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1-800 Radiator Franchise, Inc v. Blincoe Diversified Alternatives

May 15, 2011

1-800 RADIATOR FRANCHISE, INC., PLAINTIFF,
v.
BLINCOE DIVERSIFIED ALTERNATIVES, LLC, D/B/A 1-800 RADIATOR OF POCATELLO, IDAHO; DAMON BLINCOE; AND KATHI BLINCOE, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

Before the Court are Plaintiff's Motion for Preliminary Injunction (Dkt. 2), Motion for Default Against Defendant Blincoe Diversified Alternatives, LLC (Dkt. 14), and Motion to Strike Answer of Defendant Blincoe Diversified Alternatives, LLC (Dkt. 15). The Court has determined that oral argument would not significantly assist in the decisional process, and will thus consider the motions without a hearing. Being familiar with the record and pleadings before it, the Court will grant Plaintiff's motions, as more fully discussed below.

BACKGROUND

Plaintiff 1-800 Radiator Franchise, Inc. (RFI) brings this action against Defendants Blincoe Diversified Alternatives, LLC, Damon Blincoe, and Kathi Blincoe, for trademark infringement and breach of contract. Plaintiff filed its Complaint (Dkt. 1), Amended Complaint (Dkt. 3), and Motion for Preliminary Injunction (Dkt. 2), to enjoin Defendants from trademark infringement and violation of its covenants not to compete. Damon and Kathi Blincoe filed an Answer (Dkt. 11) on behalf of themselves, and purporting to represent, pro se, Blincoe Diversified Alternatives, LLC. Plaintiffs move to strike Defendants' answer, with respect to Blincoe Diversified Alternatives, and for entry of default as to Blincoe Diversified Alternatives, for lack of proper representation.

ANALYSIS

1. Motion to Default Corporate Entity

The Local Federal Rules for the District of Idaho require that appearance in court of any entity other than an individual "shall be made only by an attorney of the bar of this Court or an attorney permitted to practice under these rules." Dist. Idaho Loc. Civ. R. 83.4(d). As noted by Plaintiff in its motion for default, Defendants were advised in parallel arbitration proceedings, concerning claims not subject to federal court jurisdiction, that the individual Blincoes could not appear on behalf of the Defendant corporate entity. See Order, Dkt. 14-5. Despite such notice, Defendants have not retained legal representation for the corporate entity in this matter, in violation of local federal rules and cases finding that such lack of representation amounts to the unauthorized practice of law. See Weston v. Gritman Memorial Hosp., 99 Idaho 717 (Idaho 1978).

Plaintiffs further note that neither Damon nor Kathi Blincoe is licensed to practice law. Pl. Mot., Dkt. 14-1 at 6. Defendants have not challenged this assertion. Accordingly, the Court will grant Plaintiff's motion to default Defendant Blincoe Diversified Alternatives, LLC.

2. Motion to Strike Answer As to Corporate Entity

In keeping with the finding that Blincoe Diversified Alternatives, LLC lacks proper legal representation, the Court finds that the Answer (Dkt. 11) filed by the individual Blincoes with respect to Blincoe Diversified Alternatives, LLC, is improper. The Court will therefore grant Plaintiff's motion to strike the answer with respect to Blincoe Diversified Alternatives, LLC.

3. Motion for Preliminary Injunction

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365 (2008). A "possibility" of irreparable harm is insufficient; irreparable injury must be "likely" in the absence of an injunction. Id. A preliminary injunction is "an extraordinary remedy never awarded as of right." Id. at 376. In each case, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Id.

A. Likelihood of Success on the Merits

The Lanham Act was enacted "[t]o protect trademarks . . . to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and goodwill by preventing their diversion from those who have created them to those who have not." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 782 n. 15 (quoting S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946)). Under the Lanham Act, use in commerce of a reproduction of a registered mark is prohibited as trademark infringement. 15 U.S.C. § 1114(1). Also prohibited are false designations as to the source or origin of services and goods. 15 U.S.C. § 1125(a). Where a trademark holder can show that "similarity of the marks is likely to confuse customers about the source of the ...


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