Aereo Loses Bid for TRO in AERO Trademark Infringement Lawsuit

March 20, 2013, by Mandour & Associates, APC

Los Angeles – Aereo, Inc. lost its bid for a temporary restraining order against Alki David and his Internet television service FilmOn.com, Inc. that would have prohibited David and the company from using the name Aero or the domain name Aero.tv until the trademark infringement lawsuit is over.

U.S. District Judge Audrey B. Collins of the Central District of California in Los Angeles denied Aereo’s ex parte application for the temporary restraining order in chambers without prejudice and without commenting on her decision.

In its bid for the temporary restraining order, Aereo claimed that FilmOn was intentionally using a similar domain name in order to profit off Aereo’s brand and claimed that it would be irreparably harmed if FilmOn were allowed to continue with its $100 million advertising campaign to promote the streaming services provided by Aero.tv.

New York-based Aereo said that FilmOn’s “actions infringe Aereo’s trademark rights and are intended to and likely to mislead the public into believing that ‘Aero’ is associated with Aereo.  The goodwill Aereo has developed will be permanently damaged by defendant’s uncontrolled use of its name, and the damage to plaintiff increases daily.”

Los Angeles-based FilmOn argued that a temporary restraining order was a drastic request.  FilmOn said that it has been using the AERO trademark in commerce in the United States since January 2011 and the trademark registered in early 2012, while Aereo only launched in February 2012.

FilmOn also argued that Aereo was unable to meet the burden of proof necessary for such an extreme request on an ex parte basis, claiming that Aereo’s assumption that it would be irreparably harmed by FilmOn’s use of the AERO trademark is misplaced and does not satisfy the legal requirements for obtaining a temporary restraining order.

Aereo filed the lawsuit in Los Angeles on March 6th as a response to FilmOn’s lawsuit seeking a declaratory judgment that FilmOn had rights to the AERO trademark.  Aereo’s complaint alleged that FilmOn deliberately chose a confusingly similar name for its online television service in order to benefit from the good will associated with the Aereo name.

The lawsuit is just another legal battle between David and Aereo backer Barry Driller.  A U.S. federal judge previously prohibited David from using BarryDriller.com and Aereokiller LLC to market rival online television services.