TRO Bid in Arts Case Results in COVID-19 Rebuke from Judge

"Without entry of the requested emergency relief, the sale of infringing products will continue unabated. Therefore, entry of an emergency ex parte order is necessary to protect plaintiff's rights, to prevent further harm to plaintiff and the consuming public, and to preserve the status quo," Hierl wrote.

District Judge Seeger was not persuaded. His order — just over two pages long — kicked off with a less-than-reverent description of the products at issue: "One example is a puzzle of an elf-like creature embracing the head of a unicorn on a beach. Another is a hand purse with a large purple heart, filled with the interlocking heads of two amorous-looking unicorns. There are phone cases featuring elves and unicorns, and a unicorn running beneath a castle lit by a full moon."

"Meanwhile," the Judge Seeger continued in what was surely a deliberately jarring contrast, "the world is in the midst of a global pandemic. The president has declared a national emergency. The governor has issued a state-wide health emergency. As things stand, the government has forced all restaurants and bars in Chicago to shut their doors, and the schools are closed, too. The government has encouraged everyone to stay home, to keep infections to a minimum and help contain the fast-developing public health emergency."

Given these circumstances, Judge Seeger scheduled the TRO hearing a few weeks out "to protect the health and safety of our community, including counsel and this court's staff. Waiting a few weeks seemed prudent."

Besides, he noted, "Plaintiff has not demonstrated that it will suffer an irreparable injury from waiting a few weeks. At worst, defendants might sell a few more counterfeit products in the meantime. But plaintiff makes no showing about the anticipated loss of sales. One wonders if the fake fantasy products are experiencing brisk sales at the moment."

Even a telephonic hearing would consume thinly-stretched court resources, Judge Seeger wrote. Moreover, he wrote in a separate minute entry, the plaintiff "proposes a bloated order that imposes extraordinary demands on third parties, including a wide array of technology companies and financial institutions. Plaintiff's proposed order would require immediate action, in a matter of days, from firms that have nothing to do with this case."

"In the meantime," the district judge continued, "the country is in the midst of a crisis from the coronavirus, and it is not a good time to put significant demands on innocent third parties. … All of them undoubtedly have (more) pressing matters on their plates right now."

What truly seemed to irritate the judge wasn't the initial TRO request — it was that Hierl didn't take no for an answer, claiming that his client "will suffer an 'irreparable injury' if this court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves," Judge Seeger wrote.

After the judge set the hearing schedule, Hierl filed a motion for reconsideration. But he didn't stop there. "Thirty minutes ago, this court learned that plaintiff filed yet another emergency motion," Judge Seeger wrote, sounding more than a little peeved. "They teed it up in front of the designated emergency judge, and thus consumed the attention of the chief judge.

"The filing calls to mind the sage words of Elihu Root: 'About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop,'" Judge Seeger wrote. "If there's ever a time when emergency motions should be limited to genuine emergencies, now's the time."

"To put it bluntly," the judge added in the minute entry, "Plaintiff's proposed order seems insensitive to others in the current environment. Simply put, trademark infringement is an important consideration, but so is the strain that the rest of country is facing, too. It is important to keep in perspective the costs and benefits of forcing everyone to drop what they're doing to stop the sale of knock-off unicorn products, in the midst of a pandemic."

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Jenna Greene is editor of ALM's The Litigation Daily and author of the "Daily Dicta" column. She is based in the San Francisco Bay Area and can be reached at [email protected].