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Kuper Industries, LLC v. Reid

United States District Court, D. Nebraska

January 30, 2015


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[Copyrighted Material Omitted]

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For Kuper Industries, LLC, James W. Kuper, d/b/a The Pancake Man, Plaintiffs: Jarrod D. Reece, Nora M. Kane, STINSON, LEONARD LAW FIRM - NEBRASKA, Omaha, NE.

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John M. Gerrard, United States District Judge.

This matter is before the Court on the Motion for a Temporary Restraining Order filed by plaintiffs Kuper Industries, LLC and James W. Kuper, d/b/a The Pancake Man. Filing 2. For the reasons discussed below, the Court will grant plaintiffs' motion.

I. Factual Background

Since 1985, plaintiff James W. Kuper has done business in Nebraska, Iowa, and other Midwestern states under the name " The Pancake Man," serving pancakes at school fundraisers, clubs, and for various businesses. Filing 4-1 at ¶ 2. Kuper also operates his business through plaintiff Kuper Industries, LLC. Filing 4-1 at ¶ 1. Kuper avers that in his nearly 30 years of business, he has served " millions" of pancakes on thousands of occasions, and that members of the public regularly recognize him as The Pancake Man. Filing 4-1 at ¶ ¶ 5-7. Kuper has also received national recognition, with articles appearing in the Wall Street Journal and an appearance on a Food Network television show, as well as in local publications such as the Omaha World-Herald. See, e.g., filing 4-1 at ¶ ¶ 8-16; filings 4-2, 4-3, 4-4, 4-5, and 4-6.

In September 2009, Kuper was issued a service mark for The Pancake Man. Filing 1 at 8; filing 4-1 at ¶ 3. The mark is registered on the United States Patent and Trademark Office's Principal Register and consists of standard characters, without claim to any particular font, style, size, or color. Filing 1 at 8.

Defendant Daniel Reid operates an Omaha pizza business known as The Pizza Pie Guys. See filing 4-1 at ¶ ¶ 17-18; filing 4-7. Around 2011 or 2012, Reid became interested in expanding into the pancake business. At that time, Reid contacted Kuper to see if he would be willing to sell his business. Filing 4-1 at ¶ 17. Later, in the summer of 2013, Reid again emailed Kuper to see if he was interested in selling his business. Filing 4-7. Kuper avers that when he eventually told Reid he was not interested in selling his business, Reid " became somewhat upset" with him. Filing 4-1 at ¶ 19.

Since then, Kuper has learned that Reid, and Reid's business, defendant All The Marbles, LLC, have begun operating a competing pancake performance enterprise known as " The Pancake Guys." The businesses are apparently competing for similar customers. Kuper avers that in February 2014, he learned that " The Pancake Guys" were soliciting Kuper's customers to breach their contracts with him by offering to pay their cancellation fees. Filing 1 at ¶ 4; filing 4-1 at ¶ ¶ 18-34; filing 4-13.[1] Kuper's attorney contacted Reid and urged him to stop, claiming that

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this amounted to tortious interference with Kuper's business relationships. Reid apparently agreed to remove the posting. Filing 4-1 at ¶ 22; filing 4-13.

In December 2014, Kuper learned that an elementary school in Papillion, Nebraska, was advertising on its website that the Pancake Man would be making an appearance at the school on December 4. This was surprising, because although Kuper had worked there in the past, he was not scheduled to make a new appearance. Kuper contacted the school and learned that, in fact, the Pancake Guys were scheduled to perform. On December 3, the school agreed to correct its website. Filing 4-1 at ¶ ¶ 27-31.

Since then, Kuper has also learned that Walt Disney Elementary School, in Omaha, Nebraska, has advertised on its website that The Pancake Man would be appearing at a school event set for January 30, 2015. Once again, however, it was the Pancake Guys who were actually scheduled to appear. Kuper avers that school only recently corrected its website. Filing 4-1 at ¶ ¶ 32-34. The present suit followed.

II. Analysis

Plaintiffs claim that defendants' conduct constitutes (1) trademark infringement and (2) unfair competition in violation of the Lanham Act, 15 U.S.C. § § 1114(1) and 1125(a); (3) trademark dilution by blurring in violation of the Lanham Act, 15 U.S.C. § 1125(c); and (4) a violation of Nebraska's Deceptive Trade Practices Act, Neb. Rev. Stat. § § 87-301 et seq. Filing 1 at 3-5.

Plaintiffs ask the Court to enter a temporary restraining order, enjoining defendants from, among other things, operating under the name " The Pancake Guys." Filing 2. The pending motion focuses on plaintiffs' claims under the Lanham Act. The Court finds that plaintiffs are entitled to temporary injunctive relief under their claims for trademark infringement and unfair competition. So, for the time being, the Court need not consider plaintiffs' other claims, as they would not entitle plaintiffs to any additional relief.[2]

Federal Rule of Civil Procedure 65(b) governs the issuance of temporary restraining orders issued with or without notice to the opposing parties:

Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant

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before the adverse party can be heard in ...

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