Case Number: BC524978    Hearing Date: September 09, 2014    Dept: 46

BC524978
GOLDEN BEST PLUMBING INC VS TOUNI BAGHDASARIAN ET AL
Filing Date: 10/17/2013
Case Type: Other Intentional Tort-not PI/WD/PD (General Jurisdiction)

09/09/2014 Motion to Dismiss or Vacate Contempt Hearing

TENATIVE RULING: Motion is DENIED. The pending appeal does not stay the prohibitory injunction that this court previously issued. See discussion. Plaintiff’s charging affidavit alleges sufficient facts to proceed with the contempt trial. See below. Contempt trial to commence on 09/16/2014 as scheduled.

Plaintiff’s Request For Judicial Notice is granted to the extent that the court takes judicial notice of the existence and filing of the Plaintiff’s charging affidavit filed on 07/18/2014.

“The rule has been settled that an appeal does not stay the force of a prohibitive injunction, and that the lower court has full power to punish a violation of such injunction pending appeal.” Merced Min. Co. v. Fremont (1857) 7 Cal. 130; United Railroads of S.F. v. Superior Court of San Francisco (1916) 172 Cal. 80. (emphasis added.)

The case of Playboy Enterprises, Inc. v. Netscape Communications Corp. (2004) 354 F. 3d 1020 does not preclude a claim of trademark infringement from the use of meta data. In fact the decision at pages 1025-1026 clearly supports a right of action for trademark violations.

The charging allegations have provided sufficient basis for a finding of contempt in that all four required elements of the contempt charge. The ultimate determination of the contempt charge is now a question of proof at the time of trial. The allegation that Happy Rooter is using the prohibited trade name in its HTML tags is sufficient basis for a finding that Happy Rooter is using the “Mr. Express Plumbing & Rooter” and “Express Plumbing & Root” trade names by advertising their services in the HTML tags on their website using those prohibited trade names. This contention is supported by the Jason Frankovitz Declaration at paragraphs 7, 8, 10, 11, 12, 13, 14, 15, and 17. The allegations are sufficient to raise the contention that Happy Rooter is using the HTML tags to create interest confusion.

Defendants “willful use” is supported by the refusal of Happy Rooter to remove these HTML tags from their web site. The contention that Happy Rooter does not have control over or access to their web site to remove these tags from their metadata is at best a question of fact for the court’s consideration at the time of the contempt trial.