Opinion
Civil Action No. 05-cv-01739-WDM-MJW.
June 12, 2007
ORDER
This matter is before me on a show cause order issued December 14, 2006 for plaintiffs to demonstrate this court's jurisdiction. Plaintiffs responded and correctly pointed out that their amended complaint made specific reference to this court's jurisdiction concerning patents, copyrights and trademarks as provided in 28 U.S.C. § 1338. This action concerns such matters and the order to show cause has been satisfied.
Following hearing I had also instructed the plaintiffs' counsel to draft an order granting injunctive relief in accordance with Fed.R.Civ.P. 65 and, if plaintiffs so proposed, suggested language for further accounting from defendant in order to measure damages. Plaintiff submitted an order which is inadequate for many reasons, including the following:
1. It does not identify what are plaintiffs' trademarks and whether they are registered or common law;
2. It does not identify the essential factual findings to establish the required elements of trademark infringement, unfair competition or unlawful appropriation of the plaintiffs' name;
3. It does not make the essential findings for injunctive relief in accordance with the established Tenth Circuit standards of Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980) as they may be modified by O Centro Espirita v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (reaffirming central holding in SLCIFC v. Visa USA, Inc., 936 F.2d 1096 (10th Cir. 1991)).
In order to advance this matter it is ordered that plaintiffs' counsel resubmit a draft order that includes findings of fact that satisfy each of the elements of the claims for relief which plaintiffs believe justify injunctive and other relief. Those factual findings must be based upon the uncontested allegations of the complaint and/or facts presented at hearing. Such draft order shall be submitted by June 29, 2007.