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ABS-CBN Corp. v. Tfctvlive.Com

United States District Court, S.D. Florida

August 22, 2019

ABS-CBN CORPORATION., et al, Plaintiffs,
v.
TFCTVLIVE.COM, et al., Defendants.

          ORDER GRANTING MOTION FOR ENTRY OF PRELIMINARY INJUNCTION

          Rodney Smith Judge

         THIS CAUSE came before the Court upon Plaintiffs' Motion for Entry of Preliminary Injunction (the "Motion") [DE 5]. The Court has carefully reviewed the Motion and the record and is otherwise fully advised in the premises.

         By the instant Motion, Plaintiffs, ABS-CBN Corporation, ABS-CBN Film Productions, Inc., d/b/a Star Cinema, and ABS-CBN International (collectively "Plaintiffs") move for entry of a preliminary injunction against Defendants, the individuals, partnerships, business entities, and unincorporated associations identified on Schedule "A" hereto (collectively "Defendants"), pursuant to 15U.S.C. § 1116, 17 U.S.C. § 502(a), Federal Rule of Civil Procedure 65, and The All Writs Act, 28 U.S.C. § 1651(a).

         The Court convened a hearing on August 22, 2019, at which only counsel for Plaintiffs was present and available to present evidence supporting the Motion. Because Plaintiffs have satisfied the requirements for the issuance of a preliminary injunction, the Court will now grant Plaintiffs' Motion for Preliminary Injunction.

         I. Factual Background[1]

         Plaintiff ABS-CBN International, is the owner of the following trademarks which are valid and registered on the Principal Register of the United States Patent and Trademark Office (the "ABS-CBN Registered Marks"):

Trademark

Registration Number

Registration Date

Class/Services

ABS-CBN

2, 334, 131

March 28, 2000

IC 036 - telephone calling card services

IC 038 - Television broadcasting services via satellite and cable

TFC

3, 733, 072

Jan. 5, 2010

IC 038 - Television broadcasting services via satellite and cable

IC 041 - Production and programming of television shows, entertainment and a variety of programming distributed over television, satellite and via a global computer network

         (See Declaration of Elisha J. Lawrence in Support of Plaintiffs' Motion for Preliminary Injunction ("Lawrence Decl.") ¶¶ 4-5; see also United States Trademark Registrations of the ABS-CBN Registered Marks at issue attached as Composite Exhibit 1 to the Complaint.) The ABS-CBN Registered Marks are used in connection with the creation and distribution of entertainment content in the categories identified above. (See Id. ¶¶ 4-5.)

         Plaintiff ABS-CBN International is further the owner of all rights in and to the following common law trademark (the "ABS-CBN Common Law Mark"):

         (Image Omitted)

         (See Lawrence Decl. ¶ 6.) The ABS-CBN Common Law Mark is used in connection with the creation and distribution of entertainment content. (See id.) Together, the ABS-CBN Registered Marks and the ABS-CBN Common Law Mark are referred to as the "ABS-CBN Marks." Plaintiffs ABS-CBN Corporation, ABS-CBN Film Productions, Inc., and ABS-CBN International share exclusive rights in and to the ABS-CBN Marks. Moreover, ABS-CBN Corporation, ABS-CBN Film Productions, Inc., and ABS-CBN International are all licensed to use and enforce the ABS-CBN Marks. (See id.)

         Plaintiff ABS-CBN Film Productions, Inc. is the owner of the registered copyright in and to the movies specifically identified in Exhibit 2 to the Complaint [DE 1-3] and Plaintiff ABS-CBN Corporation is the owner of many unregistered copyrights, including but not limited to those specifically identified in paragraph 26 of the Complaint and in Exhibit 3 thereto [DE 1-4]. (See Lawrence Decl. ¶ 4.) Collectively, these registered and unregistered copyrighted works are referred to herein as the "Copyrighted Works." ABS-CBN Corporation, ABS-CBN Film Productions, and ABS-CBN International all share exclusive rights in and to the Copyrighted Works.

         Defendants, by operating the fully accessible[2] Internet websites operating under their individual, partnership, and/or unincorporated association names identified on Schedule "A" (the "Subject Domain Names") have advertised, promoted, offered for distribution, distributed and/or publicly performed the Copyrighted Works under what Plaintiffs have determined to be counterfeits, infringements, reproductions, and/or colorable imitations of the ABS-CBN Marks. (See Lawrence Decl. ¶¶ 12-15; Declaration of Christine Ann Daley in Support of Plaintiffs' Motion for Preliminary Injunction ("Daley Decl.") ¶ 2.)

         Although each Defendant may not copy and infringe each of Plaintiffs' trademarks for each category of services protected or each of Plaintiffs' copyrighted works, Plaintiffs have submitted sufficient evidence showing each Defendant has infringed, at least, one or more of the ABS-CBN Marks and the Copyrighted Works at issue. (See Lawrence Decl. ¶¶ 12-15.) Defendants are not now, nor have they ever been, authorized or licensed to use, reproduce, or make counterfeits, reproductions, or colorable imitations of the of the ABS-CBN Marks and/or perform or distribute the Copyrighted Works. (See Id. ¶¶ 12, 15.)

         As part of its ongoing investigation regarding the infringement of its intellectual property, on behalf of Plaintiffs, Stephen M. Gaffigan, P. A. performed an investigation into the advertising accounts used by Defendants. (See Daley Decl. ¶ 5.) By inspecting the Hyper Text Markup Language ("html") Source Code for the Internet websites operating under the Subject Domain Names, Stephen M. Gaffigan, PA. was able to specifically locate and identify many of the advertising revenue accounts of the Defendants, which are identified on Schedule "B," along with Defendants' associated e-mail addresses as identified in the publicly available domain name registration data for Defendants or directly on Defendants' websites operating under the Subject Domain Names. (See Daley Decl. ΒΆΒΆ 3, 5 n.2.) Plaintiffs' representative conducted a review of and visually inspected the Internet websites operating under the Subject Domain Names or the web ...


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