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«IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION GLOBAL ARCHERY PRODUCTS, INC. ) ) Plaintiff, ) Civil ...»

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USDC IN/ND case 1:15-cv-00297-JVB-SLC document 23 filed 02/10/16 page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

GLOBAL ARCHERY PRODUCTS, INC. )

)

Plaintiff, ) Civil Action No.: 1:15-cv-297-JVB-SLC ) v. ) JURY TRIAL DEMANDED ) JORDAN GWYTHER d/b/a ) LARPING.ORG and UPSHOT ARROWS, ) ) Defendant. )

MOTION FOR TEMPORARY RESTRAINING

ORDER, PRELIMINARY INJUNCTION AND HEARING

Pursuant to Rule 65 of the Federal Rules of Civil Procedure and N.D. Ind. L.R. 65-1, Plaintiff Global Archery Products, Inc. (“Global”), by counsel, moves the Court for the entry of a temporary restraining order as well as a preliminary injunction and order, enjoining Defendant Jordan Gwyther d/b/a Larping.Org and Upshot Arrows (“Gwyther”), its respective officer, directors, principals, agents, servants, employees, successor and assigns, and all of those in active concert and participation with Gwyther, and each of them who receives notice directly or

otherwise of such injunctive relief to:

(1) Cease issuing any press releases, advertisements, letters, promotional materials, articles, and oral or other written statements including posts on social media sites such as Gofundme, YouTube, Facebook, and Twitter, that falsely, misleadingly, or deceptively associate or otherwise imply that this action was initiated and is being prosecuted to interfere with the general public’s ability to engage in live action role playing (“LARP”);

(2) Cease issuing any press releases, advertisements, letters, promotional materials, articles, and oral or other written statements including posts on social media sites such as 1 USDC IN/ND case 1:15-cv-00297-JVB-SLC document 23 filed 02/10/16 page 2 of 5 Gofundme, YouTube, Facebook, and Twitter, that falsely, misleadingly, or deceptively associate or otherwise imply that this action was initiated and is being prosecuted to interfere with the general public’s ability to engage in LARP archery;

(3) Cease issuing any press releases, advertisements, letters, promotional materials, articles, and oral or other written statements including posts on social media sites such as Gofundme, YouTube, Facebook, and Twitter, that falsely, misleadingly, or deceptively associate or otherwise imply that this action was initiated and is being prosecuted to assert patent rights as to any and all foam tipped arrows;

(4) Cease issuing any press releases, advertisements, letters, promotional materials, articles, and oral or other written statements including posts on social media sites such as Gofundme, YouTube, Facebook, and Twitter, that falsely, misleadingly, or deceptively associate or otherwise use the registered trademark “Archery Tag®”;

(5) Cease issuing any press releases, advertisements, letters, promotional materials, articles, or oral or other written statements including posts on social media sites such as Gofundme, YouTube, Facebook, and Twitter, that make false or misleading description or representation of fact with respect to Global, Global’s products and/or the instant lawsuit;

(6) Cease from otherwise engaging in false advertising or deceptive trade practices with respect to Global or Global’s products;

(7) Requiring Gwyther to identify and recall from any third party any and all copies of press releases, advertisements, promotional materials, and other written statements including posts on social media sites complained of in Global’s brief in support of this motion for injunctive relief;

(8) Requiring Gwyther to issue corrective press releases, advertisements, letters,

–  –  –

promotional materials, articles, posts on social media sites and e-mails to all individuals who received the false and misleading materials complained of in Global’s brief in support of this motion;

(9) Return all funds collected from the general public; and (10) File with the Court and serve upon Global’s counsel within fifteen (15) days after issuance of a preliminary injunction a written report filed under oath setting forth in detail the manner and form in which Gwyther has complied with the injunction.

The entry of a temporary restraining order and preliminary injunction against Gwyther is necessary to prevent Global from continuing to be irreparably harmed by Gwyther’s false misleading and deceptive trade practices. Gwyther has used its false, misleading and deceptive press releases, advertisements, and posts on social media sites in interstate commerce to unfairly compete in the marketplace with Global with the intent and goal of diverting sales of Global's products to Gwyther as well harming the reputation of Global so as to lower such repudiation in the estimation of the community and to deter third persons from associating or dealing with Global. These facts and evidence, which fully support Global's request for injunctive relief, are set forth more fully in Global's Brief In Support Of Its Motion for a Preliminary Injunction, in the pleadings on file herein, and by the exhibits thereto.

Global respectfully requests this Court to schedule a prompt hearing on this matter.





This is not an ex parte request. Global has provided notice to Gwyther’s counsel of this motion.

–  –  –

The undersigned hereby certifies that a true and correct copy of the foregoing was electronically filed on this 10th day of February 2016, by way of the Court’s electronic filing system, and that a copy of this filing will be sent to all counsel of record via the Court’s electronic filing system.

–  –  –

PLAINTIFF GLOBAL ARCHERY PRODUCTS, INC.’S

BRIEF IN SUPPORT OF ITS MOTION FOR TEMPORARY

RESTRAINING ORDER, PRELIMINARY INJUNCTION AND HEARING

Pursuant to Rule 65 of the Federal Rules of Civil Procedure and N.D. Ind. L.R. 65-1, Plaintiff Global Archery Products, Inc. (“Global”), by counsel and in support of its motion for the entry of a temporary restraining order as well as a preliminary injunction and order against Defendant Jordan Gwyther d/b/a Larping.Org and Upshot Arrows (“Gwyther”) shows the Court

as follows:

–  –  –

Whether a temporary restraining order and preliminary injunction should issue enjoining Gwyther from further committing acts of unfair competition by disseminating press releases, advertisements, and social media postings that falsely, misleadingly, and deceptively misstates the nature and extent of this pending action so that Gwyther can obtain a pecuniary benefit and further damage the goodwill associated with Global and its ARCHERY TAG® products?

–  –  –

Gwyther has misused and misrepresented to the public Global’s complaint in this action to create the false and misleading impression that Global is attempting to assert and protect

–  –  –

intellectual property rights far in excess of those at issue in this action. By doing so, Gwyther has deliberately mislead consumers regarding the nature and scope of this action which has resulted in irreparable damage to Global. For this reason, Global seeks a temporary restraining order and preliminary injunction preventing Gwyther from continuing this reckless behavior.

Specifically, on February 8, 2016, Gwyther created a “gofundme” page and posted a YouTube video that creates the false impression in the market place that (a) Global was attempting to interfere with the public’s ability to engage in a recreational activity known as Live Action Role Playing (“LARP”)1; (b) Global was attempting to interfere with the public’s ability to engage in a recreational activity known as LARP archery; and (c) Global was attempting to assert a patent as to all foam tipped arrows. To perpetuate this false and misleading impression, Gwyther used Global’s registered trademark ARCHERY TAG®. Gwyther’s conduct has created havoc and confusion in the marketplace for Global, disrupting Global’s business and unfairly competing with Global. This was not an “accident” or an “innocent” mistake, but rather, was a calculated maneuver done by Gwyther to unfairly damage Global’s reputation, divert sales of Global’s products to Gwyther and to dupe the general public into funding Gwyther’s defense of this action.

A temporary restraining order and preliminary injunction is the proper remedy to prevent Gwyther from causing further harm to Global and from otherwise unfairly competing with Global. Every day that Gwyther is allowed to continue this course of conduct and without corrective actions, causes the harm done to Global to grow, in the form of lost sales, damaged customer relations, and loss of goodwill.

1 LARP is defined as “At it’s simplest you could say that larping is a continuation of a table-top roleplaying game that people choose to act out by becoming a character and staging a fantasy world experience in which their character lives.” www.larping.org/larp-definition/

–  –  –

Global is the owner of two U.S. Patents (U.S. Patent No. 8,449,413 and U.S. Patent No.

8,932,159) (the “Patents”). See Exhibit A, Declaration of John Jackson (“Jackson Declaration”), Paragraph 2. The Patents generally relate to specific forms of a non-lethal arrow that is used in activities marketed and promoted by Global and its authorized licensees under the ARCHERY TAG® trademarks. Id. Global is the owner of U.S. Trademark Registrations No. 4,208,868 and No. 4,208,868 for the ARCHERY TAG® (the “Trademarks”). ARCHERY TAG® is a game which is similar to dodgeball but is played using archery bows and non-lethal foam-tipped arrows covered by the Patents. Id.

Gwyther is selling and offering for sale in the United States products it refers to as the “Crossbow Bolt”, “Flat Tip Larp Arrow”, “Glow in the Dark Larp Arrow”, and “Round Tip Larp Arrow” (collectively referred to hereinafter as the “Gwyther’s Arrows”). See Complaint [Doc. 1] at paragraph 10 at p. 4. See Defendant’s Answer to Complaint and Affirmative Defenses (“Answer”) [Doc.11] at paragraph 10.

Gwyther has also used the ARCHERY TAG® trademark:

 Advertising for Gwyther’s Arrows. Complaint at paragraph 11 and Exhibit F;

 As paid key words with one or more search engines such as, by way of example, Google.

Id. at paragraph 12; and  On Amazon.com to market and promote competing sets of ARCHERY TAG® equipment.

Id. at paragraph 13;

Gwyther is not authorized or licensed to use the ARCHER TAG® trademarks. Jackson Declaration at 5. This action was initiated enforce the Patents as well as the ARCHERY TAG® trademarks. The Complaint sets forth nine counts – only two of which involve the Patents. The other seven counts are predicated on Gwyther’s misuse and misappropriation of the ARCHERY TAG® trademarks, his false advertising, and his tortious interference with Global’s business

–  –  –

relationships. Thus, only 22.2% of the original action involves the patents, yet Gwyther falsely and misleading omits the other issues in this case in the YouTube video.

On February 8, 2016, Gwyther created a “gofundme” page which solicited funds from the general public purportedly to aid in his legal defense of this action. To induce the general public

to donate money to him (and make sales of his products), Gwyther stated, among other things:

 “The End of Larp Archery in North America”;

 “I’m reaching out to you today with something that has the potential to ruin larp in North America as we know it, specifically in regards to larp archery.” (emphasis added)  “Over the past few months I’ve become stuck in a legal battle with someone who claims to own the patent on foam tipped arrows, the kind we use in larp...” (emphasis added)  “Very few people in the larp community have a substantial income. I, myself, have a day job and sell these arrows (and other larp equipment) as a part time hobby which doesn’t generate a great deal of income. However, right now, the state of the entire larp hobby is at risk.” (emphasis added)  “I genuinely believe that this is one of the biggest threats to our hobby in recent times and I cannot defend this threat without your help.”  “In the complaint you will see many claims against me. Some of which are completely untrue, while others are "junk" that is trying to be passed off as breaking the law when in fact we have done nothing wrong.” (emphasis added).

A true and accurate copy of Gwyther’s gofundme page is attached hereton as Exhibit B.

(https://www.gofundme.com/savelarparchery). Gwyther also posted a video to YouTube (https://m.youtube.com/watch?v=_ey8qr492iY) in which Gwyther repeated the gofundme page representations. Each of the above-referenced statements are false and misleading.

Omitted from these representations, however, are the facts that:

 This action was also initiated to enforce the ARCHER TAG® trademarks and stop his false advertising;

 This action was also initiated to prohibit Gwyther from tortious interference with Global’s contractual and business relationships; and

–  –  –

 Gwyther has admitted receiving some $47,000.00 from his sale of Gwyther’s Arrows. See Gwyther’s Motion for Relief from Local Patent Rules, For Limited Discovery, and for a Show-Cause Hearing at paragraph 2 [Document 16).

As a result of Gwyther’s false, deceptive and misleading statements and omission of certain facts (herein “False Advertising”), Global has been inundated with hateful phone calls, emails, and posts on its social media sites. Some of the messages Global has received go so far as stating that they hope that people at Global are “brutally murdered.” Jackson Declaration at Group Exhibit 1 thereon. Gwyther, however, has now received over $3,000 from donations from

the general public with comments such as:

and See Exhibit B.



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