Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does

REPLY

N.D. Cal.February 29, 2012

RON PAUL 2012 PRESIDENTIAL CAMPAIGN COMMITTEE, INC., a Delaware corporation, Plaintiff, v. JOHN DOES 1 through 10, Defendants. RPP/512280.1 1 JERROLD ABELES (SBN 138464) Abelesier__Ky(p)arentfox.com 2 DAVID BAYLES (SBN 208112) 13,-Ayles.DavidkOrenifox.com 3 ARENT FOX LLP 555 West Fifth Street, 48th Floor 4 Los Angeles, CA 90013-1065 Telephone: 213.629.7400 5 Facsimile: 213.629.7401 6 MICHAEL A. GROW (pro hac vice application pending) Grow.MichaelOarentfox.com 7 JAMES R. DAVIS II (pro hac vice application pending) avisJim(a)arentfox.com ARENT FOX LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5339 Telephone: 202.857.6000 Facsimile: 202.857.6395 Attorneys for Plaintiff RON PAUL 2012 PRESIDENTIAL CAMPAIGN COMMITTEE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. CV-12-0240-MEJ PLAINTIFF'S REPLY BRIEF SUPPORTING EX PARTE APPLICATION FOR EXPEDITED DISCOVERY 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT FOX LLP ATTORNEYS AT LAW Los A NGELFS REPLY SUPPORTING EX PARTE APP FOR EXPEDITED DISCOVERY CA SF NT() CV-17_117411-MP I Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page1 of 13 TABLE OF CONTENTS Page I. INTRODUCTION 1 II. ARGUMENT 1 A. Defendants Have Infringed Plaintiffs Mark by Using It in Commerce 1 B. Application of Balancing Standards is Not Required 5 1. Dendrite Analysis is Not Required 5 2. Plaintiff Has Complied with Any Applicable Standard..... 7 C. The Court Should Reject Amici's Request for Additional Notice 8 D. Plaintiff Has Properly Pled the Elements of its Defamation Claim 8 E. Plaintiff Never Suggested that the Court Should Not Review the Video 9 F. The Court Should Reject Amici's Equity Argument 9 III. CONCLUSION 10 REPLY SUPPORTING EX PARTE - i - APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT FOX LLP ATTORNEYS AT LAW LOS ANGELES Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page2 of 13 TABLE OF AUTHORITIES 2 3 Page(s) FEDERAL CASES Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 672 (9 th Cir. 2005) 1, 2, 3 Central Hudson Gas & Elec. Corp. v. Public Service Comm 'n of New York, 447 U.S. 557 (1980) Columbia Ins. Co. v. Seescandy.com 185 F.R.D. 573 (N.D. Cal. 1999) 6 Highfields Capital Management L.P. v. Doe, 385 F.Supp.2d 969 (N.D. Cal. 2005) 5, 6, 7, 8 In re Anonymous Online Speakers, 661 F.3d 1168 (9 th Cir. 2011) 4, 5 Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 (9 th Cir. 2006) 4 United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86 (2nd Cir. 1997) 2, 3 White v. City of San Diego, 605 F.2d 455 (9 th Cir. 1979) 5 STATE CASES Blatty v. New York Times Co., 42 Ca1.3d 1033 (1986) 8 Dendrite International v. Doe, 775 A.2d 756 (N.J. App. 2001) passim In re Indiana Newspapers Inc., N.E.2d ----, 2012 WL 540796 (Ind.App., 2012) 6, 7 FEDERAL STATUTES 15 U.S.C. § 1051 2, 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LLP ATTORNEYS AT LAW LOS A NOOSES REPLY SUPPORTING EX PARTE - ii - APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page3 of 13 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION In their brief, Amidi argue that Plaintiff Ron Paul 2012 Presidential Campaign Committee Inc. ("Plaintiff') should be deprived of its right to protect its intellectual property and reputation against infringing and defamatory activity of certain as yet unknown defendants ("Does"). Amici ignore Plaintiffs evidence that the Does made unauthorized use of Plaintiff's mark in a commercial video that has created actual consumer confusion and public backlash against Plaintiff, and ask the Court to turn a blind eye to this unlawful conduct. Indeed, Amici argue that Plaintiff should be precluded from even conducting basic, necessary discovery to identify the defendants in this case. As with their prior briefs, Amici cite case law with no application to the facts at issue in this case, and ask the Court to adopt and use inappropriate legal standards when considering such issues. II. ARGUMENT A. Defendants Have Infringed Plaintiff's Mark by Using It in Commerce. Amici's primary argument is that the Does' creation, posting and distribution of the video do not constitute a commercial use that violates the Lanham Act under the standards allegedly articulated in Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 672 (9 th Cir. 2005). Amici Brief pp. 2-4. While Amici's expertise may be useful in First Amendment issues, their brief is of little value in resolving the trademark and trade name issues before the Court. This is evident in the manner in which Amici improperly characterize the Court's holding in Bosley. They are improperly using that case to create a new, exceedingly narrow infringement standard that would upend decades of established trademark precedent. No court has ever accepted arguments of the type asserted by Amici in a trademark case. If Amici's reasoning is adopted, it will be very difficult — and in some cases impossible — for trademark owners to recover for infringement 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LLP ATTORNEYS AT LAW Los A NGEI.FS REPLY SUPPORTING EX PARTE - 1 - APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page4 of 13 by an anonymous defendant that uses a counterfeit mark on identical goods or services, even where, as here, the infringement causes actual confusion. In Bosley, the Ninth Circuit held "that the 'use in connection with the sale of goods and services' requirement of the Lanham Act does not require any actual sale of goods and services." Bosley, 403 F.3d at 679 (emphasis in original) (citing United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86, 90 (2" Cir. 1997)). The Court can therefore consider whether the defendant offered "competing services to the public." Id. By distributing a video containing Plaintiffs mark without identifying the actual author, the Does have used a false designation of origin and have made misleading statements in commerce in connection with services identical to those offered by Plaintiff. In contrast, the defendant in Bosley was not anonymous, and in fact openly operated a Web site that criticized the plaintiff — who provides hair restoration services — in a manner that the court determined could not mislead consumers into believing the Web site was operated by the plaintiff. Id., 403 F.3d at 679-80. The facts in Bosley are significantly different from those presently before the Court. Plaintiff has established common law rights in the trade name, trademark and service mark Ron Paul through actual use of that name in connection with information dissemination and fund raising services. "The owner of a trademark used in commerce may request registration of its trademark on the principal register" for a wide variety of goods and services. 15 U.S.C. § 1051 (emphasis added). Plaintiff has demonstrated that the United States Patent and Trademark Office ("PTO") has previously issued registrations for marks that are comprised of, or include, politicians' names for, among other things, providing information about political elections and political fund raising services. Campaign's Memorandum in Support of Ex Parte Application ("Campaign's Memo"), pp. 8 and 15, Grow Decl. II 16, Ex. G. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LLP ATTORNEYS AT LAW Los ANGELES REPLY SUPPORTING EX PARTE -2 APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page5 of 13 This "use in commerce" may — and indeed often does — occur through creating and distributing online content and videos, commercials and other electronic advertisements that support and raise funds for political candidates. Politicians and their supporters are increasingly using Internet video sites like YouTube and social network providers like Twitter to raise funds, disseminate information, campaign and promote political causes and candidacies. As made clear in the moving papers, and not challenged by Amici in their response, the PTO recognizes that the use of a mark like Ron Paul in connection with such activities constitutes a "use in commerce" within the meaning of 15 U.S.C. § 1051. The value of allowing and protecting such registration has long been recognized. "A political organization that adopts a platform and endorses candidates under a trade name performs the valuable service of communicating to voters that it has determined that the election of those candidates would be beneficial to the objectives of the organization." United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86, 90 (2" Cir. 1997). "If different organizations were permitted to employ the same trade name in endorsing candidates, voters would be unable to derive any significance from an endorsement, as they would not know" the source of the endorsement and "Nile resulting confusion would be catastrophic." Id. The Does in this case have used Plaintiffs mark Ron Paul in a video distributed through Twitter and YouTube accounts bearing the deceptive name NHLiberty4Paul. In so doing, the Does have offered services that are identical in nature to those offered by Plaintiff, and their services constitute a "use in commerce" within the meaning of the federal trademark statute and a proper reading of Bosley. In support of their claim that the Does' use of Plaintiffs mark to create and distribute the offensive video on commercial Internet sites does not constitute a "commercial use" sufficient to trigger the Lanham Act, Amici again rely on cases REPLY SUPPORTING EX PARTE - 3 - APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LLP ATTORNETs AT LAW LOT ANGELES RPP/512280.11 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page6 of 13 with facts, activities and laws that are entirely different from the current dispute. Amici Brief, pp 2-3. As the Ninth Circuit has noted, "decisions governing discovery are highly fact-intensive." In re Anonymous Online Speakers, 661 F.3d 1168, 1176 (9 th Cir. 2011). For reasons set forth in Plaintiffs moving papers, the facts of the present case are readily distinguishable from the authorities cited by Amid. There is no legitimate question that the Does made commercial use of Plaintiffs mark, infringed that mark, and defamed Plaintiff. Amidi also attempt to create a new legal standard for determining trademark infringement and likelihood of confusion with regard to evidence of actual confusion. Specifically, while Amici concede that courts recognize "evidence of actual confusion from even a few customers as serious evidence of likely confusion," Amici challenge Plaintiffs evidence of actual confusion as merely "hurried mistakes by voters." Amici Brief, p. 6. Amici do not attempt to explain why Plaintiffs evidence shows "hurried mistakes," nor do Amici cite any case law for the baseless assertion that actual consumer confusion soon after an infringement is any less persuasive evidence than confusion at a later time. In fact, the Lanham Act does not differentiate between confusion on such arbitrary grounds, or impose liability only for actual confusion based on a more considered viewing of the misleading information. The Amici's reliance on Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 (9 th Cir. 2006), is also misplaced. The quotations provided by Amici refer to interpretation of the Federal Trademark Dilution Act ("FTDA"), which is not a claim in this dispute. The case also considered whether the use of links from one Web site to another, which contained disparaging comments about the plaintiff, is commercial under the FTDA, issues unrelated to this case. In any event, and as set forth in more detail above and in Plaintiffs prior brief, the Does' actions were a commercial infringement of Plaintiffs trademark and a violation of the Lanham Act. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT FOX LLP ATTORNEYS AT LAW Los A NOEL ES REPLY SUPPORTING EX PARTE -4 APP FOR EXPEDITED DISCOVERY CASE NO. CV42-0240-MEJ RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page7 of 13 B. Application of Balancing Standards is Not Required. Amidi also erroneously contend that the Court must apply the Dendrite analysis before determining whether to grant Plaintiffs motion for expedited discovery. Amidi Brief, pp. 4-7. As detailed in Plaintiffs moving papers, the Court need not apply Dendrite or any similar analysis adopted by this Court or the Ninth Circuit because the speech at issue in this present case is not protected under the First Amendment. Campaign's Memo, p. 13. Amici present nothing in their opposition to change this conclusion. 1. Dendrite Analysis is Not Required. Contrary to what Amici imply, neither this Court nor the Ninth Circuit has fully applied — let alone mandated use of — the Dendrite test when considering a plaintiffs motion for expedited discovery against an unknown defendant. Just last year the Ninth Circuit provided an extensive survey of the "broad array of standards" applied in such cases by courts in California and around the country. In re Anonymous Online Speakers, 661 F.3d 1168, 1175-76 (9 1h Cir. 2011). 1 In Anonymous, the Ninth Circuit declined to adopt a particular test and noted that district courts have "wide latitude in controlling discovery" and "decisions governing discovery are highly fact-intensive." 661 F.3d at 1176 (quoting White v. City of San Diego, 605 F.2d 455, 461 (9 th Cir. 1979)). To give the false impression that this Court has adopted a standard from Dendrite International v. Doe, 775 A.2d 756 (N.J. App. 2001), Amici closely associate — and even merge — that New Jersey state court decision with this Court's ruling in Highfields Capital to create the fictional "DendritelHighfields Capital standard." Amici Brief, pp. 2, 7 ("The Court should reaffirm that the DendritelHighfields Capital standard is the applicable rule in this district."). 1 It is noteworthy in the present case that, in its analysis, the Ninth Circuit made only a parenthetical reference to Dendrite — without even using a citation — and only as it applied to a case from the District Court for the District of Columbia. 661 F.3d at 1177. REPLY SUPPORTING EX PARTE - 5 - APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT FOX LLP ATTORNEYS AT LAW Los ANGELES RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page8 of 13 Plaintiff is not aware of any case law that recognizes the existence of a "Dendrite I Highfields Capital standard." In fact, in Highfields Capital Management L.P. v. Doe, 385 F.Supp.2d 969 (N.D. Cal. 2005), this Court adopted a two-step test to balance the competing interests of the parties, in contrast to the four-pronged Dendrite test advocated by Amid. Despite the differences in the various standards that could be applied for expedited discovery, all of the cases cited by Amici seek to strike a balance between a defendant's First Amendment right to engage in lawful and protected speech and a plaintiff's right to defend itself against improper and illegal activity. It therefore follows that if, as is the case here, the disputed speech does not fall under the protection of the First Amendment, the Court need not apply any balancing test before granting a motion for expedited discovery. As the Supreme Court has explained, for commercial speech to come within the provisions of the First Amendment, "it at least must concern lawful activity and not be misleading." Central Hudson Gas & Elec. Corp. v. Public Service Comm 'n of New York, 447 U.S. 557, 565 (1980); see also, Columbia Ins. Co. v. Seescandy.com (185 F.R.D. 573, 578 (N.D. Cal. 1999)) ("People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law.") (Emphasis added.). There can be no legitimate argument as to whether the Does' video is misleading or in violation of the law; the proof is in the evidence produced by Plaintiff showing actual consumer confusion. Campaign's Memo, pp. 15-16, Grow Dec1.11 17, Ex. H. Amici mislead the Court by asserting that the Dentrite test has been recently and widely adopted. For example, Amici allege that "this week, the Indiana Court of Appeals has joined the majority approach embracing Dendrite with its requirement of evidence and express balancing." Amici Brief, p.2 n.1. This is an overstatement of the Indiana court's holding in that case, in which amicus Public Citizen, Inc. participated on behalf of the defendant, and thus should know better. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LLP ATTORNEYS AT LAW Los A NG EL ES REPLY SUPPORTING EX PARTE - 6 - APP FOR EXPEDITED DISCOVERY CASE NO. CV42-0240-MEJ RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page9 of 13 In actuality, the Indiana court held that "a pure Dendrite test is not workable," and instead adopted a modified version. In re Indiana Newspapers Inc., --- N.E.2d -- 2012 WL 540796 *15 (Ind.App., 2012). Because a plaintiff must know the identity of the defendant in order to allege the elements of certain causes of action — including defamation claims that require allegations of actual malice — the Indiana court adopted a lower standard and required only that a plaintiff produce prima facie evidence of the elements of such a claim. Id. And, as with all the other First Amendment cases cited by Amici, the facts of the current dispute are entirely different from those in In re Indiana Newspapers, where the plaintiff sought to compel a newspaper to disclose the identity of an anonymous commentator who did not infringe any trademarks, cause confusion or attempt to impersonate the plaintiff. 2. Plaintiff Has Complied with Any Applicable Standard. Even if the Court were to find that the video is entitled to some level of protection under the First Amendment and decided to apply Highfields Capital, Dendrite or any similar analysis, it is clear that Plaintiff has fully complied with any such test under the "motion to dismiss" standard, or any other standard. Campaign's Memo, pp. 13-20. As noted, the Highfields Capital standard consists of two prongs. The first is a requirement that the plaintiff adduce "competent evidence" in support of each element of each cause of action, i.e., competent evidence that the defendant engaged in wrongful activity. Highfields Capital, 385 F.Supp.2d at 975-76. If, as is the case here, the plaintiff complies with the first prong, the Court must then assess and compare the magnitude of the harms that would be caused if the defendant's identity is revealed, primarily whether identification will harm the defendant's First Amendment and privacy rights. Id. at 976. Highfields Capital does not require evidence of the plaintiff's attempt to locate the unknown defendant, as is required under Dendrite. However, Plaintiff has nonetheless provided that evidence. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LLP ATTORNEYS AT LAW LOS ANGELES REPLY SUPPORTING EX PARTE -7 APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page10 of 13 As Plaintiff already has demonstrated, Does' video is not protectable First Amendment speech and, as such, the Court need not apply the Highfields Capital analysis, or any similar test, in this case. And certainly the Court is not obligated to apply the four-factor Dendrite test. Plaintiff has nevertheless demonstrated that it has complied with either such test, so the discovery should be permitted. C. The Court Should Reject Amici's Request for Additional Notice. As they attempt to do with the trademark infringement analysis, Amici seek to create a new, unnecessary and improper standard under the Dendrite test. As noted, this Court is not obligated to apply Dendrite or its notice provisions; nonetheless, Amici "suggest that the Court consider directing Google and Twitter to provide email notice." Amici Brief, p. 5. Amici cite no cases or statutes that require or even imply that such an additional burden is required or appropriate. Amici concede that Plaintiff provided notice to the Does through both Twitter and YouTube and that Plaintiff's notice was "the best it can" provide. Amici Brief, p. 5. There simply is no legal basis for Amici to request an additional obligation, which serves no purpose other than to create a new hurdle that Amici can argue should be required in future cases into which it intervenes. D. Plaintiff Has Properly Pled the Elements of its Defamation Claim. Amici claim that Plaintiff fails to allege that the defamatory communication was made with actual malice and is "of and concerning" Plaintiff. Amici Brief, p. 6. Both allegations are false. Contrary to Amici's assertions, Plaintiff alleges the subject communications were made "with malice." Complaint, It 41. Further, Plaintiff has met the "of and concerning" requirement. Plaintiff alleges that the publication refers to the Paul Committee, stating, "The Video falsely portrays Plaintiff as unscrupulous, xenophobic and underhanded, and seeks to portray Plaintiff as willing to engage in any unlawful means to support the candidate Ron Paul." Id., 1138. See Blatty v. New York Times Co., 42 Ca1.3d 1033, 1042 (1986) ("In defamation actions the First 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LLP ATTORNEYS AT LAW Los ANG, REPLY SUPPORTING EX PARTE -8 APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page11 of 13 Amendment requires that the statement on which the claim is based must specifically refer to, or be 'of and concerning,' the plaintiff in some way."). Impersonating Plaintiff with the intent that the public take action or form opinions based on the false belief that Plaintiff has taken a particular position is necessarily "of and concerning" Plaintiff. There is no merit to Amici's assertion that Plaintiff has not adequately stated a defamation claim. E. Plaintiff Never Suggested that the Court Should Not Review the Video. Amici allege that Plaintiff "never respond[ed]" to their suggestion that the Court should consider the offensive video. Amici Brief, p.6. In fact, Plaintiff included a link to the video — Grow Decl., p. 5 — and quoted extensively from the video in its filings and supporting Benton declaration. Plaintiff clearly has pointed the Court to the video, and never objected to the Court considering its contents. F. The Court Should Reject Amici's Equity Argument. Amici's allegations regarding Plaintiff's intent and candor are particularly offensive. Amici assert Plaintiff showed a "lack of candor" by failing to cite Dendrite as "controlling law" and, although Amici do not cite relevant precedent, they claim the Court should consider this factor when balancing the equities under Dendrite. Amici Brief, p. 6. Dendrite is a New Jersey state appellate court decision, which has no controlling effect in California. The fact that some judges in the Northern District of California cited the case does not mean that Dendrite necessarily applies in all cases in the district, or that failure to reference the case is an indication of deception. Indeed, in her initial order regarding Plaintiff's prior ex parte application, Mag. Judge James did not cite Dendrite or the Northern District cases that cited Dendrite. In addition, given the detailed legal arguments asserted by both sides, there is a good faith dispute whether Dendrite has any applicability in the present case. 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LL,P ATTORNEYS AT LAW LOS ANGELES REPLY SUPPORTING EX PARTE 9 APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page12 of 13 Even Amici admit that the Ninth Circuit "does not determine the precise standard to be applied in future cases," so Amid i focus on what they admit is only dictum. Amici's Memo. Addressing the Proper Standard for Early Discovery to Identify Anonymous Speakers (Docket No. 9-1), pp. 8-9 (citing Anonymous Online Speakers). It is patently offensive for Amici to assert that Plaintiff acted in bad faith by electing not to cite to non-applicable authority from the New Jersey state appellate court, and to then suggest that Plaintiffs decision is a concession that the ex parte application is not equitable, when Amid i admit that no actual standard exists in this District. III. CONCLUSION Plaintiff has presented ample reasons why its ex parte application should be granted. It has alleged the elements of multiple torts, and has provided evidence of actual confusion created by the Does' wrongful conduct. Amici respond not by addressing the evidence, but by incorrectly asserting that the Northern District and Ninth Circuit have adopted specific standards that the Court should apply. Those standards do not apply in this type of case, but even if they did, Plaintiff has shown that it has satisfied the hurdles set forth in those standards. For the reasons presented, the Court should grant Plaintiffs application and allow it to serve simple, basic discovery aimed at nothing more than determining the identity of the defendants. Dated: February 29, 2012 Respectfully submitted, ARENT FOX LLP By: /s/ Jerrold Abeles JERROLD ABELES DAVID G. BAYLES Attorneys for Plaintiff RON PAUL 2012 PRESIDENTIAL CAMPAIGN COMMITTEE, INC. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LLP ATTORNEYS AT LAW LOS ANGELES REPLY SUPPORTING EX PARTE - 10 - APP FOR EXPEDITED DISCOVERY CASE NO. CV-12-0240-MEJ RPP/512280.1 Case3:12-cv-00240-MEJ Document16 Filed02/29/12 Page13 of 13