Seattle Trademark Lawyer

Plaintiff’s (left) and defendant’s trade dress: Ex parte relief not appropriate

Ruiz Food Products, Inc., filed suit in the Eastern District of California against Camino Real Foods, Inc., alleging that Camino’s burrito packaging is confusingly similar to its own.

Ruiz immediately moved for an ex parte temporary restraining order. On Oct. 2, the court denied the motion, finding that the parties’ attorneys had been in contact about the dispute, so there was no need to exclude Camino’s attorney from the process. The issue, the court found, was better suited for a motion for preliminary injunction where both parties could actively participate.

“Under Rule 65(b), a court may issue an ex parte temporary restraining order only if: (1) 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, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Rule 65(b)’s requirements are ‘stringent,’ and temporary restraining orders that are granted ex parte are to be ‘restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.’

“Here, Plaintiff has not sufficiently met its burden of justifying an ex parte restraining order. From Plaintiff’s submissions, it is apparent that counsel for both Plaintiff and Defendant have been in contact with each other over the allegedly infringing trade-dress. What is missing from the application is an adequate explanation of ‘the reasons supporting the claim that notice should not be required.’ Ex parte relief is not appropriate. The Court instead will treat the motion as a request for a preliminary injunction and set a briefing schedule and hearing date.”

TROs are tough to get — especially ex parte TROs. You need to convince the court there’s good reason to exclude the other party from the process. That evidence usually is hard to come by.

The case cite is Ruiz Food Products, Inc. v. Camino Real Foods, Inc., 2009 WL 3234145, No. 09-1731 (E.D. Calif. Oct. 2, 2009).