Opinion
Case No. 6:20-cv-2013-Orl-37DCI
12-14-2020
MALICIOUS WOMEN CANDLE COMPANY, LLC, Plaintiff, v. Rynn Carter COX, Defendant.
James Ippoliti, Celebration Law, PA, Celebration, FL, Mark F. Warzecha, Widerman Malek, PL, Melbourne, FL, for Plaintiff. Euyelit Adriana Kostencki, Matthew S. Nelles, Nelles Kostencki PLLC, Fort Lauderdale, FL, for Defendant.
James Ippoliti, Celebration Law, PA, Celebration, FL, Mark F. Warzecha, Widerman Malek, PL, Melbourne, FL, for Plaintiff.
Euyelit Adriana Kostencki, Matthew S. Nelles, Nelles Kostencki PLLC, Fort Lauderdale, FL, for Defendant.
ORDER
ROY B. DALTON JR., United States District Judge
Before the Court is Plaintiff Malicious Women Candle Company, LLC's motion for a preliminary injunction. (Docs. 2, 3 (collectively, "Motion ").) Defendant Rynn Carter Cox responded (Doc. 20) and Plaintiff replied (Doc. 36). The Court then held a hearing on the Motion. (Doc. 39.) On review, the Motion is denied for failure to show irreparable injury.
I. BACKGROUND
Plaintiff is a soy-based candle company. (Doc. 1, ¶ 7.) But these candles don't come in your typical "ocean breeze" or "pine forest" varieties—instead, customers can buy sarcastic candles with names like "Adulting, Infused With Insufficient Funds" or "I'm Going to the Gym, Infused With Shopping in Yoga Pants With a Latte ... and NO Kids!" (See id. ; see also Doc. 1-9.) Plaintiff either owns or is licensed to use two registered trademarks, for its name and logo. (Doc. 1, ¶¶ 7–10; see also Docs. 1-1, 1-3, 1-4.) Plaintiff also asserts common law trademarks in the distinct candle names. (Doc. 1, ¶¶ 13, 27.)
In October 2018, Plaintiff noticed Defendant's Etsy profile—which was selling under the name "Malicious Mermaid." (Doc. 37, ¶ 8; Doc. 1-8.) The candles looked just like Plaintiff's. (Doc. 37, ¶ 8; Doc. 1-8; cf. Doc. 1-9.) So Plaintiff filed a complaint with Etsy and hired a lawyer to send Defendant a cease and desist letter. (Doc. 37, ¶ 10; Doc. 1-12.) A couple months later, Plaintiff began receiving emails from confused customers who had bought Defendant's candles believing them to be sold by Plaintiff. (Doc. 16, ¶¶ 8, 38; Docs. 16-6, 16-36.) Plaintiff hired a new lawyer and in January 2019 sent a second cease and desist letter to the email on Defendant's Etsy profile, Rccox163@gmail.com. (See Doc. 1-12.) There was no response. (Doc. 37, ¶¶ 14, 15.)
Days, weeks, months, a year passed and Defendant, through Malicious Mermaid, continued to sell the candles. (See Doc. 37, ¶¶ 14–18.) Plaintiff claims it could not identify the true owner of the Malicious Mermaid despite its best efforts. (Id. ¶¶ 11–13.) Finally, in August 2020 Plaintiff hired her current counsel, the law firm Widerman Malek, to locate Defendant and file a claim. (Id. ¶ 17.) Less than three months later, Widerman Malek was able to identify the owner of Malicious Mermaid (Defendant), locate her in this judicial district, draft a 156-page complaint for trademark infringement, draft a 30-page motion for a preliminary injunction, and sue and serve Defendant with the Complaint and Motion. (See Docs. 1 to 3, 17.)
II. LEGAL STANDARDS
A district court may issue a preliminary injunction when the movant shows: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A. , 320 F.3d 1205, 1210 (11th Cir. 2003). Preliminary injunctions are "drastic" and "extraordinary" remedies, not to be issued unless the movant "clearly established" the burden of persuasion on each element. Id. They are the exception, not the rule. Id.
III. ANALYSIS
"A preliminary injunction requires showing imminent irreparable harm See Wreal, LLC v. Amazon.com, Inc. , 840 F.3d 1244, 1248 (11th Cir. 2016) (cleaned up); see also Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000) (irreparable harm is the "sine qua non of injunctive relief" (cleaned up)). Delay in seeking an injunction weighs strongly against that finding of harm. Wreal , 840 F.3d at 1248. Here, Plaintiff waited over two years from first learning of Defendant's allegedly infringing candles to file the Motion. (Doc. 2; cf. Doc. 37, ¶ 8.) Plaintiff argues such a delay can be excused because she could not identify the true owner of Malicious Mermaid (Doc. 36, pp. 8–10; see also Doc. 37, ¶¶ 9–17)—but the evidence does not support such an assertion. For example, as early as December 2018 Plaintiff knew the email address for Malicious Mermaid was Rccox163@gmail.com—and that email address contains the name of Defendant ("Rynn Carter Cox"). And Plaintiff could have hired a private investigator to determine where Malicious Mermaid's products originated. Plaintiff could have contacted Etsy, Google, or the other social media sites Malicious Mermaid was on to see if they would provide contact information—and if they wouldn't do so voluntarily, Plaintiff could have sued and sought subpoenas. The fact is, despite Plaintiff's averred difficulties, its current law firm apparently identified Defendant's name and address in less than three months—and Plaintiff has no explanation why she waited a year and a half from sending the cease and desist letter to hiring current counsel. (See Doc. 37, ¶¶ 14, 17.)
Similar or shorter delays have been found to bar a preliminary injunction. See, e.g. , Tech Traders, LLC v. Insuladd Env't, Ltd. , No. 6:18-cv-754-Orl-40GJK, 2018 WL 5830568, at *3 (M.D. Fla. Nov. 7, 2018). Plaintiff tries to distinguish these cases by arguing the focus should be on the delay between filing the Complaint and moving for an injunction—but this argument is unconvincing. See Menudo Int'l, LLC. v. In Miami Prod., LLC , No. 17-21559-Civ-TORRES, 2017 WL 4919222, at *5 (S.D. Fla. Oct. 31, 2017). It "cannot be" that courts look only at the time from filing the complaint as it would allow a party to sue a known infringer at their leisure, a concept irreconcilable with the urgency that must underly a preliminary injunction. See id. ; see also Tech Traders, LLC , 2018 WL 5830568, at *3.
"[T]he very idea of a preliminary injunction is premised on the need for speedy and urgent action to protect a plaintiff's rights before a case can be resolved on its merits." Wreal, LLC , 840 F.3d at 1248. Plaintiff's two-year delay belies this premise. See Tech Traders, LLC , 2018 WL 5830568, at *3. The Motion is denied.
The Motion fails because Plaintiff cannot show irreparable injury. But the Court cautions Defendant this is not necessarily a victory. While not reaching the merits, the Court notes the evidence of unfair competition seems strong, perhaps even overwhelming. (See, e.g. , Doc. 1-9.) Should Plaintiff ultimately prevail, Defendant will be liable for damages up to the entry of a final judgment—including the period that would have been covered by a preliminary injunction should one have issued. See 15 U.S.C. § 1117. And damages could include not only lost profits but loss from further damage to Plaintiff's reputation. See Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 137, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). So while the Motion is denied, this does not mean Defendant is absolved of consequences in the interim. It just means Defendant may feel damages later rather than sooner.
IV. CONCLUSION
It is ORDERED AND ADJUDGED the Plaintiff's Motion for Preliminary Injunction (Doc. 2) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on December 14, 2020.
See also Seiko Kabushiki Kaisha v. Swiss Watch Int'l, Inc. , 188 F. Supp. 2d 1350, 1356 (S.D. Fla. 2002) ; Menudo Int'l, LLC. v. In Miami Prod., LLC , No. 17-21559-Civ-TORRES, 2017 WL 4919222, at *4 (S.D. Fla. Oct. 31, 2017).