031115136573

Case 2:12-cv-02009-SJO-DTB Document 50 DISTRICT COURT Priority UNITED STATES Filed 08/13/12 Page 1 of 17 Page ID #:1037 CENTRAL DISTRICT
OF CALIFORNIA CIVIL MINUTES - GENERAL

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CASE NO.: CV 12-02009 SJO (DTBx) TITLE:
DATE: August 13, 2012
Joshua Homme v. Kyuss Lives, Inc., et al.
======================================================================== PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE Victor Paul Cruz Courtroom Clerk COUNSEL PRESENT FOR PLAINTIFFS: Not Present Not Present Court Reporter COUNSEL PRESENT FOR DEFENDANTS: Not Present
======================================================================== PROCEEDINGS (in chambers): ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION [Docket No. 25] This matter is before the Court on Plaintiffs Joshua Homme, Scott Reeder, and Kyuss Partnership's (collectively, "Plaintiffs") Motion for Preliminary Injunction ("Motion"), filed June 27, 2012. Defendants Kyuss Lives, Inc., Kyuss Lives Recording, LLC, John Garcia, and Brant Bjork (collectively, "Defendants") filed an Opposition ("Opposition"), to which Plaintiffs replied ("Reply"). The Court found this matter suitable for disposition without oral argument and vacated the hearing set for July 30, 2012. See Fed. R. Civ. P. 78(b). For the following reasons, Plaintiffs' Motion for Preliminary Injunction is GRANTED IN PART AND DENIED IN PART. I. FACTUAL AND PROCEDURAL BACKGROUND
In 1987, Homme, Garcia, and Bjork, together with Nick Oliveri and Chris Cockrell, formed a rock band known as Katzenjammer. (Decl. of John Garcia in Supp. of Opp'n ("Garcia Decl.") 3, July 9, 2012, ECF No. 29.) In 1989, the band changed its name to Sons of Kyuss and released one eponymous extended play ("EP").1 (Garcia Decl. 4.) The band shortened its name to Kyuss in 1991. (Garcia Decl. 5.) By this time, Chris Cockrell was no longer part of the band. (Garcia Decl. 5.) Kyuss obtained a record contract with Chameleon Music Group in 1991. (Decl. of Brant Bjork in Supp. of Opp'n ("Bjork Decl.") 8, July 9, 2012, ECF No. 30.) The recording contract was between Chameleon Music Group and an entity identified as "Kyuss Partnership." (Bjork Decl. Ex. A.) The parties dispute whether an entity known as Kyuss Partnership actually existed in 1991. Plaintiffs claim that an oral partnership did exist in 1991, with Homme, Garcia, Bjork, and Oliveri as the partners (Decl. of Joshua Homme in Supp. of Mot. ("Homme Decl.") 5, June 27,
An EP is a musical recording containing more music than a single, but is too short to qualify as a full studio album.
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MINUTES FORM 11 CIVIL GEN
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Case 2:12-cv-02009-SJO-DTB Document 50 DISTRICT COURT UNITED STATES Filed 08/13/12 Page 2 of 17 Page ID #:1038 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL
CASE NO.: CV 12-02009 SJO (DTBx)
2012, ECF No. 25-2)2; Defendants highlight the fact that there was no written partnership agreement at the time, and seem to suggest that no partnership existed in 1991 (Bjork Decl. 8; Garcia Decl. 11). The parties agree that the terms of any partnership agreement were not memorialized in writing until 1994, as discussed later. Kyuss released its debut album Wretch in September 1991. (Garcia Decl. 5.) Kyuss was a pioneer in the genre of "desert rock," a style of rock music featuring down-tuned, bass-heavy guitar riffs as the principal framework of the sound. (Homme Decl. 10.) In 1992, the band released its second album, Blues for the Red Sun. (Garcia Decl. 6.) Reeder replaced Nick Oliveri for the band's third album, referred to either as Kyuss or Welcome to Sky Valley, which was released in 1994. (Garcia Decl. 7.) Upon leaving the band in 1992, Oliveri signed a Partnership Settlement Agreement renouncing all his right, title, and interest in and to the band partnership and its assets. (Homme Decl. 6.) Although Bjork was featured on Welcome to Sky Valley, he also left the band before this album was released. (Garcia Decl. 7; Bjork Decl. 9.) Bjork executed a Partnership Settlement Agreement dated June 13, 1993, withdrawing as a partner and affirming that he had no interest in or rights to any assets or goodwill of the Partnership or in the name Kyuss. (Homme Decl. 7 and Ex. A.) On January 1, 1994, Homme, Reeder, and Garcia executed a Partnership Agreement, which formally established the Kyuss Partnership. (Homme Decl. Ex. B.) Among the relevant terms of the partnership agreement is the following: The name under which the Partnership will conduct its business is Kyuss Partnership ("Partnership Name"), or such other name(s) agreed upon by the Partners from time to time. The Partners agree that, notwithstanding anything herein to the contrary, the Partnership Name shall not be used by any Partner separate and apart from the Partnership's use of the Partnership Name. (Homme Decl. Ex. B, at 1.) In 1995, Kyuss released its fourth studio album, ... And the Circus Leaves Town, with new member Alfredo Hernandez. (Garcia Decl. 8.) After the band went on tour to promote ... And the Circus Leaves Town, the group parted ways. (Garcia Decl. 9.) No further studio albums were made with the name Kyuss, and there were no additional music tours by the band Kyuss. (Garcia Decl. 9.) Throughout the band's recording career, Garcia was the only vocalist. (Garcia Decl. 10.) Although Kyuss stopped recording and touring together in 1995, their music continues to generate consistent revenue for the band members. (Homme Decl. 11-12.) In 2000, a compilation album was released entitled Muchas Gracias: The Best of Kyuss. (Homme Decl. 11.)
To the extent this order relies on evidence to which one of the parties has objected, the objection is overruled.
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As some point in time, trademarks were registered to the Kyuss Partnership for the trademark "Kyuss" (the "Kyuss Mark") in Classification 009 (Musical Recordings) and Classification 041 (Education and Entertainment Services). (Decl. of Steven Webb in Supp. of Opp'n ("Webb Decl.") 8, July 9, 2012, ECF No. 31.) However, both of these trademarks were canceled in 2003. (Webb Decl. 8.) The reason for the cancellations has not been explained to the Court. However, another trademark for the Kyuss Mark in Classification 025 (Clothing) was also registered to the Kyuss Partnership, and this trademark has not been canceled. (Webb Decl. 10.) In 2010, Garcia performed around thirty concerts in Europe as Garcia Plays Kyuss, in which he played mostly songs recorded by Kyuss. (Garcia Decl. 27.) Bjork would sit in on drums for a few songs during each Garcia Plays Kyuss show. (Garcia Decl. 27.) In June 2010, Nick Oliveri joined Garcia and Bjork to perform some songs during one of the Garcia Plays Kyuss shows. (Garcia Decl. 28.) On July 21, 2010, Garcia sent Homme an email with a link to a video of Garcia Plays Kyuss. (Garcia Decl. 29.) Homme responded on July 28, 2010, and wrote the following language: "I think Garcia Plays Kyuss is a fantastic idea dude & I'm glad you're doing it. You're breathing new life into our long lost band & blowing peoples [sic] minds whilst doing it. . . . Look, I know you didn't need my blessing to carry out this idea, but I gotta say: for whatever it's worth, I admire what you're doing & I think you're a badass." (Garcia Decl. Ex. D.) The text of this email exchange never references the concept of "Kyuss Lives." In 2010, Garcia had plans of releasing a solo album, Garcia vs. Garcia, in 2011. (Homme Decl. 19.) In November 2010, Garcia, Bjork, and Oliveri announced that they would be touring Europe under the name Kyuss Lives in March and April of 2011. (Garcia Decl. 30.) Garcia informed Homme and Reeder of this plan via email on November 3, 2010. (Garcia Decl. Ex. E.) Garcia wrote: "Just wanted to touch base with you both in regard to what you may or may not have heard about me doing this Kyuss Lives Chapter Two piece. This is being done for one reason and one reason only, to promote Garcia Vs Garcia which will be coming out about this time next year. . . . [T]his is something I do not plan of making a habit of, I assure you . . . ." (Garcia Decl. Ex. E.) Reeder responded the same day, stating: "I think you know that for me, it's everyone involved or nothing . . . ." (Garcia Decl. Ex. E.) Homme did not respond to the email. (Garcia Decl. 30.) However, based on Garcia's email and other statements Garcia had made to the media, Homme believed that the Kyuss Lives tour would be a limited engagement and was solely a promotional tour to promote the forthcoming Garcia vs. Garcia project. (Homme Decl. 19.) The European Tour of Kyuss Lives enjoyed tremendous success. (Garcia Decl. 31.) Based on that success, Garcia, Bjork, and Oliveri booked a Kyuss Lives tour of Australia and New Zealand in May 2011. (Garcia Decl. 31.) In June 2011, Kyuss Lives announced additional concert dates for Europe and North America based on the success of their previous shows. (Garcia Decl. 32.) Because of Oliveri's unavailability, Reeder joined Bjork and Garcia for eleven of the Kyuss Lives shows during 2011. (Garcia Decl. 34.)
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The Kyuss Lives tours were promoted with promotional flyers that included the language "KYUSS LIVES," all in capital letters, with the word "LIVES" in larger font than the word "KYUSS." (Garcia Decl. 36, and Ex. F.) The promotional materials also listed the last names of the individual band members who would be performing. (Garcia Decl. Ex. F.) Homme gave an interview to the Los Angeles Times that was published on October 3, 2011, in which he wished his former band-mates luck in their Kyuss Lives tour. The newspaper quoted him as saying: "I want to shout from the mountaintops: 'Go get 'em, boys!' . . . I'm stoked for them. I hope they blow your mind." (Garcia Decl. Ex. G.) However, Homme informs the Court that at the time he gave this interview, he still believed that Kyuss Lives was a limited engagement that was solely to promote Garcia's solo work, which would bear a different name or mark. (Homme Decl. 21-22.) Homme informs the Court that by January 2012, he had begun to realize that Defendants were not using Kyuss Lives to promote other projects; rather, Kyuss Lives was the main event, with more concert tours planned and new studio recordings under the name Kyuss Lives in the works. (Homme Decl. 23-24.) At Homme's request, a meeting was held on January 25, 2012, that Homme, Homme's manager, Garcia, and Reeder attended. (Homme Decl. 23; Garcia Decl. 41.) Homme expressed his position that he did not want any recordings, including live recordings, released under the name Kyuss Lives. (Homme Decl. 24.) However, no agreement was reached at this meeting. (Garcia Decl. 41.) On February 20, 2012, a hard rock gossip web site published the news that Kyuss Lives was mixing a live record. (Homme Decl. 25.) On September 9, 2011, a lawyer working for Defendants filed applications to register trademarks for Kyuss Lives under Classifications 009 (Musical Recordings), 041 (Education and Entertainment Services), and 025 (Clothing). (Webb Decl. 4.) Noting that the trademarks for Kyuss had been canceled in the Classifications for Musical Recordings and Entertainment, Defendants' lawyer submitted applications for trademarks for "Kyuss" in these classifications as well. (Webb Decl. 4, 7-9.) Realizing that there was a live trademark registered to the Kyuss Partnership for the Kyuss Mark in the Clothing Classification, Defendants' lawyer also filed a Declaration of Continuing Use and Incontestability with respect to this trademark. (Webb Decl. 5, 10.) Plaintiffs believe that Defendants are trying to steal the rights not only to the trademark Kyuss Lives, but also to the trademark for Kyuss. (Homme Decl. 24.) Defendants' trademark applications for Kyuss and Kyuss Lives were published for opposition on February 21, 2012, and Homme became aware of them two days later. (Homme Decl. 26.) Homme initiated Opposition proceedings against these trademark applications. (Homme Decl. 27.) Homme filed this action on March 9, 2012. On May 21, 2012, with the Court's permission, a First Amended Complaint ("FAC") was filed, adding Reeder and the Kyuss Partnership as Plaintiffs. The FAC states causes of action for: (1) statutory trademark infringement; (2) federal statutory and common law false designation of origin and/or unfair competition; (3) misrepresentation and passing off; (4) common law trademark infringement; (5) unfair competition under California
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statutes; (6) common law unfair competition; and (7) false advertising. (See generally FAC, May 21, 2012, ECF No. 19.) On May 21, 2012, Rolling Stone Magazine published an interview with Bjork and Garcia that stated, among other things, that Defendants had a record deal and would begin recording in July. (Homme Decl. 29-30.) On June 27, 2012, Plaintiffs filed the instant Motion for Preliminary Injunction. Plaintiffs seek an order from the Court enjoining Defendants from using the Kyuss Mark or any mark containing the Kyuss Mark, including the mark Kyuss Lives. (Mot. 1, June 27, 2012, ECF No. 25.) II. DISCUSSION A. Legal Standard
"A preliminary injunction is an extraordinary and drastic remedy." Munaf v. Geren, 553 U.S. 674, 689 (2008) (internal quotation marks omitted). The decision to grant a preliminary injunction is committed to the sound discretion of the trial court. See L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). Courts may issue an injunction only "upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). In Winter, the Supreme Court articulated the following test for preliminary injunctions: A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest. Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1187 (9th Cir. 2011) (quoting Winter, 555 U.S. at 20) (alterations in original). Under an "alternate formulation of the Winter test," the Ninth Circuit has held that a court can issue a preliminary injunction where "serious questions go to the merits and a balance of hardships [] tips sharply towards the plaintiff . . . so long as the plaintiff also shows the likelihood of irreparable injury and that the injunction is in the public interest." Farris v. Seabrook, 667 F.3d 1051, 1057 (9th Cir. 2012) (internal quotation marks omitted). B. Analysis 1. Likelihood of Success
In order to obtain a preliminary injunction, Plaintiffs must show that they have a likelihood of success on the merits. In the instant case, this means Plaintiffs must show that they are likely to prevail on two separate points: (1) that Plaintiffs have intellectual property rights in the Kyuss Mark that allow them to prevent others (including Defendants) from using the Kyuss Mark; and (2) that Defendants have made unauthorized use of the Kyuss Mark or a confusingly similar mark. The
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Court will analyze each of these points to determine if Plaintiffs have displayed a likelihood of success on the merits. a. Plaintiffs' Ownership of the Kyuss Mark
As discussed above, at some point in time, trademarks for the Kyuss Mark were registered to the Kyuss Partnership. These trademarks were canceled in two classifications (music recordings and entertainment services), but the trademark is live in a third classification (clothing). Regardless of whether the registered trademark is live or has been canceled, it is the use of the mark in commerce that establishes the trademark right, not merely the registration of the mark. "It is axiomatic in trademark law that the standard test of ownership is priority of use. To acquire ownership of a trademark it is not enough to have invented the mark first or even to have registered it first; the party claiming ownership must have been the first to actually use the mark in the sale of goods or services." Sengoku Works Ltd. v. RMC Int'l Ltd., 96 F.3d 1217, 1219 (9th Cir. 1996). There is no question that, in the instant case, the Kyuss Partnership used the mark Kyuss in commerce at least as early as 1994 (and likely earlier, assuming that the Kyuss Partnership existed prior to 1994). Moreover, the Kyuss Mark has been used in commerce in the fields of music recordings and entertainment consistently to the present, as the Partnership continues to offer Kyuss's previouslyrecorded music for sale, and the audio recordings continue to generate revenue. Even a disbanded performing group does not abandon its trademark rights to the group name so long as it continues to promote the sales of recordings made while the group was active. Kingsmen v. KTel Int'l, Ltd., 557 F. Supp. 178, 183 (S.D.N.Y. 1983) ("Even though plaintiffs disbanded their group in 1967 and ceased recording new material, there is no evidence suggesting that they failed to use the name Kingsmen during the period from 1967 to the present to promote their previously recorded albums. Moreover, the fact that these individuals continue to receive royalties for Kingsmen recordings flies in the face of any suggestion of intent to abandon use of the name Kingsmen. These plaintiffs have no more abandoned their right to protect the name of Kingsmen than have The Beatles, The Supremes or any other group that has disbanded and ceased performing and recording, but continues to collect royalties from the sale of previously recorded material."). The parties have not explained to the Court why two of the trademark registrations for the Kyuss Mark were canceled, but it does appear that the Kyuss Mark was first used in commerce in either 1989 or 1991, and it has been in continuous use since that date. The more complicated question is which entity holds the right to the Kyuss Mark, a mark that has been in continuous use since 1989 or 1991. Although Defendants highlight the fact that the terms of the Kyuss Partnership were not memorialized in writing until 1994, the evidence proffered supports Plaintiffs' position that an oral partnership agreement was in place since at least 1991. In 1987, a group of individuals banded together with a common purpose - recording music, releasing music recordings for sale, giving live concerts - and an intent to split any resultant profits. As of 1991, this group referred to itself as Kyuss, and it was comprised of four members.
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Notwithstanding the fact that there was no formal, written partnership agreement at the time, when the band members entered into a recording contract with Chameleon Music Group in 1991, they entered the contract as Kyuss Partnership. (Bjork Decl. Ex. A.) Notwithstanding the fact that there was no formal, written partnership agreement at the time, when two of the band members left the band - Nick Oliveri in 1992 and Bjork in 1993 - they signed a Partnership Settlement Agreement renouncing their rights and interest in the band partnership and its assets. (Homme Decl. 6-7, and Ex. A.) Plaintiffs have succeeded in showing that a partnership existed even before the formal partnership agreement was drafted in 1994. This partnership was created at least as early as 1991. It was initially comprised of Homme, Garcia, Bjork, and Nick Oliveri. In 1992, Nick Oliveri left the partnership and Reeder joined the partnership. In 1993, Bjork left the partnership. The Court is not convinced by Defendants' argument that because the 1994 Partnership Agreement states that the Partners "form a general partnership," that therefore a partnership must not have existed before that time. The Court finds that Plaintiffs have shown a high likelihood of success on the merits in their argument that a partnership existed beginning in at least 1991, and that this partnership was formalized in 1994. The trademarks, when registered, were registered to the entity Kyuss Partnership. Thus, the Kyuss Partnership was the entity that held the trademarks rights to the Kyuss Mark. As the Court has explained, even absent registration, the Kyuss Mark belongs to the Kyuss Partnership, as it was the Kyuss Partnership that recorded music under the name Kyuss, toured and gave musical performances under the name Kyuss, and sold Kyuss-branded merchandise. Defendants argue, however, that the Kyuss Partnership no longer exists. (Opp'n 13-15.) Interestingly, Defendants do not actually argue what becomes of the rights to Kyuss Mark in the event that they are correct that the Kyuss Partnership has terminated. Is it their position that the Kyuss Mark has been abandoned, such that anyone could begin to use it in commerce and claim priority of use? This result seems unlikely in light of the rule espoused in Kingsmen, 557 F. Supp. at 183. Is it their position that each of the former partners has the right to use the Kyuss Mark individually? This result is frowned upon. [W]hen an entity is dissolved and the business symbolized by the mark is divided among the separate participants, the potential arises for multiple and fragmented ownership of the trademark property. Under the 'Customer Protection' policy, good will symbolized by a mark should be an indivisible asset. If upon dissolution, good will and its trademark symbol is apportioned among owners of the dissolved entity, the ensuing fragmented use can lead to customer confusion. Such confusion can lead to destruction of the mark's ability to identify and distinguish a single source. J. Thomas McCarthy, 2 McCarthy on Trademarks and Unfair Competition 16.40 (4th ed. 2012.) Furthermore, "A court should apply the relevant state law governing dissolution in such a way as to prevent multiple, fragmented trademark use. . . . For example, in a trademark dispute between
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the manager and performers of a performing group, it is not proper to split the mark and allow both parties to use it." Id. at 16.44. Not even Defendants seem to know what happens to the Kyuss Mark assuming the Kyuss Partnership terminated; notwithstanding this ambiguity, the Court finds that Plaintiffs have demonstrated a likelihood of success on the merits regarding their argument that the Kyuss Partnership has not terminated, but rather, it is an extant entity. Defendants put forth two main arguments to support their position that the Kyuss Partnership is no longer. First, they point to paragraph 15(a)(iii) of the Partnership Agreement, which provides: Dissolution. The Partnership will be dissolved upon the first to occur of the following events . . . The expiration of the term. (Homme Decl. Ex. B, at 15(a)(iii).) The term of the Kyuss Partnership "will start as of the date hereof [January 1, 1994], and will continue for ten (10) years thereafter, unless the Partnership is earlier terminated and dissolved." (Homme Decl. Ex. B, at 4.) Defendants direct the Court to this language to argue that the Partnership dissolved on January 1, 2004. (Opp'n 13-15.) However, pursuant to California Corporations Code section 16406, "If a partnership for a definite term . . . is continued, without an express agreement, after the expiration of the term . . . the rights and duties of the partners remain the same as they were at the expiration or completion, so far as is consistent with a partnership at will." Cal. Corp. Code 16406(a). Plaintiffs argue that, with Garcia's consent and participation, the Kyuss Partnership has continued to operate after the expiration of the term, and thus the Kyuss Partnership continues to be an extant entity. Plaintiffs have presented evidence that since the end of the term of the Partnership Agreement, the Kyuss Partnership has continued to administer and distribute income to the partners (including Garcia), and has regularly filed tax returns, including for 2011. (Homme Decl. 12-15.) By 2007, the former members of Kyuss became aware that counterfeit apparel and other merchandise using the Kyuss Mark were being made and sold. (Homme Decl. 16.) Homme suggested that the Kyuss Partnership should seek out licensing opportunities for ancillary merchandise, so that fans of the group could purchase authorized Kyuss merchandise. (Homme Decl. 16.) Garcia and Reeder agreed and signed a document dated February 22, 2007, authorizing such merchandise. (Homme Decl. 16, and Ex. D.) In 2010, Garcia took a personal loan against the Kyuss Partnership's income. (Homme Decl. 17, and Ex. E.) Finally, on December 21, 2011, Garcia assisted in filing a Declaration of Continuing Use and Incontestability with the U.S. Patent and Trademark Office in the name of the Kyuss Partnership to preserve the rights to the Kyuss Mark that was registered to the Kyuss Partnership. (Homme Decl. 20, and Ex. G; Webb Decl. 10.) Under the Corporations Code, "If the partners . . . continue the business without any settlement or liquidation of the partnership, they are presumed to have agreed that the partnership will continue" past the expiration of the term. Cal. Corp. Code 16406(b). Moreover:
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At any time after the dissolution of a partnership and before the winding up of its business is completed, all of the partners [] may waive the right to have the partnership's business wound up and the partnership terminated. In that event [] [t]he partnership resumes carrying on its business as if dissolution had never occurred . . . . Cal. Corp. Code 16802(b). Plaintiffs have established a likelihood of success on the merits regarding their argument that the Kyuss Partnership has not dissolved, but is rather an extant entity, notwithstanding the fact that the express 10-year term of the partnership expired.3 Defendants' other argument is that the purpose of the Kyuss Partnership was to operate as a fulltime musical band, and because the partners no longer operate as a full-time musical band, the Kyuss Partnership must have dissolved and terminated. (Opp'n 5-6, 13-15.) Defendants point to paragraphs 11.1(a) and 11.2 of the Partnership Agreement, which state that the "Partners shall furnish to the Partnership exclusively . . . such Partner's Services," and "no Partner will enter into an agreement to perform, nor will any Partner perform, as a featured member of a recording and/or performing musical group other than the Group . . . ." (Homme Decl. Ex. B, at 11.1(a), 11.2.) Defendants proffer evidence that after 1995, all of the Partners, including Homme, have performed as featured members of other musical groups besides Kyuss. (Garcia Decl. 26.) That the Partners ceased performing as Kyuss and began performing as members of other musical groups simply means that the Partners may have breached the terms of the Partnership Agreement, not that the Partnership has dissolved or terminated. The Partnership Agreement defines the "character of business" of the Partnership as follows: The business of the Partnership [] is to promote and enhance the professional standing, reputation and success of the Group and to commercially exploit, and to license or authorize others to do so [] throughout the universe in all manners and media . . . the following, and all results and proceeds thereof: (a) the Partners' respective entertainment services [], including [] the creation and performance of music [], audio and/or visual recording, broadcast appearances, literary, theatrical, video, film and/or dramatic performances related thereto and any and all similar or dissimilar services, of the Partners in their capacity as members of the Group []; (b) all right, title and interest in and to the Partners' respective names, photographs, likenesses, voices and other identifying features and characteristics,
This analysis is unaffected by Defendants' argument that an earlier draft of the Partnership Agreement listed a partnership term of 75 years, but this term was shortened to 10 years. (Opp'n 4-5.)
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Case 2:12-cv-02009-SJO-DTB Document 50 Filed 08/13/12 Page 10 of 17 Page ID UNITED STATES DISTRICT COURT #:1046 CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL
and biographical materials, in their capacity as members of the Group . . .; and (c) the Group Name. (Homme Decl. Ex. B, at 2 (emphases added).) Thus, one of the goals of the Partnership, as expressed in the Partnership Agreement, was to commercially exploit the Group's audio recordings, a goal that the Partnership has continued to pursue without stop since the Partnership Agreement was formalized. (See Suppl. Decl. of Joshua Homme in Supp. of Mot. ("Suppl. Homme Decl.") 8 (listing licensing agreements the Partnership has entered for Kyuss's songs to be used in video games and television shows through 2009), July 27, 2012, ECF No. 47.)4 That the Partnership Agreement also anticipated that the Partnership would continue to commercially exploit the Partners' live performances and record new music does not mean that the Partnership dissolves if the Partners stop performing and recording together as a group. Notwithstanding Defendants' arguments that the Kyuss Partnership has dissolved or terminated, the Court finds that Plaintiffs have established a likelihood of success on their argument that the Kyuss Partnership exists and owns trademark rights to the Kyuss Mark.5 b. Defendants' Unauthorized Usage
It is undisputed that Defendants have used the mark "Kyuss Lives." Plaintiffs also present evidence that Defendants used the mark "Kyuss," even without the word "Lives," to promote their musical endeavors. The Facebook page for Kyuss Lives includes the following language: "Kyuss Presents Chapter Two . . . and the Legacy Continues." (Decl. of Gabriel Miller in Supp. of Mot. ("Miller Decl.") 11 and Ex. N, July 27, 2012, ECF No. 46-3.)6 One of the photo albums on the website is entitled: "Kyuss Photo Contest." (Miller Decl. 12.) The timeline on the Facebook page states that the group was founded in 1989, which is the year Kyuss was founded (as Sons of Kyuss), not the year Kyuss Lives was founded. (Miller Decl. 11.) Obviously, unauthorized use of the Kyuss Mark constitutes a violation of the Kyuss Partnership's trademark rights.
4
Defendants argue that Plaintiffs have improperly introduced new evidence in their Reply. (Defs.' Obj. to Ev., July 27, 2012, ECF No. 48.) However, Defendants have suffered no prejudice from this "late" introduction of evidence, as the evidence presented simply informs the Court of facts Defendants already knew prior to the filing of this action, such as the licensing agreements to television games and video games for Kyuss's music. The Court overrules Defendants' objections to the evidence Plaintiffs submitted on Reply. Defendants' argument that the Kyuss Partnership does not have any trademark rights to the Kyuss Mark because the Partnership Agreement nowhere states that it owns rights to the Kyuss Mark or otherwise mentions trademarks (Opp'n 12-13) is specious. The Partnership Agreement need not list every asset of value owned by the Partnership or risk a judicial forfeiture of said asset.
The Kyuss Lives Facebook page is publicly-available. The Court takes judicial notice of the content of this web page.
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Defendants put forward two arguments for why their use of the Kyuss Mark and the mark "Kyuss Lives" (the "Kyuss Lives Mark") do not violate trademark law. First, they argue that Garcia is an authorized user of the Kyuss Mark. Second, they argue that the Kyuss Lives Mark is not likely to cause customer confusion. Neither argument has merit. In support of their argument that Garcia is authorized to use the Kyuss Mark, Defendants note that the Partnership Agreement only forbids the Partners from using the Partnership Name for any purpose "separate and apart from the Partnership's use" of the Partnership Name. (Opp'n 6-7 (citing Homme Decl. Ex. B, at 1).) Defendants note that the Partnership Name is "Kyuss Partnership"; it is the Group Name that is Kyuss, and Defendants have not used the name "Kyuss Partnership" at all. (Opp'n 6-7, 16.) The Court is not convinced. The Partnership's right to the Kyuss Mark stems not from the Partnership Agreement, but from trademark law and the Partnership's continuous use in commerce of the Kyuss Mark since (at the latest) 1991. Thus, by operation of trademark law, wholly independent of the terms of the Partnership Agreement, the Partnership has the authority to prevent others from infringing on its trademark, including an individual Partner who without authorization uses the Kyuss Mark for purposes other than the Partnership business. Even without an explicit provision on the point, the Partners are not permitted to use the Partnership's assets (such as trademarks) for non-Partnership business without the approval of a majority of the Partners. Thus, Defendants' argument that Garcia is permitted to use the Kyuss Mark because there is no provision in the Partnership Agreement explicitly forbidding him from using it is unpersuasive.7 Defendants also argue that with respect to their usage of the Kyuss Lives Mark, there is no likelihood of customer confusion. (Opp'n 16-17.) In order to determine whether a likelihood of confusion exists, the Ninth Circuit relies on an eight-factor test: (1) strength of the mark; (2) proximity or relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) types of goods and degree of care likely to be exercised by the purchaser; (7) defendant's intent in selecting the mark; and (8) likelihood of expansion of the product lines. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979); see also Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 631 (9th Cir. 2005). Defendants focus on the third and fourth factors. They argue that because Kyuss Lives has the additional word "Lives" and because this additional word is displayed prominently wherever the mark is used, the marks are not confusingly similar. Even putting aside for the moment the fact that Plaintiffs have presented evidence that Defendants occasionally use the Kyuss Mark without the word "Lives," the Court finds that "Kyuss Lives" is confusingly similar to "Kyuss." An ordinary
Moreover, after the filing of the FAC, Homme and Reeder expelled Garcia from the Partnership pursuant to paragraph 14.3 of the Partnership Agreement. (Suppl. Homme Decl. 15.) Thus, even if Garcia was allowed to use the Group Name for non-Partnership business while he was a Partner (which he was not), such use would have become unauthorized upon his expulsion.
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consumer could easily be forgiven for missing the fact that "Lives" is even part of the mark. A poster containing the phrase "Kyuss Lives" could just as easily be construed to mean that Kyuss the same Kyuss that recorded desert rock music in the early 1990's - continues to live, as opposed to simply listing the name of a new band, with the group name "Kyuss Lives." (Similarly, if a poster advertising a concert had the words "No Doubt, Forever" most consumers would think that the band No Doubt was performing, as opposed to thinking that a new, unrelated band named "No Doubt, Forever" would be giving a performance.) Indeed, this impression is precisely the impression that Defendants were trying to foster when they picked their new group name. They want the audience to think that they are watching Kyuss - the old Kyuss, the Kyuss that made the music you know and love - perform. If this were not the desired effect, Defendants could have picked any name under the sun. Defendants admit that their "motivation in choosing the mark was meant to signify a new group including former members of Kyuss that would play Kyuss songs." (Opp'n 17.) While Defendants might be entitled to play Kyuss songs at concerts and while Defendants might be entitled to advertise themselves as former members of Kyuss, the one thing they are not permitted to do without authorization from the Partnership is use or otherwise infringe upon the Kyuss Mark. Defendants suggest that because the promotional materials for the Kyuss Lives concerts list the last names of the individual performers, no consumer will mistakenly think that Homme is performing in Kyuss Lives. (Opp'n 17.) This is irrelevant. For Defendants to have infringed on Plaintiffs' trademark, it need not be shown that consumers mistakenly believe that Homme is part of Kyuss Lives; rather, consumers must mistakenly believe that Kyuss Lives has the same origin or is somehow associated with the band Kyuss. And in this respect, the Kyuss Lives mark is incredibly confusing. The name "Kyuss Lives" implies that the band Kyuss got back together to perform after a long hiatus. Even if every consumer understands that Homme is not part of this reunion, they still would think that this band is a reincarnation of Kyuss and wonder why Homme is not part of it. (However, it is unlikely that every consumer even realizes that the composition of Kyuss Lives is any different than the composition of Kyuss. Many bands have fans who cannot name each individual musical artist in the band.) The Court concludes that tacking on a generic word (Lives) to the end of a mark comprised of a highly-fanciful word (Kyuss) is insufficient to avoid customer confusion. The Court finds that Plaintiffs have established a likelihood of success on the merits regarding their argument that Defendants infringed their trademark. Thus, the Court finds that the first requirement for a preliminary injunction - likelihood of success on the merits - has been satisfied. 2. Irreparable Harm
"In each case, the Court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested [preliminary injunction]." Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). Plaintiffs claim that they will suffer irreparable harm if Defendants are permitted: (1) to continue touring as Kyuss Lives; or (2) to begin recording and releasing music as Kyuss Lives during the pendency of this lawsuit. (Mot.
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15-16.) They seek an injunction that would enjoin Defendants from using the Kyuss Mark or a confusingly similar mark in conjunction with either live musical performances or audio recordings. Plaintiffs rely on two primary types of harm that they claim they will suffer: (1) harm to the brand's legacy and reputation; and (2) loss of sales for Kyuss music and merchandise. (Mot. 15-16.) Defendants counter, without any legal support, that injury to the band's "legacy" is not a recognized legal harm. (Opp'n 18.) The Court disagrees. As an initial matter, it is clear that Plaintiffs' use of the word "legacy" is a reference to the band's reputation. Reputational harm is a legally-recognized injury. The purpose of trademark law is to permit the owner of a mark to control the use of that mark in commerce, so that consumers can see the mark in commerce and immediately identify the source. A mark can come to represent a certain level of quality, craftsmanship, or value. In the recording industry, a mark could represent a certain sound, style, or image. If a mark does not identify a single source, the benefit of using the mark immediately diminishes. For this reason, courts historically have presumed irreparable injury upon a showing of likelihood of success on the merits in trademark cases. See, e.g., Abercrombie & Fitch Co. v. Moose Creek, Inc., 486 F.3d 629, 633 (9th Cir. 2007) ("[I]n a trademark case . . . [i]rreparable injury is ordinarily presumed upon a showing of a likelihood of success."). Defendants argue that this presumption is no longer valid in the wake of the Supreme Court's decision in Winter. Winter held that the issuance of a preliminary injunction required that it be likely a plaintiff would suffer irreparable harm in the absence of the injunction, rather than merely possible. Winter, 555 U.S. at 20-21. However, Winter was not a trademark case, and it said nothing specifically about the presumption of irreparable harm in trademark cases. Indeed, the case Defendants cite for the proposition that the presumption of irreparable harm no longer applies post-Winter actually found that plaintiff had shown a likelihood of irreparable harm and the preliminary injunction was granted. CytoSport, Inc. v. Vital Pharm., Inc., 617 F. Supp. 2d 1051 (E.D. Cal. 2009). In CytoSport, the Court noted: Trademarks serve as the identity of their owners and in them resides the reputation and goodwill of their owners. Thus, if another person infringes the marks, that person borrows the owner's reputation, whose quality no longer lies within the owner's control. A trademark owner's loss of the ability to control its marks, thus, creates the potential for damage to its reputation. Potential damage to reputation constitutes irreparable injury for the purpose of granting a preliminary injunction in a trademark case. Id. at 1080. The CytoSport court went on to state that the plaintiff had shown a likelihood of irreparable harm simply because the defendant's use of the plaintiff's mark would "prevent [the plaintiff] from controlling the reputation of its highly recognizable and valuable [] brand." Id. at 1081. Thus, the very case Defendants cite for the proposition that the presumption of irreparable injury no longer applies post-Winter appears to apply just that presumption. Other post-Winter cases have explicitly continued to apply the presumption of injury. See, e.g., Super-Krete Int'l, Inc. v. Sadleir, 712 F. Supp. 2d 1023, 1037 (C.D. Cal. 2010) ("In a trademark injury case, irreparable
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injury is ordinarily presumed upon a showing of a likelihood of success." (citing Abercrombie, 486 F.3d at 633)). In the instant case, the Court finds that if Defendants were to continue touring as Kyuss Lives during the pendency of this action, Plaintiffs would likely suffer irreparable harm. They would no longer control the reputation of the Kyuss Mark, which the Partnership owns. The Kyuss Mark could come to be associated not with the Kyuss Partnership, but with Defendants. Similarly, if Defendants were to begin recording as Kyuss Lives and releasing music for sale under the Kyuss Lives Mark, Plaintiffs would likely suffer irreparable injury for the same reasons. Plaintiffs also contend that they are likely to suffer irreparable injury based on the loss of potential customers, because people who attend Kyuss Lives concerts or purchase Kyuss Lives audio recordings are less likely to purchase the original Kyuss audio recordings. (Mot. 15-16.) The Court does not agree that live concerts are substitute goods for music recordings; absent supporting evidence, the Court will not assume that an individual who attends a Kyuss Lives concert would be less likely to purchase a Kyuss audio recording. As Defendants point out, Kyuss Lives has been touring under the Kyuss Lives Mark since November 2010; if the concerts had caused an appreciable reduction in the sales of Kyuss audio recordings, Plaintiffs should have presented evidence of such effect to the Court. (Opp'n 18.) Plaintiffs have expressed no desire to give concerts as Kyuss (and have not done so since 1995), so the Kyuss Lives concerts cannot possibly draw customers away from Plaintiffs' own concerts. However, if Defendants were to release new music recordings, whether studio recordings or live, there is a strong possibility that these recordings would siphon customers away from Plaintiffs' sale of the original Kyuss recordings that are still offered for sale. It is undisputed that many of the songs Kyuss Lives performs are the same songs originally recorded by Kyuss. If Defendants were to release new recordings of these songs under the name Kyuss Lives, customers could opt to purchase the Kyuss Lives version mistakenly believing that they were purchasing the original Kyuss version. See Kingsmen, 557 F. Supp. at 182-83. The Court finds that with respect to the release of audio recordings, the loss of potential customers presents another likelihood of irreparable harm to Plaintiffs should the injunction not be granted. However, the Court should not look merely to the harm to Plaintiffs if the preliminary injunction is not granted. The Court must also look at the harm to Defendants if the preliminary injunction is granted. Amoco, 480 U.S. at 542. Defendants are in the midst of a series of concerts that have already been booked under the name Kyuss Lives. (Garcia Decl. 48.) To enjoin Defendants from using the Kyuss Lives Mark in conjunction with these concerts would result in irreparable harm not only to Defendants, but also to the concert venues, concert promoters, and fans who have purchased tickets to these events. This level of harm somewhat counteracts the irreparable harm to Plaintiffs regarding the use of the Kyuss Lives Mark for live concerts. Defendants also point out that they are "poised to receive" a $300,000 advance in connection with the anticipated release of an album under the name Kyuss Lives, and a $35,000 payment in connection with a live album that has already been recorded. (Garcia Decl. 48.) The Court is
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not sure what is meant by the phrase "poised to receive." From the evidence presented, it is not clear how close Defendants are to actually inking the deal and receiving this money. They could be in preliminary negotiations, they could have a signed contract, the albums could be nearly finalized and ready to drop, etc. Because Defendants have not presented the Court with copies of any contracts for audio recordings of Kyuss Lives's music, the Court does not believe that the negotiations concerning the music albums are so far along in the process that they could not be altered to provide for the release of the albums under a different group name. The Court finds that Defendants have not shown a likelihood of irreparable harm if the Court were to issue an injunction regarding the release of audio recordings or albums. 3. Balance of Equities
For a preliminary injunction to be appropriate, the balance of equities must tip in Plaintiffs' favor. The Court finds that with respect to the concert engagements, the equities do not tip in Plaintiffs' favor. Both Homme and Reeder engaged in actions and made statements suggesting that Defendants were permitted to use the Kyuss Lives Mark for concert engagements. Reeder actually performed with Defendants as part of Kyuss Lives on eleven separate occasions in 2011. Homme expressed his support for the Kyuss Lives concert tour to the Los Angeles Times in 2011. The Court does not suggest that this conduct necessarily results in promissory estoppel, but this conduct shows that Defendants were not wrong at the outset for thinking that they had Plaintiffs' permission to use the Kyuss Lives Mark. By now, of course, Defendants have likely recognized the folly of attempting to establish a brand under a mark for which permission is required, as that permission can be revoked. Homme argues that his statements of support for the Kyuss Lives concert tour were made at a time when he believed that Kyuss Lives was a limited venture that was intended to support Garcia's solo projects. Even so, Homme must take some of the blame for giving what appeared to be an open-ended endorsement of the Kyuss Lives concert tour. If Homme was only comfortable with Kyuss Lives so long as it was a limited engagement, he should have explained this limitation to Defendants earlier, and the parties could have hopefully come to an agreement regarding how many concerts would be permitted under the name Kyuss Lives. With respect to the concert tours, the Court finds that the balance of equities do not tip in Plaintiffs' favor. There is no suggestion that Homme or Reeder gave their endorsement for the use of the Kyuss Lives Mark in conjunction with albums or audio recordings. Indeed, the evidence shows that Garcia actually misled Plaintiffs with respect to his plans for audio recordings. Garcia's email to Homme and Reeder wherein he explained the upcoming Kyuss Lives concert tour stated: "Just wanted to touch base with you both in regard to what you may or may not have heard about me doing this Kyuss Lives Chapter Two piece. This is being done for one reason and one reason only, to promote [the] Garcia Vs Garcia [album] which will be coming out about this time next year." (Garcia Decl. Ex. E.) Garcia informed Plaintiffs that while the concert tour would be called Kyuss Lives, the album and other music recordings would be called Garcia vs. Garcia. At least as early as January 2012, Homme informed Defendants in no uncertain terms that he did not want them releasing any recorded music under the name Kyuss Lives. (Homme Decl. 24.) Garcia's
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misinformation leads the Court to conclude that with respect to audio recordings, the balance of equities tips in Plaintiffs' favor. 4. The Public Interest
Defendants argue that the public has expressed a clear interest in seeing Kyuss Lives shows, as demonstrated by the success of their past concerts. (Opp'n 20.) Plaintiffs urge that the public interest requires an assurance to consumers that products branded with the Kyuss Mark (or a confusingly similar mark) have the imprimatur of the mark's owner, the Kyuss Partnership. Both sides make decent arguments with respect to the public interest. However, Defendants' argument is stronger with respect to the concert tour than with respect to audio recordings. Defendants have not yet released any recorded music under the Kyuss Lives Mark, and there is no clearlydemonstrated demand for such a product. However, even with respect to the concerts, the Court finds that the public interest more strongly favors the clarity in designation of origin that trademark law provides, compared to the public interest in providing fans access to the Kyuss Lives shows in which they are interested. Moreover, the injunction Plaintiffs seek would not prevent Defendants from giving live performances or from performing any specific music; it would only prevent them from using the Kyuss Lives Mark, which is confusingly similar to the Kyuss Mark. If the public is interested in seeking Garcia, Bjork, and Nick Oliveri perform Kyuss songs live, such concerts can still take place even if the preliminary injunction is entered; Defendants simply could not call themselves Kyuss Lives while giving these concerts. 5. Aggregation of the Factors
For a preliminary injunction to be appropriate, each of the four factors must be satisfied. It is not a sliding scale on which the strength of one factor can make up for the absence of another. A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest. Avanti Health Sys., 661 F.3d at 1187 (emphasis added) (citation omitted). Plaintiffs have shown a likelihood of success on the merits with respect to both concert tours and audio recordings. They have shown a likelihood of irreparable harm with respect to both concert tours and audio recordings, although the degree of irreparable harm is greater with respect to the audio recordings. They have shown that the public interest favors a preliminary injunction with respect to both concert tours and audio recordings, although the public interest is more strongly in Plaintiffs' favor with respect to the audio recordings. However, Plaintiffs have only shown that the equities tip in Plaintiffs' favor with respect to the audio recordings. With respect to concert performances, Plaintiffs must take some degree of the blame for initially expressing approval of the Kyuss Lives concerts and later rescinding the approval (or for giving limited authorization but failing to clearly delineate the limits of this authorization).
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The Court will issue a preliminary injunction prohibiting Defendants from using the Kyuss Mark in any capacity unless the word "Lives" follows the word "Kyuss" in equally-prominent lettering. The Court will issue a preliminary injunction prohibiting Defendants from using the Kyuss Lives Mark in conjunction with any studio album, live album, or other audio recording. The Motion is denied, however, with respect to Plaintiffs' request that Defendants be enjoined from using the Kyuss Lives Mark in conjunction with concerts and live performances. Defendants are warned, however, that future concerts under the Kyuss Lives Mark might continue to subject them to liability for trademark infringement. It may be in Defendants' best interest to begin re-branding under a new name. C. Bond
Federal Rule of Civil Procedure 65(c) provides: "The court may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." Fed. R. Civ. P. 65(c). Defendants argue for a bond of $1,000,000. However, this figure was calculated on the assumption that the injunction would enjoin both recordings and concerts. With respect to recordings, Defendants have presented evidence that they were "poised" to receive $335,000 for audio recordings under the Kyuss Lives Mark. Defendants have not shown the Court, however, that their recording deals will completely fall through if they are not permitted to use the Kyuss Lives Mark. It is likely that Defendants could still obtain a recording deal under a different name, although the value of the deal may be diminished as the new name would not have the same level of customer recognition. The Court imposes a bond requirement of $200,000. III. RULING
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion for Preliminary Injunction. The Court concludes and orders as follows: 1. 2. Defendants are preliminarily enjoined from using the Kyuss Mark in commerce unless the word "Lives" immediately follows the word "Kyuss" in equally prominent lettering; Defendants are preliminary enjoined from using the Kyuss Lives Mark in conjunction with any musical album, studio album, live musical performance album, or other audio or visual recording; Notwithstanding this preliminary injunction, Defendants are permitted to make truthful factual statements that utilize the word "Kyuss," such as referring to Garcia and Bjork as former members of the band Kyuss; and Plaintiffs shall post a $200,000 bond within 14 calendar days of the date of this order.
3.
3.
IT IS SO ORDERED.
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Case 2:12-cv-02009-SJO-DTB Document 50 DISTRICT COURT Priority UNITED STATES Filed 08/13/12 Page 1 of 17 Page ID #:1037 CENTRAL DISTRICT

OF CALIFORNIA CIVIL MINUTES - GENERAL

CASE NO.: CV 12-02009 SJO (DTBx) TITLE:

DATE: August 13, 2012

Joshua Homme v. Kyuss Lives, Inc., et al.

MINUTES FORM 11 CIVIL GEN

CASE NO.: CV 12-02009 SJO (DTBx)

DATE: August 13, 2012

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