Case 4:19-cv-00681-SDJ Document 70 Filed 02/07/20 Page 1 of 6 PageID #: 2290

United States District Court

§
FLETCHER’S ORIGINAL STATE §
FAIR CORNY DOGS, LLC §
§ CIVIL ACTION NO. 4:19-cv-681-SDJ
v. §
§
FLETCHER-WARNER HOLDINGS LLC, §
ET AL. §

ORDER

Before the Court is Plaintiff Fletcher’s Original State Fair Corny Dogs, LLC’s

(“Fletcher’s”) Emergency Motion to Enforce Preliminary Injunction and Hold Defendants in

Contempt of Court. (Dkt. #61). The Court held a hearing on the motion on February 5, 2020.

Having reviewed the motion, the Defendants’ response, the evidence submitted by the parties, and

the arguments presented at the hearing, the Court GRANTS IN PART the motion.

I. Background

On January 13, 2020, the Court orally granted Fletcher’s preliminary-injunction motion.

(Dkt. #3). Four days later, on January 17, 2020, the Court issued its written order. (Dkt. #58). On

January 29, 2020, twelve days after the written order, and sixteen days after the oral order,

Fletcher’s filed the current emergency motion to enforce the preliminary injunction and hold the

Defendants in contempt of court. (Dkt. #61).

The preliminary injunction required Defendants, and all those in active concert or

participation with Defendants, to cease using the marks “Fletcher’s,” “Fletch,” “Eat Fletch,” and

“EatFletch,” and all confusingly similar variations of the foregoing, either by themselves or with

any other words or designs, in any form of interstate commerce related to the food and beverage

industry. The preliminary injunction also required Defendants to remove from commerce any

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advertisement or offer for sale in commerce its services or products displaying the marks

“Fletcher’s,” “Fletch,” “Eat Fletch,” and “EatFletch,” and all confusingly similar variations of the

foregoing, either by themselves or with any other words or designs, including but not limited to

Defendants’ website, social media, and accounts with third parties. Defendants were required to

comply within a reasonable time.

II. Defendants Have Deliberately Refused to Comply with the Preliminary

Plaintiff’s motion and supporting evidence establish that Defendants have substantially

failed to comply with the preliminary injunction entered by the Court. Worse, Defendants have

undertaken actions demonstrating a deliberate and intentional refusal to comply with the

injunction.

To begin with, Defendants have continued to use the marks “Fletch,” “Eat Fletch,” and

“EatFletch,” (referenced collectively herein as the “Fletch marks”), in direct violation of the

preliminary injunction. Rather than removing the Fletch marks, Defendants put a single line of

duct tape through it, leaving the mark fully discernable. (Dkt. #69, Exhibit 1). Thus, Defendants’

physical signage, including on their catering van and at the location of their store, have continued

to display the easily readable Fletch marks with but a single line drawn through the mark using

duct tape or magnets, as seen in the picture below.

Defendants’ store front window.

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Dispelling any doubt as to their purpose, in digital media Defendants also continued to use

the Fletch marks, again employing a digitally-configured single line or other device to only

minimally obscure the name “Fletch,” while leaving the mark clearly discernable.

In so doing, Defendants have intentionally created a slightly modified version of the Fletch

marks, specifically the mark “Fletch” with a gray line through it. Defendants have even gone so

far as to alter their Facebook accounts to post “Fletch” with a gray transparent line through it in

several instances. Id. Defendants’ conduct unmistakably reflects a calculated refusal to comply

with the preliminary injunction. Indeed, Defendants’ actions attempt to turn the injunction on its

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head. The injunction required Defendants to cease using the existing Fletch marks. Defendants

instead created new and additional, minimally modified versions of the Fletch marks.

Further, Defendants continued to display the name “Fletch” as the name of their Facebook

page after the injunction was entered, only deactivating the page after Plaintiff filed its contempt

motion. Id.; (Dkt. #67, Exhibit A). Similarly, Defendants only made their Twitter handle,

“@eatfletch,” private after the filing of Plaintiff’s motion. (Dkt. #67, Exhibit A). Since the

injunction was entered, Defendants have also continued to prominently display a disclaimer at the

front of their store that uses the words “Fletch” and “Fletcher’s,” claiming that Defendants are not

affiliated with Fletcher’s. (Dkt. #69, Exhibit 1). The Court’s injunction, however, already made

clear that such a “disclaimer” was ineffective and should be removed.

In addition, Defendants continued to operate the eatfletch.com site after the injunction was

entered, redirecting traffic to their new website until after Fletcher’s filed their motion for

contempt. Fletcher’s has shown that, although the eatfletch.com domain is no longer redirecting

internet traffic to Defendants’ new website, it remains operational, offering visitors an option to

subscribe and leave their email for a “full service event consulting production and management

company located in Dallas, TX.” (Dkt. #69, Exhibit 3). Fletcher’s has also provided the Court with

evidence of numerous ways in which Defendants continue to prominently display the marks

“Fletch,” “eat Fletch,” or “eatFletch” on their personal social media, company social media, and

on their new company website, corndogwithnoname.com. Id.

In this regard, the Court notes that Defendants Jace Christensen and Victoria Warner

Fletcher are subject to the Court’s injunction, as both company officers and as individual

Defendants in this case. See Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 91 F.3d 914,

919, 922 (7th Cir. 1996); Mead Johnson & Co. v. Baby’s Formula Service, Inc., 402 F.2d 19, 23

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(5th Cir. 1968). Defendant Christensen has a public webpage that she has continuously used to

advertise the Defendants’ business. (Dkt. #69, Exhibit 3). Defendants on their company LinkedIn

account continue to direct individuals to eatfletch.com. Defendants are also advertising their

business as “Fletch” on their corndogswithnoname.com site. Id. For example, the

corndogswithnoname.com site advertises the business as “Fletch” in promoting future events, such

as an April 18, 2020, University of Texas football game. Id.

Finally, by their own admission, Defendants have completely failed to contact third parties,

those acting in concert with them, or any of their business partners, in order to ensure that those

individuals and entities comply with the Court’s injunction. (Dkt. #67, Exhibit A). Indeed,

Defendants’ own testimony reflects that their purported efforts to comply with the injunction have

been wholly inadequate at best, and as discussed herein Defendants have undertaken certain

actions unequivocally calculated to violate the terms of the injunction.

III. Conclusion

“Courts possess the inherent authority to enforce their own injunctive decrees.” Travelhost,

Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995) (citing Waffenschmidt v. MacKay, 763 F.2d

711, 716 (5th Cir. 1985), cert. denied, 474 U.S. 1056 (1986)).

For all of the reasons set forth herein, the Court GRANTS IN PART Fletcher’s Emergency

Motion to Enforce Preliminary Injunction and Hold Defendants in Contempt of Court (Dkt. #61).

It is, therefore, ORDERED that, by no later than February 14, 2020, Defendants will fully

and completely comply with the preliminary injunction issued weeks ago by this Court. To be fully

compliant, Defendants must remove all of the Fletch marks, or any other confusingly similar

marks, from their restaurant, social media, catering van, billboards, websites, and any other

physical or digital location, in accordance with the clear terms of the injunction. The term

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“remove,” as applicable here, means to erase the mark entirely, not to cover it partially or wholly

with duct tape, magnets, or any similar covering.

Defendants must also immediately contact all parties with whom they have contracts or

dealings who may be advertising, displaying, or using the aforementioned marks on their behalf.

Defendants must immediately cease to display the “disclaimer” in their store, or in any other

location, physical or digital. Defendants must also immediately shut down the domain

eatfletch.com completely, such that no content is displayed when the page is visited and there can

be no interactivity with the end user.

Defendants are reminded that courts “need not anticipate every action to be taken in

response to its order, nor spell out in detail the means in which its order must be effectuated.” Am.

Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 578 (5th Cir. 2000).

Further, by no later than February 14, 2020, the Defendants are ORDERED to file with
.
the Court and serve on Fletcher’s a report in writing and under oath setting forth in detail the

precise manner and form in which the Defendants have complied with the injunction. If Defendants

are in any way not fully compliant with the terms of the preliminary injunction by February 14,

2020, they are ORDERED to provide the Court in their report (1) a date certain when Defendants

will be fully compliant, and (2) an explanation of the reasons why it was impossible for Defendants

to fully comply by February 14, 2020, with an injunction ordered a month earlier, on January 13,

2020.

So ORDERED and SIGNED this 7th day of February, 2020.

____________________________________
SEAN D. JORDAN
UNITED STATES DISTRICT JUDGE