United States District Court, E.D. New York
DECISION AND ORDER
Donnelly United States District Judge.
plaintiff, CSI Entertainment, Inc. ("CSI"), brought
this action against the defendants, Anthem Media Group, Inc.
("Anthem") and Fight Media Inc. ("FM")
(collectively, the "defendants"), alleging that the
defendants, in using the mark FIGHT NETWORK, infringed on two
of CSI's federally registered service marks: (1) FIGHT
SPORTS, and (2) FIGHT SPORTS NETWORK.. On June 16, 2015, CSI
moved for an order to show cause for a preliminary injunction
to prohibit the defendants from using their mark, FIGHT
NETWORK, during the pendency of this litigation. (ECF No. 4.)
On November 3, 2015, Magistrate Judge Ramon E. Reyes, Jr.,
held a four-day preliminary injunction hearing, and
thereafter issued a Report and Recommendation
("R&R") on December 30, 2016, recommending that
the plaintiffs request for a preliminary junction be denied.
(ECF No. 75.) The plaintiff filed objections to the R&R
on March 10, 2017, and the defendants responded to the
plaintiffs objections on April 7, 2017. On June 23, 2017, CSI
filed a motion to supplement its objections, to which the
defendants responded on June 26, 2017. (ECF No. 86; ECF No.
reviewed, among other things, the plaintiffs complaint,
plaintiffs brief in support of the order to show cause and
the defendants' opposition to that brief, Judge
Reyes' R&R, the plaintiffs objections to the R&R,
and the defendants' response to the plaintiffs
objections. For the reasons described in further detail
below, I adopt Judge Reyes' thorough and well-reasoned
R&R in its entirety, and dismiss the plaintiffs request
for a preliminary injunction with prejudice.
facts of this matter are discussed in greater detail in Judge
Reyes' R&R. (ECF No. 75.) In summary, the plaintiff,
CSI, is a multimedia company that acquires, produces, and
distributes fight-related content through various media
outlets in the United States and internationally. (ECF No. 75
at 3; ECF No. 80 at 3.) Among other trademarks, CSI has two
federally registered marks with the United States Patent and
Trademark Office ("USPTO") - one for FIGHT SPORTS
and the other for FIGHT SPORTS NETWORK - the trademarks at
issue in this matter. (ECF No. 75 at 3.) CSI registered FIGHT
SPORTS NETWORK with the USPTO on January 10, 2006, and
registered FIGHT SPORTS with the USPTO on June 11, 2006. (ECF
No. 75 at 3.)
defendants are Canadian companies, with principal places of
business in Toronto, Canada, and offer a "24/7"
fight-related content channel called FIGHT
NETWORK. (ECF No. 75 at 3, 4, 6-7.) When CSI became
aware that the defendants' predecessor company, Fight
Media, was using THE FIGHT NETWORK mark in Canada, it sent a
cease and desist letter to the company on March 21, 2007.
(ECF No. 75 at 6.) Fight Media responded on April 13, 2007,
claiming that the marks were generic and denying
infringement, and that unless it heard "to the
contrary" from CSI, it would consider the matter
"settled to CSI's satisfaction." (ECF No. 75 at
6.) CSI never responded to this letter. (ECF No. 75 at 6.)
Anthem later acquired Fight Media in 2011. (ECF No. 75 at 3.)
time later, in June of 2014, CSI learned of the
defendants' entry into the U.S. markets when the
defendants launched their 24/7 FIGHT NETWORK channel. (ECF
No. 75 at 7.) Thereafter, the defendants tried and failed to
register its mark, FIGHT NETWORK, with the USPTO; the USPTO
rejected the application in part because the defendants'
mark was similar to CSI's registered marks. (ECF No. 75
at 7.) CSI commenced this action on June 16, 2015 and
requested a preliminary injunction to enjoin the defendants
from using the FIGHT NETWORK mark during this litigation.
(ECF No. 75 at 7.)
Reyes held a four-day preliminary injunction hearing
beginning on November 3, 2015. (ECF No. 83 at 3.) During the
hearing, CSI called six witnesses to testify about the use of
CSI's marks, CSI's business model, and CSI's
industry reputation. (ECF No. 75 at 2.) The defendants called
four witnesses to testify about the generic nature and use of
CSI's marks, the defendants' presence in the market,
and the defendants' reputation in the industry. (ECF No.
75 at 2.)
December 30, 2016 Judge Reyes issued an R&R denying the
plaintiffs request for a preliminary injunction. On March 10,
2017, the plaintiff submitted its objections to Judge
Reyes' R&R, to which the defendants responded on
April 7, 2017. (EFC No. 80; ECF No. 83.) Subsequently, on
June 23, 2017, CSI moved this Court to supplement its
objections to the R&R, and the defendants responded on
June 26, 2017.
reasons set forth below, I adopt Judge Reyes' R&R in
considering a magistrate judge's report and
recommendation, the district court judge "may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge."
magistrate judge makes a recommendation that is dispositive
of a party's claim, the district judge must review de
novo any part of the magistrate judge's decision to
which a party properly objects. Fed.R.Civ.P. 72(b)(3). The
court may adopt any sections of the magistrate's report
to which a party did not object, as long as the
magistrate's decision was not "facially
erroneous." Markey v. Lapolla Indus., Inc., No.
12-cv-4622-JS-AKT, 2016 WL 324968, at *3 (E.D.N.Y.Jan. 26,
2016) (citation omitted). Motions for preliminary injunctions
are considered dispositive motions. See, e.g., Mitchell
v. Century 21 Rustic Realty, 233 F.Supp.2d 418, 430
(E.D.N.Y.), aff'd. 45 F.App'x 59 (2d Cir. 2002).
party does not object to a conclusion in the magistrate
judge's report, the argument is waived, and will not be
reviewed. See, e.g., Johnson v. Woods, 426
F.App'x 10, 11 (2d Cir. ...