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Filing # 51581622 E-Filed 01/24/2017 05:03:12 PM
IN THE CIRCUIT COURT, OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA
CASE NO.: 2016-CA-010923-O
DIVISION: 32
COMPLEX BUSINESS
LITIGATION COURT
HOA HAU PHU NHAN FLORIDA, LLC,
Plaintiff,
vs.
HUNG QUOC NGUYEN, TO ANH NGUYEN,
XUAN TRA NGUYEN, LIEN NHU TON NHU
HUYEN LAI and LIEN NHI VU,
Defendants.
/
PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO
PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY INJUNCTION
Plaintiff Hoa Hau Phu Nhan Florida, LLC, through its undersigned counsel,
hereby submits this Reply to Defendants’ Response in Opposition to Plaintiff’s
Emergency Motion for Temporary Injunction (“Response”) as to Pageant Taking
Place on January 28, 2017, as follows:
I. Introduction
Just hours before the noticed hearing on Plaintiff’s Emergency Motion for
Temporary Injunction (“Injunction Motion”), Defendants filed their Response in
Opposition (“Response”), despite the fact that they had been found to be in default
and had no right or standing to file the Response. At the hearing, the Court granted
Plaintiff’s Injunction Motion and ordered Defendants to cease all infringing use of
Plaintiff’s service marks. The full injunction is now in place. At this point, then,
this reply is moot. Moreover because the Defendants are in default, they have no
role in this case, other than to attempt to set aside the default, as they are currently
doing. That motion is set for hearing on January 26, 2017.
However, in an abundance of caution, and to adhere to the Court’s deadline
for filing a reply as set forth in the injunction hearing on January 19, 2017, Plaintiff
files this Reply to the Response. Defendants’ Response addresses only two of the
four factors necessary for injunctive relief, and fails to provide any contravening
evidence or substantive case law to support its argument beyond a general
discussion of the legal standard.
I. Defendants Fail to Show That Plaintiff is Not Likely to Succeed on
the Merits of Its Claims.
First, Defendants argue that Plaintiff is not likely to succeed on the merits
because it has allegedly committed fraud, although Defendants present no
substantive evidence of such. Defendants argue that Plaintiff knows it does not
have rights in its service marks, and therefore committed fraud. The only
“evidence” Defendants provide to support this assertion is an un-authenticated
2
2012 press release stating that the Mrs. Vietnam Pageant is being held at the annual
Lunar New Year Festival, a Mrs. Vietnam Florida application supposedly from
2012, a check from the Vietnamese Community of Central Florida, Inc., and a
screenshot of a store’s website where the winner’s crown can be purchased.1 All of
this conforms to what Plaintiff stated in the Complaint and Motion for Injunction:
the Vietnamese Community of Central Florida has in the past rented the venue,
invited performers, entertainers, and producers, and promoted the Lunar New Year
Festival that has included the Pageant. (Verif. Comp., ¶¶ 11-27).
Mrs. Kim Thanh was asked to create an event to be held at the Lunar New
Year Festival, and she decided to produce the Mrs. Vietnam Pageant. (Verif.
Comp., ¶¶ 11-12). That she was not paid is irrelevant to her accrual of rights in the
service mark, as she controlled all aspects of the Pageant and for that reason, she
and her successor company own the marks identifying the Pageant. Moreover, just
as the Vietnamese Community of Central Florida does not own the trademark
rights to the “traditional lion dances, martial arts demonstrations . . . and musical
performances & cultural dances” referred to in the press release, it does not own
the rights to the service marks.
1
The alleged “police report” is nothing more than a self-serving online form that Defendant Hung Nguyen filled out
himself. The Defendants are trying to shift this lawsuit into a dispute about the Vietnamese Community of Central
Florida, but that is not the issue here. Mr. Peter Pham is the President, as is reflected on the Secretary of State for
Florida’s website. Mr. Pham attests that the Vietnamese Community of Central Florida does not have any
ownership rights in the service marks, and that the service marks belong to Plaintiff.
3
As for the check, the Vietnamese Community of Central Florida has been
one of the sponsors Mrs. Kim Thanh secured for the Pageant. In the past if the
Vietnamese Community of Central Florida’s budget allowed, it might sponsor
aspects of the Pageant, such as the contestants’ prize money. This does not prove
that the Plaintiff is not the owner of the marks.
Finally, in regard to the unique crown used in the Pageant, Defendants try to
create controversy where there is none. Plaintiff does not claim exclusive use of
the crown, its argument is that this particular crown has been used consistently and
consumers have come to recognize it as a symbol of the Pageant.
In sum, Defendants have failed to provide any substantive reasons why
Plaintiff is not likely to succeed on the merits of its claims because of fraud or any
other reason. They have the burden of proof to establish that Plaintiff does not own
the trademarks, and they have produced no evidence to support their claim,
II. Defendants Incorrectly Assert that Plaintiff has Not
Demonstrated Irreparable Harm.
The thrust of Defendants’ second argument appears to be that Plaintiff has
not established why monetary damages are insufficient to compensate Plaintiff for
the confusion in the marketplace and loss of goodwill. Although addressed for
several pages in Plaintiff’s Injunction Motion, Defendants seem to believe that
because Plaintiff was able to host its Pageant already, that it must not be
4
irreparably harmed. That is not the case. Florida courts do not require that the
“irreparable injury” necessary for an injunction be a catastrophic or extensive
injury. Sun Elastic Corp. v. O.B. Indus., 603 So.2d 516, 518 (Fla. 3rd DCA 1992).
The fact that consumers have been confused between the pageants—and more are
likely to be confused in the future—due to the confusingly similar marks,
irreparably harms Plaintiff because money cannot remedy the confusion. Levi
Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982, 986 (11th Cir.
1995) (“There is no doubt that the continued sale of thousands of pairs of
counterfeit jeans would damage LS & Co.'s business reputation and might decrease
its legitimate sales.”); Abercrombie & Fitch Trading Co. v.
Abercrombieclassic.com, 2016 U.S. Dist. LEXIS 84509 (S.D. Fla. April 12, 2016)
(finding that while plaintiff’s trademark was being infringing it had “no adequate
remedy at law so long as Defendants continue[d] . . . because Plaintiff cannot
control the quality of what appears to be its products in the marketplace.”).
Here, Plaintiff has more than sufficiently articulated the irreparable harm it
is suffering because of Defendants’ infringing acts. (Verif. Comp., ¶¶ 28-48).
Accordingly, the Court should find that Plaintiff has established irreparable harm
and enjoin Defendants as requested in the Injunction Motion.
III. Conclusion
Defendants have shown any basis to conclude that Plaintiff has not proven
5
that it is likely to succeed on the merits, and is not suffering irreparable harm from
Defendants’ actions2. Therefore the Injunction should continue in place and
Defendants must cease all infringing actions.
Respectfully submitted January 24, 2017.
/s/Brock A. Hankins
Ava K. Doppelt
Florida Bar No. 393738
adoppelt@addmg.com
Brock A. Hankins
Florida Bar No. 112531
bhankins@addmg.com
ALLEN, DYER, DOPPELT,
MILBRATH & GILCHRIST, P.A.
255 South Orange Avenue, Suite 1401
Orlando, FL 32801
Telephone: (407) 841-2330
Facsimile: (407) 841-2343
Attorneys for Plaintiff
2
Moreover, all these allegations were admitted by virtue of the default, which remains in place.
6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 24, 2017, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system that then sent
electronic notification to the following:
Thomas A. Sadaka, Esq.
Sadaka Law Group, PLC
1420 Celebration Blvd, Suite 200
Celebration, Florida 34747
Oanh Kim Tran, Esq.
101 Plaza Real South, Suite 218
Boca Raton, FL 33432
/s/ Brock A. Hankins
Brock A. Hankins
7
Preview
Filing # 51581622 E-Filed 01/24/2017 05:03:12 PM IN THE CIRCUIT COURT, OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA CASE NO.: 2016-CA-010923-O DIVISION: 32 COMPLEX BUSINESS LITIGATION COURT HOA HAU PHU NHAN FLORIDA, LLC, Plaintiff, vs. HUNG QUOC NGUYEN, TO ANH NGUYEN, XUAN TRA NGUYEN, LIEN NHU TON NHU HUYEN LAI and LIEN NHI VU, Defendants. / PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY INJUNCTION Plaintiff Hoa Hau Phu Nhan Florida, LLC, through its undersigned counsel, hereby submits this Reply to Defendants’ Response in Opposition to Plaintiff’s Emergency Motion for Temporary Injunction (“Response”) as to Pageant Taking Place on January 28, 2017, as follows: I. Introduction Just hours before the noticed hearing on Plaintiff’s Emergency Motion for Temporary Injunction (“Injunction Motion”), Defendants filed their Response in Opposition (“Response”), despite the fact that they had been found to be in default and had no right or standing to file the Response. At the hearing, the Court granted Plaintiff’s Injunction Motion and ordered Defendants to cease all infringing use of Plaintiff’s service marks. The full injunction is now in place. At this point, then, this reply is moot. Moreover because the Defendants are in default, they have no role in this case, other than to attempt to set aside the default, as they are currently doing. That motion is set for hearing on January 26, 2017. However, in an abundance of caution, and to adhere to the Court’s deadline for filing a reply as set forth in the injunction hearing on January 19, 2017, Plaintiff files this Reply to the Response. Defendants’ Response addresses only two of the four factors necessary for injunctive relief, and fails to provide any contravening evidence or substantive case law to support its argument beyond a general discussion of the legal standard. I. Defendants Fail to Show That Plaintiff is Not Likely to Succeed on the Merits of Its Claims. First, Defendants argue that Plaintiff is not likely to succeed on the merits because it has allegedly committed fraud, although Defendants present no substantive evidence of such. Defendants argue that Plaintiff knows it does not have rights in its service marks, and therefore committed fraud. The only “evidence” Defendants provide to support this assertion is an un-authenticated 2 2012 press release stating that the Mrs. Vietnam Pageant is being held at the annual Lunar New Year Festival, a Mrs. Vietnam Florida application supposedly from 2012, a check from the Vietnamese Community of Central Florida, Inc., and a screenshot of a store’s website where the winner’s crown can be purchased.1 All of this conforms to what Plaintiff stated in the Complaint and Motion for Injunction: the Vietnamese Community of Central Florida has in the past rented the venue, invited performers, entertainers, and producers, and promoted the Lunar New Year Festival that has included the Pageant. (Verif. Comp., ¶¶ 11-27). Mrs. Kim Thanh was asked to create an event to be held at the Lunar New Year Festival, and she decided to produce the Mrs. Vietnam Pageant. (Verif. Comp., ¶¶ 11-12). That she was not paid is irrelevant to her accrual of rights in the service mark, as she controlled all aspects of the Pageant and for that reason, she and her successor company own the marks identifying the Pageant. Moreover, just as the Vietnamese Community of Central Florida does not own the trademark rights to the “traditional lion dances, martial arts demonstrations . . . and musical performances & cultural dances” referred to in the press release, it does not own the rights to the service marks. 1 The alleged “police report” is nothing more than a self-serving online form that Defendant Hung Nguyen filled out himself. The Defendants are trying to shift this lawsuit into a dispute about the Vietnamese Community of Central Florida, but that is not the issue here. Mr. Peter Pham is the President, as is reflected on the Secretary of State for Florida’s website. Mr. Pham attests that the Vietnamese Community of Central Florida does not have any ownership rights in the service marks, and that the service marks belong to Plaintiff. 3 As for the check, the Vietnamese Community of Central Florida has been one of the sponsors Mrs. Kim Thanh secured for the Pageant. In the past if the Vietnamese Community of Central Florida’s budget allowed, it might sponsor aspects of the Pageant, such as the contestants’ prize money. This does not prove that the Plaintiff is not the owner of the marks. Finally, in regard to the unique crown used in the Pageant, Defendants try to create controversy where there is none. Plaintiff does not claim exclusive use of the crown, its argument is that this particular crown has been used consistently and consumers have come to recognize it as a symbol of the Pageant. In sum, Defendants have failed to provide any substantive reasons why Plaintiff is not likely to succeed on the merits of its claims because of fraud or any other reason. They have the burden of proof to establish that Plaintiff does not own the trademarks, and they have produced no evidence to support their claim, II. Defendants Incorrectly Assert that Plaintiff has Not Demonstrated Irreparable Harm. The thrust of Defendants’ second argument appears to be that Plaintiff has not established why monetary damages are insufficient to compensate Plaintiff for the confusion in the marketplace and loss of goodwill. Although addressed for several pages in Plaintiff’s Injunction Motion, Defendants seem to believe that because Plaintiff was able to host its Pageant already, that it must not be 4 irreparably harmed. That is not the case. Florida courts do not require that the “irreparable injury” necessary for an injunction be a catastrophic or extensive injury. Sun Elastic Corp. v. O.B. Indus., 603 So.2d 516, 518 (Fla. 3rd DCA 1992). The fact that consumers have been confused between the pageants—and more are likely to be confused in the future—due to the confusingly similar marks, irreparably harms Plaintiff because money cannot remedy the confusion. Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982, 986 (11th Cir. 1995) (“There is no doubt that the continued sale of thousands of pairs of counterfeit jeans would damage LS & Co.'s business reputation and might decrease its legitimate sales.”); Abercrombie & Fitch Trading Co. v. Abercrombieclassic.com, 2016 U.S. Dist. LEXIS 84509 (S.D. Fla. April 12, 2016) (finding that while plaintiff’s trademark was being infringing it had “no adequate remedy at law so long as Defendants continue[d] . . . because Plaintiff cannot control the quality of what appears to be its products in the marketplace.”). Here, Plaintiff has more than sufficiently articulated the irreparable harm it is suffering because of Defendants’ infringing acts. (Verif. Comp., ¶¶ 28-48). Accordingly, the Court should find that Plaintiff has established irreparable harm and enjoin Defendants as requested in the Injunction Motion. III. Conclusion Defendants have shown any basis to conclude that Plaintiff has not proven 5 that it is likely to succeed on the merits, and is not suffering irreparable harm from Defendants’ actions2. Therefore the Injunction should continue in place and Defendants must cease all infringing actions. Respectfully submitted January 24, 2017. /s/Brock A. Hankins Ava K. Doppelt Florida Bar No. 393738 adoppelt@addmg.com Brock A. Hankins Florida Bar No. 112531 bhankins@addmg.com ALLEN, DYER, DOPPELT, MILBRATH & GILCHRIST, P.A. 255 South Orange Avenue, Suite 1401 Orlando, FL 32801 Telephone: (407) 841-2330 Facsimile: (407) 841-2343 Attorneys for Plaintiff 2 Moreover, all these allegations were admitted by virtue of the default, which remains in place. 6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 24, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system that then sent electronic notification to the following: Thomas A. Sadaka, Esq. Sadaka Law Group, PLC 1420 Celebration Blvd, Suite 200 Celebration, Florida 34747 Oanh Kim Tran, Esq. 101 Plaza Real South, Suite 218 Boca Raton, FL 33432 /s/ Brock A. Hankins Brock A. Hankins 7