Total90, LLC v. Nike, Inc.

Summary

The United States District Court for the Eastern District of Louisiana denied Total90, LLC’s motion for a temporary restraining order against Nike, Inc. in a trademark infringement dispute involving the marks “TOTAL90” and “Total 90.” The court held that Total90 had not shown a substantial likelihood of success on the merits, including failure to establish senior trademark use or a likelihood of confusion. The court also held that Total90’s eleven-month delay in seeking emergency relief rebutted the presumption of irreparable harm.

Holdings

1. The procedural requirements for obtaining a temporary restraining order were satisfied because Nike appeared and filed a response, so the motion was no longer ex parte and the ex parte requirements of Federal Rule of Civil Procedure 65 did not apply.
2. Total90 failed to demonstrate a substantial likelihood of success because it did not establish that it was the senior user and owner of the mark, did not show that Nike had abandoned its mark, and did not demonstrate a likelihood of confusion under the Fifth Circuit's digits-of-confusion analysis.
3. Total90 failed to demonstrate a substantial threat of immediate and irreparable harm because its nearly eleven-month delay while engaging in settlement negotiations rebutted the presumption of irreparable harm under the Trademark Modernization Act.

Questions Presented

1. Whether Total90 satisfied the procedural requirements for consideration of its initially ex parte motion for a temporary restraining order.
2. Whether Total90 demonstrated a substantial likelihood of success on its Lanham Act trademark infringement claim by showing ownership of a legally protectable mark and a likelihood of confusion.
3. Whether Total90 demonstrated a substantial threat of immediate and irreparable harm, including whether its delay rebutted the Trademark Modernization Act's presumption of irreparable harm.

Disposition

denied