In an opinion today, Judge Oetken clarified a preliminary injunction granted to the maker of a product called “My Cinema Lightbox,” a backlit sign similar to old-fashioned movie theater displays (see image below), against a similar product called “My Marquee Lightbox.” After winning its motion for a preliminary injunction, the plaintiff began instructing retailers that they could no longer sell “My Marquee Lightbox.” Judge Oetken clarified that the Order did not permit the plaintiff to do so:
[W]hile the Court agrees that there are circumstances in which such nonparties would be bound by the terms of the preliminary injunction, [the plaintiff] has put forth no evidence to satisfy Rule 65’s requirement that, to be bound, nonparties must be “in active concert or participation.” Without evidence that the relationship between [the plaintiff] and the nonparty retailers is “anything but an arm’s length transaction involving totally distinct entities,” the Court’s preliminary injunction Order does not purport to bind and is not binding on nonparty retailers and/or distributors.
. . .
[The plaintiff] argues that its communications with nonparties simply amount to “providing a publicly filed injunction to nonparties whose conduct may be implicated by that ruling.” But [the plaintiff’s] representations to nonparties belie that assertion. For example, one email to Nordstrom improperly indicates that “any retailer who is engaged in reselling My Marquee Lightbox must also cease sales and advertising of the product immediately.” . . . Under these circumstances[the defendant’s] application for clarification is well taken.