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LLC v. CKE Restaurants Holdings, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

July 19, 2017

BOJANGLES' INTERNATIONAL, LLC, Plaintiff,
v.
CKE RESTAURANTS HOLDINGS, INC. HARDEES' RESTAURANTS, LLCS, Defendants.

          ORDER

          MAX O. COGBURN .JR. UNITED STALES DISTRICT JUDGE

         THIS MATTER is before the court upon initial review of plaintiff's Motion for Temporary Restraining Order (TRO) and Preliminary Injunction (#5) and defendants' responsive Motion (#13) for Discovery and Entry of a Scheduling Order. Having considered the Motions and reviewed the pleadings, the court enters the following Order.

         I. Background

         Both plaintiff and defendants operate quick-service restaurants around the country. The court is familiar with the products of both companies, especially given the number of locations of both chains within this District and long hours spent on the road.

         On the court's menu today is a case about fried chicken, biscuits, and Cajun spices. Plaintiff asks the court to institute the extraordinary remedy of injunctive relief related to the purported infringement of its trademarks related to its fried chicken products. The trademarks involved in this case include CAJUN FILET BISCUIT and the wordmark or phrase GOTTA WANNA NEEDA GETTA HAVA (hereinafter “Gotta”).

         Plaintiff Bojangles'[1] alleges that defendants (collectively “Hardee's”) infringed on its protected trademarks by labeling a fried chicken filet[2] with Cajun spices with a name close to “Cajun Chicken Fillet Biscuit.” (#6) at 8. In connection with the advertising of this product and its placement on Hardee's menus, the word or words “Gotta Wanna Needa Hava” were allegedly used.[3] (#1) at 7.

         Plaintiff Bojangles' now seeks a temporary restraining order (TRO), preliminary injunction, and expedited hearing in order to enjoin Hardee's from using the purported infringing marks. See (#5). Defendants object to this injunctive relief and have filed a Motion for Discovery and a Scheduling Order, see (#13), and plaintiff has objected. (#15). For the reasons that follows, the emergency relief of a TRO will be denied, limited discovery will be allowed, and a hearing on the plaintiff's request for a preliminary injunction will be set not less than 30 days from entry of this Order.

         II. Applicable Standards

         Applications for issuance of a TRO are governed by Fed.R.Civ.P. 65(b)(1), which provides as follows:

The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Id. The Court notes that “the issuance of an ex parte temporary restraining order [here, parte, inasmuch as defendant has responded] is an emergency procedure and is appropriate only when the applicant is in need of immediate relief.” Wright and Miller, 11A Fed. Prac. & Proc. Civ. § 2951 (3d ed.).

         In evaluating a request for a TRO, the court considers the same factors applied for a preliminary injunction. Pettis v. Law Office of Hutchens, Senter, Kellam & Pettit, No. 3:13-CV-00147-FDW, 2014 WL 526105, at *1 (W.D. N.C. Feb. 7, 2014) (citing Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999)). In assessing such factors, plaintiff must demonstrate that: (1) it is likely to succeed on the merits; (2) it will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in its favor; and (4) the injunction is in the public interest. League of Women Voters of N. Carolina v. N. Carolina, 769 F.3d 224, 236 (4th Cir. 2014), cert. denied, 135 S.Ct. 1735, 191 L.Ed.2d 702 (2015) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

         II. Discussion

         The court has closely reviewed the Verified Complaint (#1) and the parties' Motions (#5 and #13). The court will review the appropriate factors seriatim.

         i. Likelihood of Success on the Merits

         Much like the flavors of a good chicken biscuit, the issues in this case operate on multiple levels. The court must make a determination as to whether plaintiff is likely to succeed on the underlying Lanham Act claim of trademark infringement. Before doing so, the court must ascertain the nature of the marks at issue.

         Plaintiff alleges two classes of trademarks that were allegedly infringed. The first set of trademarks involves a family of items labeled “Cajun, ” including spiced chicken, chicken fillet biscuit, beans, and other “Cajun spiced” food products. (#1) at 4-6. The second trademark category involves the “Gotta” mark, an arbitrary made-up word or phrase. ...


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