Forever 21 has won the first round in the lawsuit that Puma filed against it last month for allegedly infringing its copyright, patent, and trademark rights in three of the footwear designs from its Fenty collection. In addition to seeking permanent injunctive relief, which would bar the fast fashion giant from selling the shoes at issue indefinitely, Puma asked the court last Wednesday to issue a temporary restraining order, which would serve to force Forever 21 to immediately cease all sales of the shoes, including the Creeper, Bow Slide and Fur Slide styles.
On Friday, Judge Philip S. Gutierrez of the U.S. District Court for the Central District of California ruled against Puma, refusing to grant the temporary restraining order (“TRO”), as Puma did “not show that they are without fault in creating the crisis requiring ex party relief."
For the uninitiated, ex parte relief refers to a judicial proceeding conducted for the benefit of only one party (Puma in our case) and without the other party’s knowledge in order to ensure that such other party is unable to frustrate the actions of the party seeking the injunction. A TRO, the type of ex parte relief that Puma was seeking, is an emergency court order prohibiting an action (Forever 21’s sale of the shoes) until a full hearing can be held for a longer-lasting preliminary injunction. This temporary remedy is only used when there is a threat that irreparable harm will occur too soon to be prevented by a standard motion for injunction, which takes at least three weeks.
According to the court, the law on ex parte relief is “well-settled” in Central District of California. In order to justify ex parte relief, the moving party (Puma here) must establish: (1) that its cause will be irreparably prejudiced if the underlying motion is heard according to regular motion procedures, and (2) that it is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.”
While Judge Gutierrez did not take issue with the first factor, he did hold that Puma failed to show that it is not without fault. According to his decision:
Plaintiffs' ex parte application fails because Plaintiffs have not shown that they are without fault in creating the crisis requiring ex parte relief. Plaintiffs concede that they have been aware of Forever 21's [copying] for some time ... Nevertheless, Plaintiffs claim that a TRO is urgent because Forever 21 will release its next edition of the 'Creeper' shoe on April 6, 2017. As the designers and sellers of the Creeper shoes, however, Plaintiffs surely had ample notice of the date of their own shoe's release, and yet waited until the day before the release to try to get an injunction.
As such, Forever 21 can keep selling the allegedly infringing footwear … at least until the preliminary injunction hearing, which will take place in a couple of weeks.