PepperBall Bullet Maker Loses Bid to Renew TRO

SAN FRANCISCO (CN) - The maker of PepperBall projectiles can't renew an Indiana restraining order in a San Francisco trademark case against the same competitor, a federal judge ruled.

United Tactical Systems renewed a trademark infringement action against Real Action Paintball and its CEO, K.T. Tran, after acquiring Advanced Tactical Ordnance Systems this past summer. Previously, ATO had sued Real Action in federal court in Indiana over its trademarked PepperBall bullets that look like paintballs, but are made of plastic instead of gelatin and contain an irritant powder instead of paint - claiming its rival was selling similar pellets on its own website.

The allegedly nonlethal PepperBall projectiles are used mostly by the military, law enforcement and private security firms, according to United Tactical's complaint.

ATO won its bid to halt Real Action's sales of the projectiles in the Indiana court, but the 7th Circuit ruled earlier this year that an interactive website occasionally selling items to Indiana customers did not establish the Indiana court's jurisdiction in the case.

Meanwhile, after United Tactical bought ATO and its proprietary work, including the PepperBall brand, the company filed suit last month in San Francisco federal court to "preserve the injunctive relief ATO already obtained" from the Indiana court, according to the complaint.

But U.S. Magistrate Judge Maria-Elena James said Monday that "very few" circumstances justify issuing a temporary restraining order without Real Action being able to have its say in the matter, or ex parte, according to precedent set by both the Supreme Court and the 9th Circuit.

"Here, while plaintiff has filed affidavits and evidence in support of its motion, plaintiff has failed to 'clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition,' as required for the issuance of an ex parte temporary restraining order," James wrote. "Accordingly, because plaintiff has not shown immediacy of harm, plaintiff has not shown good cause to be excused from the notice requirement."

Only two situations would allow an immediate ban outside the normal flow of court proceedings, James said: if the defendant's identity or location was unknown, or if allowing the defendant to weigh in would be pointless to the case. She added that neither case applies here.

"Plaintiff has been aware of the alleged infringing activities since at least 2012 and knew of the Indiana court's decision, but did not immediately seek leave to file the present motion at the time it filed its complaint," James said.

Instead, the judge said she will treat United Tactical's request as a motion for a preliminary injunction and gave Real Action until Oct. 16 to file its opposition.

A hearing on the sales ban is slated for Nov. 6.

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