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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

FITBIT, INC.,

Plaintiff,

v.

LAGUNA 2, LLC, et al.,

Defendants.

Case No. 17-cv-00079-EMC 

ORDER GRANTING IN PART AND 

DEFERRING IN PART PLAINTIFF’S 

EX PARTE MOTION FOR 

TEMPORARY RESTRAINING ORDER

Docket No. 12

Plaintiff Fitbit, Inc., has filed suit against Defendants Laguna 2, LLC, and its managing 

partner, Joel Blank (collectively, “L2”), asserting claims for, inter alia, trademark infringement

and trademark dilution in violation of federal law. Currently pending before the Court is Fitbit’s 

motion for a temporary restraining order (“TRO”) and other associated relief. A hearing was held 

on the motion on January 17, 2017. As indicated at the hearing and for the reasons stated on the 

record therein and as set forth herein, the Court hereby GRANTS in part and DEFERS in part 

Fitbit’s motion.

The standard for issuing a temporary restraining order is essentially 

the same as that for issuing a preliminary injunction. See Missud v. 

State of Cal., No. C-14-1503 EMC, 2014 U.S. Dist. LEXIS 73376, 

at *1 (N.D. Cal. May 28, 2014). The moving party must 

demonstrate that: (1) it is likely to succeed on the merits; (2) it is 

likely to suffer irreparable harm in the absence of relief; (3) the 

balance of equity tips in its favor; and (4) the injunction is in the 

public interest. See Beaty v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 

2011) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 

20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)).

M/A-COM Tech. Sols., Inc. v. Integrated Semiconductor Serv., No. C-15-2423 EMC, 2015 U.S. 

Dist. LEXIS 73353, at *1-2 (N.D. Cal. June 5, 2015). The Ninth Circuit has adopted a sliding 

scale approach wherein the robustness of the requisite showing on the merits varies with the 

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United States District Court

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balance of hardships; temporary injunctive relief may be issued where, e.g., the likelihood of 

success is such that serious questions going to the merits are raised and the balance of hardships 

tips sharply in the plaintiff’s favor. See Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 

1131-32 (9th Cir. 2011).

In the instant case, the Court finds that, based on the record submitted, Fitbit has submitted 

sufficient evidence to justify limited temporary injunctive relief. More specifically, there are 

serious questions going to the merits because there is a good case for, e.g., trademark infringement

and unfair competition based on L2’s marketing and packaging of the refurbished Fitbit product 

L2 sells. Although L2 has since appeared to have taken steps to indicate that the refurbished 

product it sells are not being sold by Fitbit (e.g., changing the packaging for the refurbished 

product and the wording on the accompanying warranty card), there is arguably still some lack of 

clarity, particularly with respect to the eBay website’s description of the goods being sold by L2.1 

Despite the disclaimers, it is not abundantly clear that there is no affiliation between the seller and 

Fitbit and that the items are not refurbished by Fitbit nor warranted by Fitbit. Incorporating full 

and effective disclosures on eBay, etc., would impose no hardship on L2, whereas absent relief, 

Fitbit could suffer harm to its reputation as a result of consumer confusion. Given the balance of 

hardships tips sharply in Fitbit’s favor and its showing on the merits on this part of the claims, 

limited temporary injunctive relief is warranted. 

Accordingly, under these circumstances, the Court concludes that Fitbit is entitled to 

limited temporary injunctive relief. More specifically, L2 is hereby ordered to revise the 

description it provides to eBay for use on the eBay website (i.e., to clarify that L2 is not affiliated 

with Fitbit and that the product being sold was not refurbished and is not warranted by Fitbit). 

Comparable action should also be taken with respect to other retailers that L2 uses to sell its

goods. See note 1, supra. The Court expects the parties to immediately meet and confer as to 

what language should be used for the eBay website (and potentially other retailers’ websites). L2 

 

1 At the hearing, counsel for L2 was not able to state whether L2 has been selling the refurbished 

products at issue through retailers other than eBay. To the extent L2 is selling to other retailers, 

the substance of this order is equally applicable to the other retailers’ websites or other means of 

advertising.

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shall also provide confirming evidence to Fitbit that L2 has in fact changed its product packaging 

and accompanying warranty card. A stipulation regarding the language to be used on, e.g., the 

eBay website shall be filed by January 20, 2017. L2 shall thereafter take corrective action no 

later than January 24, 2017. Absent further order from the Court, this order granting limited 

temporary injunctive relief shall expire on February 2, 2017. Although this means that the relief 

shall last for sixteen (16) days rather than the fourteen (14) contemplated by Federal Rule of Civil 

Procedure 65(b), the Court finds that there is good cause for a brief two-day extension. 

At this juncture, the above is the only temporary injunctive relief being awarded. To the 

extent Fitbit has asked for additional relief – e.g., an order barring L2 from selling the 18,000 units 

of refurbished product currently in its possession, custody, or control (i.e., until Fitbit has had an 

opportunity to inspect the product to see if it has previously been deemed “scrap” by Fitbit) – that 

request is denied without prejudice. Here, Fitbit has not made an adequate showing of serious 

questions going to the merits because, e.g., it has not provided record evidence as to what scrap

product is; what criteria it uses to deem a product “scrap”; what happens with scrap product (as 

well as “refurbishable” product); and whether scrap product is materially inferior to new or 

refurbished items. There is no evidence indicating what proportion of L2’s product was destined 

for scrap and that the diversion of such products was unauthorized by Fitbit. Without a more 

robust evidentiary showing on the likelihood of success on the merits (particularly with respect to 

the infringement and dilution claims), and given that the full relief sought would impose more 

hardship on L2 than the disclosure relief ordered herein, the Court shall not grant such relief at this 

time.

As indicated at the hearing, however, the Court shall give Fitbit an opportunity to make an 

evidentiary showing to support further temporary injunctive relief and thus continues the TRO 

hearing. Fitbit shall file its supplemental brief and/or evidence by January 20, 2017. L2 shall file 

its responsive brief and/or evidence by January 26, 2017. The Court shall hold a further 

hearing on the matter on February 2, 2017, at 1:30 p.m. At the hearing, the parties shall also 

be prepared to address whether they are willing to stipulate to a continuation of the limited 

temporary injunctive relief awarded above.

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As a final point, the Court notes that, to the extent L2 argues that the Court lacks personal 

jurisdiction over it, the Court is skeptical. See D.light design, Inc. v. Boxin Solar Co., Ltd., 2015 

U.S. Dist. LEXIS 161062 (N.D. Cal. Dec. 1, 2015) (discussing personal jurisdiction analysis in

Walden v. Fiore, 134 S. Ct. 1115 (2014); noting that “[c]ourts that have interpreted Walden in the 

context of virtual contacts have generally found personal jurisdiction over defendants who conduct 

interactive online activities with forum residents or direct business to the forum state”); see also

Blank Decl. ¶ 11 & Ex. A (stating that L2 “obtain[s] the [refurbished] Fitbit devices from a 

company called Cali Resources,” which is based in California). To the extent L2 asserts that the 

case should be transferred to the District of New Jersey, the Court reserves ruling. The Court is 

inclined to await a decision by the New Jersey court as to whether it has personal jurisdiction over 

Fitbit. L2 has not adequately established that this Court cannot grant Fitbit interim relief in the 

meantime.

This order disposes of Docket No. 12.

IT IS SO ORDERED.

Dated: January 18, 2017

______________________________________

EDWARD M. CHEN

United States District Judge

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