UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`Those Characters From Cleveland, LLC,
`Plaintiff,
`-against-
`The individuals, corporations, limited liability
`companies, partnerships, and unincorporated
`associations identified on Schedule A,
`Defendants.
`
`26-CV-2444 (AS)
`
`ORDER
`ARUN SUBRAMANIAN, United States District Judge:
`Plaintiff’s renewed application for a tempor ary restraining order is DENIED WITHOUT
`PREJUDICE. The renewed application fails to addre ss the deficiencies in the prior application,
`but the Court will afford plaintiff one more chance.
`As an initial matter, the Court notes that plaintiff does not appear to be the owner of some
`of the trademarks and copyrights at issue in the motion. (Some are owned by “Those Characters
`From Cleveland, Inc.”, and others by “American Greeting Co.”). That woul d be fatal to some of
`the claims, but the Court need not determine which, since the claims would not prevail on the
`merits in any event, at least as presented in the current application.
`Turning to the merits, the Court first addresses the dilution claim added by plaintiff in the
`amended complaint. As plaintiff acknowledges, the fame of a mark is a necessary requirement for
`a federal dilution claim. Plaintiff cites to no evidence that the mark is famous, instead citing only
`allegations in the amended complaint. But preliminary injunctive relief, unlike filing a complaint,
`requires evidence, not just allegations. See Stern v. Highland Lake Homeowners , 2021 WL
`1164718, at *5 (S.D.N.Y. Mar. 26, 2021) (“On a motion for preliminary injunction, it has always
`been the rule that the movant bears the burden of persuasion to establish the situation meets the
`standard for a preliminary injunction, and must offer proof beyond the unverified allegations of
`the pleadings.” (cleaned up)). As plaintiff has failed to make even the barest evidentiary showing
`on a necessary element of the dilution claim, the mo tion fails as to the dilu tion claim. If plaintiff
`has any evidentiary support, the Court will reconsider the motion as to this claim.
`Next, plaintiff has failed to sufficiently address the potential fair use and First Amendment
`claims related to the products in question that use “Don’t Care Bears” (or a variation) along with
`marijuana imagery. Plaintiff relies heav ily on the Supreme Court’s decision in Jack Daniel’s
`Props., Inc. v. VIP Prods. LLC , 599 U.S. 140 (2023). There, the S upreme Court rejected a First
`Amendment defense to a dog toy that had the same shape and design as a bottle of Jack Daniel’s
`whiskey. Id. at 144. But key to the Court’s holding was th e fact that “the accused infringer ha[d]
`used a trademark to designate the source of its own goods—in other words, ha[d] used a trademark
`as a trademark.” Id. at 145. The Court made clear that its opinion was “narrow” and its
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`infringement holding only covered cases “when the challenged use of a mark is as a mark.” Id. at
`163. That’s not the case here. The “Don’t Care Bears” defendants are not using the Care Bears
`marks as marks; unlike in Jack Daniels, for the most part, the products don’t look like the products
`that plaintiff sells. They don’t even use bears resembling Care Bears—some have teddy bears with
`bows, others have bears a- la the main character of Corduroy, still others have non-Care-Bears-
`looking bears that appear to have eaten too many Cheetos. For these, defendants seem to just be
`using “Care” and “Bear” as part of a phrase. So Jack Daniels is inapposite.
`The other cases cited by plaintiff fa re no better. Plaintiff first cites Cliffs Notes, Inc. v.
`Bantam Doubleday Dell Publishing Group, Inc. , 886 F.2d 490, 494-95 (2d Cir. 1989), for the
`proposition that “merely using someone else[’s] trademark to promote your message is not
`parody.” Dkt. 24 at 10. True enough , but that doesn’t prove that using someone else’s trademark
`cannot be parody—or even that it isn’t in this case. Plai ntiff next cites Dr. Seuss Enters., L.P. v.
`Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), and Louis Vuitton Malletier S.A. v. My
`Other Bag, Inc., 156 F. Supp. 3d 425 (S.D.N.Y. 2016), aff’d, 868 F.3d 172 (2d Cir. 2017). Those
`cases stand for the proposition that parody must target the mark in some way, not just society as a
`whole. (A parody can extend beyond the mark in que stion, so long as it doe s target the mark in
`some way.) Plaintiff says in conclusory fashion (with no citation to any evidence) that defendants
`are using plaintiff’s marks sole ly as “cultural comment ary.” Dkt. 24 at 10. But the Court cannot
`conclude on the record before it that there is no commentary on plaintiff’s marks at all; the products
`could be seen as parodying the ch ildren’s cartoon characters as marijuana-smoking bears. After
`all, plaintiff itself points out how “marijuana-related imagery” contrasts with the “child focused”
`characters that epitomize “fri endship, caring, and positivity.” Id. at 7. So the trademark
`infringement claims fail as well.
`To be clear, the Court does not conclude definitively whether defendants would prevail on
`a fair use or First Amendment defense across the board. On a fuller record, plaintiff may well be
`correct that it is entitled to relief on its trademark infringement claims. But it has not met its burden
`for preliminary relief.
`Finally, the Court addresses the copyright infringement claims. In the Court’s prior order,
`the Court noted that plaintiff had failed to rebut the argument that the products could have subject
`to a prior authorized sale—w hich would mean any subseque nt sale would not need any
`authorization. Plaintiff devotes only a few sentences to trying to rebut this potential defense, most
`of which are conclusory attorn ey argument devoid of any citati on. The only sentence with any
`alleged link to any evidence says that “Plaintiff has repeatedly reviewed its evidence and none of
`the products shown are authorized; none originate from Plaintiff.” Dkt. 24 at 15. But the evidence
`it cites—several paragraphs in a declaration—does not support that point. Most of the cited
`paragraphs are on irrelevant points. The closest the declaration gets to rebutting the defense is
`saying that “[n]one of the Defenda nts shown in Exhibit 3 has author ization or license to use the
`CARE BEARS IP for any purpose.” Dkt. 25 ¶ 19. But even assuming the single conclusory
`statement in the declaration was enough to carry plaintiff’s evidentiary burden, the Court noted in
`the prior order that no authorization would be required if there was a prio r sale, and plaintiff has
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`put forward absolutely no evidence explaining why the Court could conclude on the current record
`that there was no prior sale.1
`Plaintiff must show why it can conclude from the website that th e products cannot be
`resales. For example, if there is evidence that a particular product was never sold with the copyright
`owner’s permission in any countr y, then there might be grounds to conclude that it cannot be
`legitimate. But such an argumen t must be individualized and tie to specific products, not the
`blanket arguments that plaintiff has made.
`Plaintiff may reapply for a temporary restraining order within 14 days. On any
`reapplication, plaintiff should bot h narrow its request to products that it can clearly show are
`infringing and make specific arguments as to each product listed, rather than summary arguments
`that do not directly reference a ny individual product. It should al so ensure that any asserted
`copyrights and trademarks belong to it, rather than third parties not before the Court.
`In narrowing its request, plaintiff should not include the products in its current application
`where there is only a trademark claim but no copyr ight claim. These products include the phrase
`“Don’t Care Bear” with a bear that does not look like a Care B ear. The Court concludes that
`plaintiff has not shown that it would likely succeed on its claim that a consumer would be confused
`since these products clearly use a b ear that is not a Care Bear. Pl aintiff should also consider the
`merits of each other clai m by itself—focusing on claims strong enough to justify ex parte relief
`and addressing the merits of each individually.
`The motion to seal is GRANTED IN PART. W ithin seven days of this order, plaintiff
`should file a redacted version of all sealed e xhibits from both motions on the public docket. Any
`information pertinent to defendants where the on ly claim is trademark infringement should be
`unredacted in line with the Cour t’s views above on the merits of those claims. Information
`pertinent to other claims may be redacted. The Court will unseal all documents in 30 days absent
`justification from plaintiff for any extension.
`The Court’s repeated rejection of plaintiff’s applications is not intended to be punitive. The
`Court realizes that many courts simply rubber stamp these applications to get them off their docket.
`But the relief plaintiff seeks is significant and ex parte. Under these circumstances, it’s important
`to enforce the rules and standards that apply to the granting of this kind of extraordinary relief.
`The Clerk of Court is respectfully directed to terminate the motions at Dkts. 23 and 34.
`SO ORDERED.
`Dated: April 22, 2026
`New York, New York ARUN SUBRAMANIAN
`United States District Judge
`
`1 Plaintiff’s initial interest confusion argument under trademark fails for a similar reason. Dkt. 24 at 4–5.
`If the product was the subject of a prior, authorized sale, any use of plaintiff’s marks to describe a resale
`would be referring to plaintiff’s products and would clearly be permitted.
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