inc. v. Dynascan Corp., 38 F.3d 1161, 1181 (11th Cir. 1994); see also 15 U.S.C. § 1125(a). The only issue in dispute is whether Plaintiff has presented compelling evidence that consumers will be confused about the relationship or affiliation between Plaintiff's restaurant and bar services and Defendants' restaurant and bar services in light of Defendants' use of "Mango Martini" in its business and domain names.
We consider the following seven factors in assessing whether or not a likelihood of consumer confusion exists: (1) type of Plaintiff's mark; (2) similarity of the parties' marks; (3) similarity of the products or services the marks identify; (4) similarity of the parties' retail outlets (trade channels) and customers; (5) similarity of advertising media used; (6) existence of actual confusion; and (7) Defendants' intent. See Frehling, 192 F.3d at 1335; Lone State Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 122 F.3d 1379, 1382 (11th Cir. 1997) (remanded so that district court could fully consider all seven factors in determining the likelihood of confusion); Michael Caruso & Sons, Inc. v. Estefan ...