The opinion of the court was delivered by: Chesler, District Judge
This matter comes before the Court on the motion by Plaintiffs for a preliminary injunction, an asset freeze and seizure/impoundment of the infringing products. Defendants have opposed this motion. The Court has considered the papers filed by the parties. It rules on this motion without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the following reasons, Plaintiffs' motion will be granted.
Plaintiffs are three popular jeanswear companies. Defendants are a series of "pop-up" stores located in malls across America that sell budget jeanswear. Plaintiffs filed their complaint on March 25, 2011 alleging, inter alia, copyright and trademark infringement for copying designs and hang tags used by Plaintiffs. At that time, Plaintiffs also sought a temporary restraining order. At issue are a number of copyright and trademark registrations owned by Plaintiffs. Among these are included: Sweet People's Sparkle Cross Design; Sweet People's Wing Design; Sweet People's Beaded Cross Design; Sweet People's Silver Studded Fleur de Lis Design; Sweet People's Ebony Studded Fleur de Lis Design; Sweet People's Love Live For Every Occasion Hang Tag Design; MEK Denim's "M" Design Trademark; and True Religion's "U" Design Trademark. On March 29, 2011 this Court held a hearing where it granted Plaintiffs' request for a temporary restraining order and ordered expedited discovery. The Court's visual comparison of the various alleged infringing pocket designs and hang tags confirmed that Defendants' respective products are virtually indistinguishable from those of Plaintiffs'. While Defendants argue that the designs are in the public domain, that may be true as to the theme, but the striking resemblance is simply not accounted for by this explanation.
A. Preliminary Injunction
Plaintiffs seek a preliminary injunction against Defendants' continued sale of alleged counterfeits and infringements of Plaintiffs' jeanswear designs. "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. NRDC, Inc., 129 S. Ct. 365, 374 (2008).
Plaintiffs' preliminary injunction rests on two basic underlying claims: copyright infringement and trademark infringement and counterfeiting. As to the former, "two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). Sweet People owns copyrights relating to the contested designs. (Kim Decl., ¶¶ 8-17, Exs. A-L). Accordingly, under Section 410(c) of the Copyright Act, Sweet People has a presumption of ownership, originality and copyrightability in the works at issue.*fn1 Because of this presumption, the defendant bears the burden of proving invalidity. Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 668 (3d Cir. 1990). Defendants attempt to meet this burden by showing that Plaintiffs' copyrighted designs were taken from the public domain. (Goldaper Decl., Exs. E-G). While the internet images used in support of Defendants' argument are thematically similar to Plaintiffs' designs, they do not bear the striking resemblance that Plaintiffs' designs do. Accordingly, Defendants have not met their burden.
Under Feist, copying may be proven circumstantially by demonstrating "(1) that the defendant had access to the allegedly infringed copyrighted work, and (2) that the allegedly infringing work is substantially similar to the copyrighted work." Cottrill v. Spears, 87 F. App'x 803, 805 (3d Cir. 2004). As for access, not only are Plaintiffs products widely available, but Defendant Lee admitted in his deposition that he buys samples from retail stores such as Macy's, a store that sells Plaintiffs' products, in order to come up with styles. (Kim Decl., ¶ 4; Veronick Suppl. Decl. Ex. I at 69:11-70:15). Finally, as this Court earlier found at its March 29, 2011 hearing, the allegedly infringing jeans are strikingly similar to the Plaintiffs' jeans. Accordingly, Plaintiffs have demonstrated a likelihood of success on the merits as to their copyright infringement claim.
"To establish trademark infringement in violation of the Lanham Act, 15 U.S.C. § 1114, a plaintiff must prove that (1) the mark is valid and legally protectable, (2) it owns the mark, and (3) the defendant's use of the mark is likely to create confusion concerning the origin of goods or services." E.T. Browne Drug Co. v. Cococare Prods., Inc., 538 F.3d 185, 191 (3d Cir. 2008). Plaintiffs are the registered owners of the trademarks at issue. (Kim Decl., Ex. M; DeFazio Decl., Ex. B; Beattie Decl., Ex. B). This is "prima facie evidence of the validity of the registered mark." 15 U.S.C. § 1115(a).
The Third Circuit has established a set of ten factors which may indicate a likelihood of confusion: (1) the degree of similarity between the owner's mark and the alleged infringing mark; (2) the strength of the owner's mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark: (6) the evidence of actual confusion; (7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties' sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of similarity of functions; and (10) other factors suggesting the consuming public might expect the prior owner to manufacture a product in the defendant's market or that he is likely to expand into that market. Sabinsa Corp. v. Creative Compounds, LLC, 609 F.3d 175, 182 (3d Cir. 2010) (citing Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir. 1983)).
"[W]hile it is true that a district court may find that 'certain of the Lapp factors are inapplicable or unhelpful in a particular case,' the court must still 'explain its choice not to employ those factrs.'" Id. (citing A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198, 214 n.8 (3d Cir. ...