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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
`Proton Associates LLC, et al.,
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` Plaintiffs
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` v.
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`Avelo, Inc.,
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` Defendant
`
`Case No. 2:25-cv-00856-CDS-BNW
`
`Order Denying
`Defendant/Counterclaimant’s
`Motions for Preliminary Injunction
`and Temporary Restraining Order
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`
`[ECF Nos. 16, 17]
` Defendant/Counterclaimant Avelo, Inc., an airline company, moves for a temporary
`restraining order (TRO) (ECF No. 16) and for a preliminary injunction (ECF No. 17)1 seeking to
`enjoin and restrain plaintiffs/counterdefendants Seth Miller and Proton Associates LLC
`(hereinafter, “the plaintiffs”), from the following:
`(1) using the Avelo Marks and any confusingly similar variations thereof, alone or in
`combination with any letters, words, letter string, phrases or designs in commerce,
`including, without limitation, on any website, in any domain name confusingly
`similar to the Avelo Marks, in any social network username confusingly similar to the
`Avelo Marks, in any hidden website text, or in any website metatag;
`(2) engaging in false or misleading advertising or commercial activities likely to deceive
`consumers into believing that plaintiffs are Avelo or that any of the plaintiffs’ services
`are associated or affiliated with, connected to, approved by, or sponsored by Avelo;
`(3) displaying or affiliated with, connected to, approved by, or sponsored by Avelo; and
`(4) displaying or re-displaying the infringing billboards.
`
`1The temporary restraining order and preliminary injunction motions are identical. Because Avelo’s filings
`seek two forms of relief, it was correctly docketed as separate entries. See ECF No. 16; ECF No. 17. For
`efficiency, and because the standards for evaluating both motions are the same, I only cite to ECF No. 16
`herein. See Chandler v. Williams, 2010 WL 3394675, at *1 (D. Or. Aug. 26, 2010) (citing Stuhlbarg Intl’l Sales Co.,
`Inc. v. John D. Brush & Co., 240 F3d 832, 839 n.7 (9th Cir. 2001)) (discussing that the standard for issuing a
`preliminary injunction is “essentially identical” to the standard for issuing a temporary restraining
`order.).
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`Mot., ECF No. 16 at 1–2. Avelo also requests that Dynadot Inc. place the domain name on hold
`and lock, and further requests setting a briefing schedule and oral argument on their motion for
`preliminary injunction. Id. The plaintiffs oppose both motions, arguing that Avelo fails to
`acknowledge the correct legal framework for analyzing trademark infringement claims, and that
`Avelo fails to meet its burden showing it will suffer irreparable injury if its TRO and PI motions
`are not granted. See Opp’n, ECF Nos. 43 (TRO), 44 (PI). The motions are now fully briefed.
`Replies, ECF Nos. 48 (TRO), 51 (PI).
`2 For the reasons set forth herein, Avelo’s motions for a
`temporary restraining order and preliminary injunction are denied.
`I. Background3
`Defendant Avelo Airlines Incorporated is an airline that primarily operates low-cost
`passenger service between small regional airports. First am. compl., ECF No. 21 at ¶ 1. Plaintiff
`Proton Associates LLC is a limited-liability company. ECF No. 21 at ¶ 7. Proton does business as
`AvGeek Action Alliance, and plaintiff Seth Miller formed and partly owns Proton. Id. In April of
`2025, Avelo signed a contract with the U.S. Immigration and Customs Enforcement Agency to
`“support the Department’s deportation efforts.” Id. at ¶ 1.
`Avelo’s decision to support the government’s deportation efforts caused many people
`across the country to protest the airline. Id. at ¶ 2. Plaintiffs assert that Miller joined this effort
`by starting a campaign called the AvGeek Action Alliance, which urges travelers to choose
`airlines consistent with their political values. Id. at ¶ 3. Miller leased two billboards on the road
`to Avelo’s hub in New Haven, Connecticut, reading, “Does your vacation support their
`deportation? Just say AvelNO! Paid for by AvGeek Action Alliance – avelNO.com.” Id. The word
`
`2 In its reply, Avelo argues that Proton did not oppose the motions so it should it be granted as
`unopposed. ECF No. 51 at 2. I disagree. The conclusion of both motions asks for relief for both plaintiffs.
`See ECF No. 41 at 29 (“For the above reasons, Plaintiff Seth Miller and Proton Associates LLC respectfully
`request this Court [deny] Avelo’s requests for a temporary restraining order and preliminary
`injunction.”); ECF No. 44 at 29 (same).
`3 Unless otherwise noted, the court only cites to Proton’s first amended complaint (ECF No. 21) and
`Avelo’s answer to the amended complaint (ECF No. 37) to provide context to this action, not to indicate
`a finding of fact.
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`“AvelNO” in the ad is allegedly a parody of Avelo’s blue-text trademark, with the letter “N”
`inserted between the “L” and the “O” in red. Id. Plaintiffs assert that Miller’s purpose in buying
`the billboard was not to identify airline tickets for sale, but rather to criticize Avelo. Id.
`As a result of the billboards critical of Avelo that the plaintiffs paid to display in New
`Haven, Avelo sent cease-and-desist letters, claiming that the plaintiffs were infringing on Avelo’s
`intellectual property. See Am. Answer, ECF No. 37 at 15. The plaintiffs filed this lawsuit seeking
`declarations of non-infringement (Counts 1–3). See First am. compl., ECF No. 21.
`Avelo answered and responded with two counterclaims—a Lanham Act trademark
`infringement claim and an Anti-Cybersquatting Consumer Protection Act claim. See ECF No. 37.
`As to the first counterclaim, Avelo alleges that the <avelno.com> domain name is confusingly
`similar to Avelo’s federally registered AVELO trademark. ECF No. 37 at ¶ 26. Avelo alleges that
`the plaintiffs’ unauthorized use of the <avelno.com> domain name has caused, and is continuing
`to cause, consumers to be confused about the affiliation, connection, or association with Avelo.
`Id. at ¶ 28. Avelo argues that the plaintiffs’ disclaimers on their website are insufficient to dispel
`consumer confusion. Id. at ¶ 29.
` As to the second counterclaim, Avelo argues that they own federal trademark
`registrations for the Avelo Marks—including for the word AVELO. ECF No. 37 at ¶ 34. Avelo
`asserts that the Avelo word mark is used in connection with goods and services, and
`transportation services (transportation of persons by air and providing information in the field
`of airline transportation). Id.
` Avelo further argues that the plaintiffs are using the “AVELNO!” mark in commerce
`without Avelo’s consent in connection with the sale, offering for sale, distribution, and
`advertising of goods and services. ECF No. 37 at ¶ 36. Avelo argues that the plaintiffs use of
`“AVELNO!” is causing, and continues to cause, confusion and is intended to deceive. Id. Further,
`Avelo argues that the plaintiffs’ unauthorized use in commerce of “AVELNO!” on the infringing
`billboard, in the <avelno.com> domain name, and on the <avelno.com> and <avgeekaction.com>
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`websites, constitutes infringement of Avelo’s federally registered Avelo marks in violation of
`Section 32 of the Lanham Act, 15 U.S.C. § 1114. Id. at ¶ 37.
`II. Legal standard
`“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be
`granted unless the movant, by a clear showing, carries the burden of persuasion.’” Fraihat v. U.S.
`Immigr. & Customs Enf’t, 16 F.4th 613, 635 (9th Cir. 2021) (quoting Lopez v. Brewer, 680 F.3d 1068,
`1072 (9th Cir. 2012) (citations omitted)). The Supreme Court has explained that to obtain an
`injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely
`to suffer irreparable injury in the absence of preliminary relief, that the balance of equities tips in
`his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555
`U.S. 7, 24 (2008). The Ninth Circuit uses a “‘sliding scale’ approach to preliminary injunctions.”
`All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Under that approach, “‘serious
`questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff
`can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is
`a likelihood of irreparable injury and that the injunction is in the public interest.” Fraihat, 16
`F.4th at 636 (quoting All. for the Wild Rockies, 632 F.3d at 1135) (citation modified).
`A temporary restraining order may be issued upon a showing “that immediate and
`irreparable injury, loss, or damage will result to the movant before the adverse party can be
`heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). The purpose of such an order is to preserve the
`status quo and to prevent irreparable harm “just so long as is necessary to hold a hearing, and no
`longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439 (1974). In determining
`whether to issue a temporary restraining order, a court applies the factors that guide the
`evaluation of a request for preliminary injunctive relief: whether the moving party “is likely to
`succeed on the merits, . . . likely to suffer irreparable harm in the absence of preliminary relief, . . .
`the balance of equities tips in [its] favor, and . . . an injunction is in the public interest.” Winter,
`555 U.S. at 20 (citations omitted); see also Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832,
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`839 n.7 (9th Cir. 2001) (analysis for temporary restraining orders and preliminary injunctions
`“substantially identical”).
`III. Discussion
`While Avelo argues that this court should grant its motions because it met all the Winter
`factors, a closer review reveals that the crux of its motion asserts that it is suffering irreparable
`harm because of the plaintiffs’ actions. See ECF No. 16 at 10–22. Plaintiffs aver that Avelo offers
`no evidence that it is suffering irreparable injury and that Avelo has no likelihood of success on
`either of its counterclaims. See ECF No. 16 at 25–26. However, because likelihood of success on
`the merits is the most important Winter factor, see Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir.
`2015), I address that first.
`A. Likelihood of success on the merits.
`1. Lanham Act trademark infringement claim
`Avelo first argues that the plaintiffs have embarked upon an intentional campaign to
`damage Avelo’s business, reputation, and goodwill, by using Avelo’s own trademarks and trade
`dress by registering the <avelno.com> domain name to raise money for billboards, then
`contracting with Lamar Advertising to erect two billboards in the New Haven, Connecticut area
`to advertise the website. ECF No. 16 at 2. Avelo asserts that the plaintiff’s actions have crossed
`the line from any fair exercise of First Amendment rights into an unfair and commercial
`misappropriation of Avelo’s trademarks and brand identity, and unless enjoined from
`continuing, they will continue to suffer irreparable harm. Id. at 3.
` Avelo fails to show a likelihood of success on the merits for its trademark infringement
`claim. The Trademark Act of 1946 (“Lanham Act”) prohibits use of trademarks, trade names, and
`trade dress that are likely to cause confusion about the source of a product or service. Bosley Med.
`Inst., Inc v. Kremer, 403 F.3d 672, 676 (9th Cir. 2005) (citing 15 U.S.C. § 1114). To prevail on a claim
`of trademark infringement under the Lanham Act, a party must prove that (1) it has a protectible
`ownership interest in the mark; (2) the defendant used the mark “in connection with” goods or
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`services; and (3) the use of the mark is likely to cause consumer confusion. See LegalForce RAPC
`Worldwide, P.C. v. LegalForce, Inc., 124 F.4th 1122, 1125 (9th Cir. 2024); see also Network Automation, Inc.
`v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011).
`The plaintiffs do not contest that Avelo owns federal trademark registrations for the
`Avelo Marks, including, but not limited to Reg. No. 6,910,702 for the AVELO word mark, so the
`first element of a Lanham Act violation is met. But this is where the success of Avelo’s Lanham
`Act claim comes to an end. Avelo’s motion fails to substantively address the second element, that
`is, whether the plaintiffs used Avelo’s mark in connection to goods and services. The Supreme
`Court has long held that “trademark infringement law prevents only unauthorized uses of a
`trademark in connection with a commercial transaction in which the trademark is being used to
`confuse potential consumers.” Bosley Medical Institute, 403 F.3d at 676 (quoting Prestonettes, Inc. v.
`Coty, 264 U.S. 359, 368 (1924)). A “good” is a movable or tangible thing, and a “service” is a
`performance of labor for the benefit of another. See LegalForce RAPC Worldwide, P.C., 124 F.4th at
`1126. A “good” is not addressed in Avelo’s motion for obvious reasons, and its only argument is
`the plaintiffs’ “infringing billboards and <avelno.com> website” are providing information “in the
`field of airline passenger transportation.” ECF No. 16 at 14. This is unpersuasive and Avelo cites
`no points and authorities that would suggest their arguments would satisfy the second element
`of a Lanham Act violation. While the plaintiffs’ billboards contain the following language: “Does
`your vacation support their deportation? Just say avelNO!,” see ECF No. 37 at 14, this in no way
`constitutes providing a service to anyone or for anything. Avelo’s own counterclaim even
`recognizes that the website is a campaign, identifying it as the “AVELNO! campaign” that
`invites people to donate to the campaign if they would like. ECF No. 37 at 14–5. Because Avelo
`fails to establish the second element of the Lanham Act, it has failed to demonstrate a likelihood
`of success on the merits so the court stops its analysis of this counterclaim here.
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`4 The court notes that Avelo improperly raised a new argument for the first time in its reply, that is that it
`is likely to succeed on the merits of its trademark infringement claim because Miller is using “AvelNO!”
`in connection with Proton’s business. Reply, ECF No. 48 at 2. Because this is improper, the court does
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`2. Cybersquatting Consumer Protection Act Claim
`Avelo argues that the plaintiffs have violated the Anti-Cybersquatting Consumer
`Protection Act, 15 U.S.C. § 1125(d), by registering <avelno.com> with a bad faith intent to profit.
`The Ninth Circuit has explained that cybersquatting occurs
`[w]hen a person other than the trademark holder registers the domain name of a
`well known trademark and then attempts to profit from this by either ransoming
`the domain name back to the trademark holder or by using the domain name to
`divert business from the trademark holder to the domain name holder.
`Bosley Medical Institute, 403 F.3d at 680 (citations omitted). To prevail on an Anti-Cybersquatting
`Consumer Protection Act (ACPA) claim, a party must show (1) the defendant registered,
`trafficked in, or used a domain name; (2) the domain name is identical or confusingly similar to a
`protected mark owned by the plaintiff; and (3) the defendant acted “with bad faith intent to
`profit from that mark.” Yuga Labs, Inc. v. Ripps, 144 F.4th 1137, 1174 (9th Cir. 2025) (quoting Rearden
`LLC v. Rearden Com., Inc., 683 F.3d 1190, 1209 (9th Cir. 2012)). The “ACPA contains a safe harbor
`defense for registrants who ‘believed and had reasonable grounds to believe that the use of the
`domain name was a fair use or otherwise lawful.’” GoPets Ltd. v. Hise, 657 F.3d 1024, 1033 (9th Cir.
`2011) (citing 15 U.S.C. § 1125(d)(1)(B)(ii)).
`Avelo fails to demonstrate a likelihood of success on the merits of its cybersquatting
`counterclaim. Again, there is no dispute as to the first element: the plaintiffs have registered
`<avelno.com>. However, the plaintiffs’ opposition to the motion did not address the second
`element—that is, that the <avelno.com> is identical or confusingly similar to the protected mark.
`While the court has some doubts, I find that Avelo has established this element because the
`plaintiffs failed to address how the <avelno.com> mark is distinct to the protected mark.
`But Avelo fails to show that there was bad faith intent to profit on behalf of the plaintiffs.
`I do not disagree that the plaintiffs intended to divert consumers looking for the Avelo website,
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`not consider nor address this argument. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district
`court need not consider arguments raised for the first time in a reply brief.”).
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`and to direct them instead to the <avelno.com> website, by registering a domain name they knew
`was confusingly similar to the AVELO mark. ECF No. 16 at 19–20. Avelo fails to demonstrate
`however that the purpose behind creating the <avelno.com> website was to profit off Avelo or to
`divert business from Avelo to the plaintiffs, which if proven, would have demonstrated bad faith
`by the plaintiffs.
`Bad faith is an essential prerequisite to finding an ACPA violation. See Lahoti v. VeriCheck,
`Inc., 586 F.3d 1190, 1202 (9th Cir. 2009). Congress has enumerated nine nonexclusive factors a
`court may consider in determining bad faith. The “most important grounds for finding bad faith
`are the unique circumstances of the case.” Id. I considered the following relevant factors:
`(V) the person’s intent to divert consumers from the mark owner’s online location
`to a site accessible under the domain name that could harm the goodwill
`represented by the mark, either for commercial gain or with the intent to tarnish
`or disparage the mark, by creating a likelihood of confusion as to the source,
`sponsorship, affiliation, or endorsement of the site; and
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`(VI) the person’s offer to transfer, sell, or otherwise assign the domain name to the
`mark owner or any third party for financial gain without having used, or having an
`intent to use, the domain name in the bona fide offering of any goods or services, or
`the person’s prior conduct indicating a pattern of such conduct.
`15 U.S.C. § 1125(d)(1)(B).
`The plaintiffs argue that “Miller has not, and does not intend to, profit from the website
`or any other part of his AvelNO campaign. Every dollar [Miller] raised went to or will go to
`renting billboards and other advertising to criticize Avelo.” ECF No. 21 at ¶ 24. Indeed, there is
`no evidence that the plaintiffs created the website to obtain a profit from Avelo. Lahoti, 586 F.3d
`at 1202–03 (plaintiff showed bad faith intent by having customers click on links which
`redirected customers to the defendant’s competitors and by offering to sell the domain name to
`the defendant for $72,500). While the website does invite visitors to make donations, the
`invitation to make a donation negates an intent to profit, an express requirement to violate the
`ACPA. 15 U.S.C. § 1125(d)(1)(A)(i) (an alleged cybersquatter must have an “intent to profit”).
`Avelo cites no case law that supports its contention that a billboard that invites people to visit a
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`website that in turn invites its visitors to make a donation to the plaintiffs equates to obtaining
`a profit from potential Avelo customers.5 Super-Krete Int’l, Inc. v. Sadleir, 712 F. Supp. 2d 1023, 1033
`(C.D. Cal. 2010) (finding bad faith where “Defendants only interest in the domain name is to
`divert customers who may have been searching for Plaintiff’s mark to their own commercial
`website”). Moreover, the purpose of <avelno.com> was not to direct domain visitors to book
`travel; rather, it was to provide information regarding Avelo’s alleged assistance to ICE by
`providing deportation flights, which minimizes the risk of confusion. See GoPets, 657 F.3d at 1033
`(finding that “it is clear that [the domain registrant] intended the Additional Domains ‘to divert
`consumers from the mark owner’s online location to a site accessible under [these] domain
`name[s] . . . by creating a likelihood of confusion’”). Consequently, Avelo fails to demonstrate
`success on the merits on its ACPA claim.
`3. Avelo also fails to demonstrate irreparable harm or that there are serious
`questions going to the merits.
`The second requirement for injunctive relief is that the plaintiff is likely to suffer
`irreparable harm in the absence of preliminary relief. See Rodriguez v. Robbins, 715 F.3d 1127, 1133
`(9th Cir. 2013) (citing Winter). But because likelihood of success is a threshold inquiry, which
`Avelo fails to meet here, I need not consider the remaining three Winter elements. Garcia, 786 F.3d
`at 740; see also Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir.
`2013) (quoting DISH Network Corp. v. FCC, 653 F.3d 771, 776–77 (9th Cir. 2011)).6 Accordingly,
`Avelo’s motions are denied.
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`5 Because I find Avelo fails to establish this element, I need not address whether the ACPA safe harbor
`provision applies.
`6 And because Avelo fails to demonstrate success on the merits as to its Lanham Act claim, the
`presumption in favor of irreparable harm no longer exists. See 15 U.S.C. § 1116(a).
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`IV. Conclusion
`IT IS HEREBY ORDERED that defendant/counterclaimant Avelo’s motions for
`preliminary injunction and temporary restraining order [ECF Nos. 16, 17] are DENIED.
` D ated: September 24, 2025
`
` ___________________ _____________
` Cristina D. Silva
` United States District Judge
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