Okay, it’s not quite Love in the Time of Cholera, but it’s still not a title I thought I’d ever write. And yes, we are in the midst of a global pandemic with news that gets more terrifying by the day, with all of us struggling to adjust to this new reality and the fears that come along with it. But we also have to find our moments of levity if we’re going to make it through without going completely bonkers.
And that levity is just what Judge Seeger, United States District Judge for the Northern District of Illinois (aka Chicago), found last week. The case before him, Art Ask Agency v. [Various Defendants], involves a lawsuit alleging trademark infringement. Art Ask claimed that the various defendants (both individuals and companies) were infringing on its trademarks, which include lifelike portrayals of fantasy subjects. According to the court, examples of the infringing designs included “a puzzle of an elf-like creature embracing the head of a unicorn on a beach” and “a purse with a large purple heart, filled with the interlocking heads of two amorous-looking unicorns.” (Yes, I did a Google search to see if I could find these products and no, I could not find any, thank goodness.)
The plaintiff was seeking an immediate temporary restraining order (aka TRO) — a tool that a plaintiff can use early in a case to temporarily stop defendants from doing certain acts if the plaintiff can show that: (1) it is likely to succeed on the merits of its claim; (2) it will suffer irreparable harm if it doesn’t get the TRO; (3) that the balance of equities tips in its favor (i.e., it seems fair to grant the TRO); and (4) the injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Irreparable harm means that the plaintiff will need to show that getting money or some other verdict at the end of the case won’t be enough to make the plaintiff whole — the action must be stopped now. Irreparable harm can include such things as your house being sold out from under you or a competitor stealing your customers right now.
While the plaintiff was seeking a hearing on its TRO, of course, the US and the world were dealing with the Covid 19 pandemic. Last week, the United States Supreme Court announced that, for the first time since the Spanish Flu, it would be closing its doors and postponing oral arguments. State and federal courts have likewise followed suit, postponing jury trials and trying to rearrange their calendars so that the truly pressing issues they must deal with even in the midst of a pandemic can safely proceed while pushing back other, less crucial court proceedings.
With this pandemic and the resulting court changes in mind, Judge Seeger pushed back plaintiff’s requested hearing on the TRO for a few weeks. In response, the plaintiff first moved the court to reconsider its order and then filed an emergency motion. It was in response to this motion for reconsideration that Judge Seeger issued his now famous “Unicorn Opinion.”
In this opinion, he addressed the plaintiff’s sense of urgency and actions in attempting to get this immediate TRO. All plaintiffs seeking a TRO are generally in a rush because they believe the harm is imminent and serious, of course. In this instance, however, not only was the plaintiff wanting relief immediately, but they also wanted wide-ranging relief from a number of businesses that weren’t even parties to the lawsuit. In this case, the plaintiff was wanting to: force financial institutions to lock down accounts, require domain name registries to shut down websites, and force third parties, such as Amazon, eBay, Alibaba, Facebook, Twitter, and Google, to take immediate actions within a few days of them of the TRO being entered. As the court noted, such an order could distract people and businesses with far bigger concerns right now. In examining the potential harm to the plaintiff, the court stated: “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.”
As a result, Judge Seeger denied plaintiff’s motion for reconsideration, thereby refusing to have an immediate hearing on the plaintiff’s TRO. In making this ruling, the court apparently felt that plaintiff’s counsel had not tempered their client’s sense of urgency appropriately in light of the bigger picture. In a line I may have embroidered on a pillow, the court quoted Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” In the court’s final lines, Judge Seeger put the TRO in perspective for the plaintiff: “The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied.”
This opinion reminds us all that we need to keep things in perspective, especially now when the real challenges we are facing are literally life or death. But hopefully, just like Judge Seeger, we’ll all be able to find moments of levity in the chaos.
In the meantime, if you have the ability to help others less fortunate than you, please check out some of these resources to see what you can do. While social distancing is crucial right now, we also all need to come together as a community to overcome this global challenge.
Finally, if you run out of shows, blogs, and podcasts to binge while sheltering at home, feel free to check out any or all of the 682 state and federal cases on Westlaw that include the word “unicorn” somewhere in the case.
Stay healthy and stay home, legal geeks of the world!!
20-cv-1666 -- Unicorn Order -- Art Ask Agency 3-18-20
