In my Book (www.abanet.org/abastore/index.cfm) I lay out various categories of what constitutes irreparable harm, which is paramount in demonstrating the need for injunctive relief. In Amaretto Ranch Breedables, LLC v. Ozimals, Inc. (case no. CV 10 5696, (N.D. Cal.)) the Plaintiff's allegations and arguments regarding its risk of irreparable harm were innovative.
Amaretto and Ozimals are in the business of creating and selling animated, virtual digital breedable animals and products, including virtual food, in their virtual stores. On December 1, 2010, Ozimals filed a take-down notice with Amaretto's internet provider under the Digital Millennium Copy Act ("DMCA"), in accordance with 17 USC 512, claiming that Amaretto's Horse Product Line infringes with and is a clone of Ozimals' virtual bunny.
Despite providing a Counter DMCA Notification, Amaretto feared that its service provider was about to take down its virtual animals and product line. Thus, Amaretto filed a Motion for an ex-parte TRO. Amaretto argued that it would be irreparably harmed if it was not able to sell its horse product line, especially during the Holiday Season, and that the Company's business and reputation would be destroyed. In particular, Amaretto argued that depriving its customers of products for even a short time would have disastrous results, as the virtual horses, which were sold to many customers, would die if not fed virtual food.
The Court granted the Motion and agreed that Amaretto would suffer a loss of goodwill and reputation harm if its products were taken down, especially during the prime buying season.
Our next posts will consider the implications of this ruling.
