Big Time Worldwide Concert v. Marriott Intern., CIV.02-40289.

Citation236 F.Supp.2d 791
Decision Date02 January 2003
Docket NumberNo. CIV.02-40289.,CIV.02-40289.
PartiesBIG TIME WORLDWIDE CONCERT & SPORT CLUB AT TOWN CENTER, LLC, Plaintiff, v. MARRIOTT INTERNATIONAL, INC., Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)

Lawrence R. Jordan, Joan H. Lowenstein, Peter M. Falkenstein, Jaffe, Raitt, Ann Arbor, MI, for BIG Time Worldwide Concert and Sports Club at Town Center, L.L.C., plaintiff.

K. Scott Hamilton, Dickinson Wright, Detroit, Michael A. Grow, Leo M. Loughlin, Washington, DC, for Marriott International, Incorporated, defendant.

ORDER DENYING PRELIMINARY INJUNCTION

GADOLA, District Judge.

Before the Court is Plaintiff's Motion for a Preliminary Injunction. See Fed. R.Civ.P. 65(a); E.D. Mich. LR 65.1. Plaintiff, who does business as BIG TIME WORLDWIDE, seeks to enjoin Defendant from using the federally registered mark BIG TIME TICKETS. For the reasons stated below, the Court shall deny the Motion.

I. HEARING

Although "Rule 65 [of the Federal Rules of Civil Procedure] requires a hearing before a preliminary injunction may issue," Sec. & Exch. Comm'n v. G. Weeks Securities Inc., 678 F.2d 649 (6th Cir. 1982), see also Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, Local 70, 415 U.S. 423, 433, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974), "preliminary injunctions [may be] denied without a hearing, despite a request therefor by the movant, when the written evidence shows the lack of a right to relief so clearly that receiving further evidence would be manifestly pointless." 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2949 (1995); see also Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175-76 (3d Cir.1990) ("[Rule 65(a)] does not make a hearing a prerequisite for ruling on a preliminary injunction. Obviously, a hearing would not be necessary if the movant is proceeding on a legal theory which cannot be sustained, because then there could be no showing of a likelihood of success on the merits."); Commerce Park at DFW Freeport v. Mardian Constr. Co., 729 F.2d 334, 341 (5th Cir.1984); Jack v. Baker, No. 1:01-CV-04, 2001 U.S. Dist. LEXIS 12326, at *2-3 (W.D.Mich. Aug. 6, 2001) ("there are instances in which hearing of an injunction motion is unnecessary. Examples include ... where the legal theory underlying the request is clearly untenable." (citing Bradley, 910 F.2d 1172)); Dennie v. Abramson Enters., 124 F.Supp.2d 928, 931 (D.Vi.2000) ("the court was not required to hold a hearing before denying [the preliminary injunction]."); LaRouche v. Webster, 566 F.Supp. 415, 419 (S.D.N.Y.1983) ("There is no doubt that a preliminary injunction may be denied without a hearing." (internal quotation omitted)).

"This practice is supported by Rule 78 [of the Federal Rules of Civil Procedure], which provides that `the court may make provision by rule or order for the submission and determination of motions without oral hearing ...,' and by the fact that Rule 65 does not explicitly require an oral hearing on a preliminary injunction motion." Wright, Federal Practice, § 2949. See also E.D. Mich. LR 7.1(e)(2) ("Oral hearings on ... motions will be held unless the judge at any time prior to the hearing orders their submission and determination without oral hearing on the briefs filed as required by this rule.").

In this case, the written submissions to the Court so clearly demonstrate that Plaintiff is not entitled to a preliminary injunction that conducting a hearing would be manifestly pointless. Thus, the Court shall proceed without a hearing on the Motion. See E.D. Mich. LR 7.1(e)(2).

II. BACKGROUND

Plaintiff is a self-styled ticket "broker" that sells tickets to sporting events and concerts, primarily in Michigan, well in excess of the tickets' face value, in apparent violation of the Michigan Penal Code section that bars and punishes ticket scalping. See Mich. Comp. Laws § 750.465. For example, Plaintiff sold a $70.00 ticket to a Phoenix Coyotes versus Detroit Red Wings professional hockey game on February 25, 2001, at Joe Louis Area in Detroit, Michigan, for $210.00, of which $130.00 was for Plaintiff's "service charge" and $10.00 was for a non-cash transaction fee, according to a Plaintiff invoice dated February 2, 2001. See Schwartz (Pl.) Decl. Ex. 3 at 10. Plaintiff's "service charge" fluctuates. According to that same invoice, Plaintiff charged $183.75 for a $70.00 ticket to Toronto Maple Leafs versus Detroit Red Wings game on February 8, 2001, at Joe Louis Arena, of which $105.00 was for the "service charge" and $8.75 was for the non-cash transaction fee. See id. See also, e.g., Schwartz Decl. Exs. 3-4.

Prior to October 2000, Plaintiff did business as BIG TEN WORLDWIDE. However, the Big Ten Conference, which is a nonprofit intercollegiate athletic conference (consisting of eleven member schools: Indiana University, Michigan State University, Northwestern University, Ohio State University, Pennsylvania State University, Purdue University, University of Illinois, University of Iowa, University of Michigan, University of Minnesota, and University of Wisconsin), filed a lawsuit against Plaintiff because, inter alia, Plaintiff's "business was of particular concern to [the Big Ten Conference] not only because it involved the sale of tickets to sporting events at member schools, but the sale of tickets at higher than face value." See Big Ten Conf., Inc. v. Big Ten Worldwide Concert & Sport Club at Town Ctr., LLC, No. 96-70617, Docket Entry 117, at 3-4 (E.D.Mich. Oct. 10, 2000) (Hood, J.). The Big Ten Conference won the trademark suit, and Plaintiff was permanently enjoined from using the words BIG TEN or BIG 10 or any stylized version thereof. See id. at 33. Thereafter, Plaintiff began doing business as BIG TIME WORLDWIDE and using "bigtimeworldwide.com" as its Internet site.

Separately, Defendant's subsidiary, Marriott Ownership Resorts, Inc., which does business as, Marriott Vacation Club International ("MCVI"), began using the mark BIG TIME TICKETS in October 2001 in connection with ticket sales for theatrical shows and entertainment events that are localized to the area of Branson, Missouri, which is a vacation destination in the Ozark Mountains. Defendant also uses its mark to market vacation packages and to promote the sale of vacation ownership interests at MCVI resort properties within the Branson area.

Defendant utilizes the Internet domain name "bigtimetickets.com." This domain name was created by an individual named Larry Hamilton of Roswell, Georgia, on January 7, 2000, well before Plaintiff began doing business as BIG TIME WORLDWIDE. See Arlen (Def.) Decl. Ex. H. Mr. Hamilton transferred his ownership of this domain name to Defendant's agent on October 3, 2001. See Arlen Decl. at ¶ 10, Ex. I. Unlike Plaintiff's business practice on its Internet site, tickets sold under Defendant's mark cannot be obtained through the Internet or the mail; instead, Defendant's customers must actually come to the BIG TIME TICKETS retail building in Branson to acquire tickets. See Def. Br. at 3; Amico Decl. at ¶ 17.

Additionally, Defendant has secured Registration Number 2,631,928 for the mark BIG TIME TICKETS, which was issued by the United States Patent and Trademark Office ("PTO") on October 8, 2002. See Arlen Decl. Ex. A. The PTO published the mark for opposition on July 16, 2002, pursuant to 15 U.S.C. § 1062(a). Despite Plaintiff's knowledge of Defendant's mark, as evidenced by Plaintiff's cease and desist letter to Defendant on April 3, 2002, Plaintiff never filed a notice of opposition to Defendant's mark with the PTO, pursuant to 15 U.S.C. § 1063(a).

Instead, after acquiescing in the registration of Defendant's mark, Plaintiff filed the Complaint on November 5, 2002, alleging: Count I, false designation under 15 U.S.C. § 1125(a); Count II, unfair trade practices, Mich. Comp. Laws § 445.903; Count III, common law unfair competition; and Count IV, conversion. Plaintiff's state law claims are properly before this Court because all of the requirements of diversity jurisdiction, 28 U.S.C. § 1332, have been met. Plaintiff filed the present Motion with the Complaint. After Defendant filed a Response to the Motion on November 26, 2002, Plaintiff filed an Amended Complaint on December 4, 2002, adding Count V, which requests cancellation of the federal registration of Defendant's mark pursuant to 15 U.S.C. § 1119.

Plaintiff's Motion specifically requests an injunction to stop Defendant, Defendant's agents, and all others acting in concert with Defendant, from using all forms of BIG TIME TICKETS during the pendency of this litigation.

III. LEGAL STANDARD

"When determining whether to issue a preliminary injunction, a district court must consider four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction." Marchwinski v. Howard, 309 F.3d 330, 333 (6th Cir.2002) (internal quotations omitted) (quoting Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000)).

"These factors are not prerequisites, but are factors that are to be balanced against each other." Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566 573 (6th Cir.2002) (citing United Food & Comm'l Workers Union, Local 1099 v. S.W. Ohio Reg'l Transit Auth., 163 F.3d 341, 347 (6th Cir.1998)). Furthermore, "[a] preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it." Overstreet, 305 F.3d at 573 (emphasis added) (citing Leary, 228 F.3d at 739); see also United States v. Overton, 834 F.2d 1171, 1177 (5th Cir.1987) ("a preliminary...

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