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LINK SNACKS, INC.,



v.

JOHN DOES 1-100










Plaintiff,

Defendants.

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CASE 0:13-cv-00604-JNE-JSM Document 5 Filed 03/20/13 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA


Court File No. 13-cv-00604-JNE-JSM





MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR

EXPEDITED DISCOVERY

INTRODUCTION

Plaintiff Link Snacks, Inc. (“Link Snacks”) moves for an Order to exempt Plaintiff

from compliance with the meet and confer requirements of Fed. R. Civ. P. 26(d) and

26(f) in order to conduct limited expedited discovery related to obtaining the true identity

of the John Doe defendants alleged to infringe in the Complaint. Defendants promote,

offer, and sell fake coupons via eBay.com and other online locations related to Link

Snack’s meat snack products sold under the trademark JACK LINK’S. Consumers

purchase the fake coupons thinking that the coupons are legitimate and that they will be

able to redeem them at retail stores for Link Snacks’ products. The coupons, however,

are not legitimate. As a result, Defendants’ actions are causing immediate and continued

harm to the customers who pay for the fake coupons and are unable to redeem them.

Further, Link Snacks is harmed through the loss of goodwill to the customers. Moreover,

CASE 0:13-cv-00604-JNE-JSM Document 5 Filed 03/20/13 Page 2 of 9

Link Snacks has been damaged by retail stores accepting the payments, resulting in

thousands of dollars of reimbursements for fake coupons.

Link Snacks did extensive investigation to learn the true source of the products,

including sending notifications to the sellers of the fake coupons. Link Snacks also

submitted notices of claimed infringement with eBay to remove the infringing postings.

Despite those efforts, the fake coupons continue to be posted on eBay.com. Link Snacks

continues to work with eBay to determine the names of the individuals. However, Link

Snacks has not been able to determine the source of the fake coupons.

In order to identify and effect proper service on the appropriate defendants and to

seek preliminary relief, limited discovery is necessary. The discovery is needed on an

expedited basis to prevent the continued harm to the public and Link Snacks. Link

Snacks requests the opportunity to conduct limited discovery of serving a subpoena on

eBay, Inc. to determine the true identity of those individuals and entities who have sold

the infringing and fake coupons.

PROCEDURAL POSTURE AND FACTUAL BACKGROUND

I.

Limited Expedited Discovery Is Necessary to Determine the Identity of the
Alleged Infringers.

Under Federal Rule of Civil Procedure 26(d), the parties may not seek discovery

from any source prior to the 26(f) Conference. In compliance with the Rules, Link

Snacks has not yet served discovery. In order to determine the true identity of all the

defendants and the source of the infringing products, however, Link Snacks requests that

the Court allow it to subpoena eBay, Inc., the platform where many of the products are



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CASE 0:13-cv-00604-JNE-JSM Document 5 Filed 03/20/13 Page 3 of 9

being sold, to provide the name, address, and contact information regarding the fake

coupon sellers.

A. Link Snacks Owns the JACK LINK’S Brand of Meat Snacks Products.

Link Snacks is the owner of the JACK LINK’S® brand of meat snack products.

(Dkt. No. 1, ¶¶ 12-14.) Link Snacks has used its JACK LINK’S mark and variations of

that mark since at least as early as 1985 in connection with the sale of its products. (Id. at

¶ 12.) Link Snacks’ JACK LINK’S logo is displayed below:

(Id. at ¶ 13.)



Link Snacks has expended a substantial amount of money and effort in advertising

and promoting the JACK LINK’S mark. (Id. at ¶ 16.) Link Snacks and its JACK

LINK’S mark are well known and consumers have come to know, rely upon, and

recognize the JACK LINK’S mark as identifying Link Snacks’ meat snack products. (Id.

at ¶ 17.) As a result of Link Snacks’ substantial promotional, advertising, publicity, and

public relations activities, the JACK LINK’S mark has acquired substantial goodwill and

is an extremely valuable commercial asset. (Id.)





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CASE 0:13-cv-00604-JNE-JSM Document 5 Filed 03/20/13 Page 4 of 9

B. Defendants Have Engaged in a Scheme to Infringe on the JACK LINK’S

Mark and Cause Harm to the Consuming Public.


Defendants are using the JACK LINK’S mark in connection with marketing and

sale of fake coupons via online stores such as eBay.com. (Dkt. No. 1, ¶ 21-23.)

Defendants prominently use the JACK LINK’S mark in connection with the fake

coupons. An example of the fake coupon is displayed below:



(Id. at ¶ 21.) The coupon is similar to a coupon Link Snacks offered in 2009 that has

long since been discontinued. Defendants have copied the coupon and offered fake

coupons for sale under the guise as official coupons. (Id. at ¶ 24.) These coupons,

however, are not legitimate. Upon investigation, the fake coupons are printed on a

different stock of paper and have a shiny or glossy sheen. Additionally, the paper is not

consistent throughout, showing that the printing on the front is a copy as opposed to a

legitimate copy. Defendants’ conduct constitutes counterfeiting.

As a result of Defendants’ use of the JACK LINK’S mark in association with their

fake coupons, consumers have purchased the coupons thinking they were legitimate

coupons and have attempted to redeem them for JACK LINK’S brand meat snacks.

Based on the significant quantity of fake coupons, Link Snacks has instructed stores to



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CASE 0:13-cv-00604-JNE-JSM Document 5 Filed 03/20/13 Page 5 of 9

cease accepting the fake coupons. Defendants’ actions are likely to cause consumers to

pay money for coupons they thought were legitimate. (Id. at ¶ 24.) Further, Defendants’

actions reflect negatively on Link Snacks, who is blamed for not accepting the coupons.



C. Defendants Operate in a Cloud of Secrecy.

Defendants operate in secrecy to offer to sell, promote, and sell fake coupons.

(Dkt. No. 1, ¶ 4.) Defendants offer products via eBay using user names. By selling the

products via eBay under a user name, Defendants are able to hide their true identity. For

example, one of the listings was sold by “hauser0_60” as shown below:

The listing does not provide information regarding the seller’s name, address, or other

contact information. All of the Defendants offer products via eBay using a user name,

which does not provide the actual contact information. Link Snacks continues to work

with eBay to identify the sellers. However, based on the continued selling, Link Snacks



requests expedited discovery as set forth herein.



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CASE 0:13-cv-00604-JNE-JSM Document 5 Filed 03/20/13 Page 6 of 9

ARGUMENT

I.

LINK SNACKS SHOULD BE PERMITTED TO TAKE LIMITED
EXPEDITED DISCOVERY TO IDENTIFY THE JOHN DOE
DEFENDANTS.

Pursuant to Rule 26 of the Federal Rules of Civil Procedure, no party may seek



formal discovery until the parties have met and conferred, except by court order. Fed. R.

Civ. P. 26(d). Limited discovery is appropriate and necessary in this case to establish the

true identity of the source of the infringing products. Moreover, the discovery is

particularly appropriate here where the defendants’ continued conduct harms the public,

making preliminary relief appropriate.

A. Good Cause for Limited Expedited Discovery is Established because

that Discovery is Necessary to Identify the Identity of the Source of the
Infringing Products.


Limited discovery prior to the Rule 26(f) conference is appropriate to determine

the true identity of the defendant in the case. See Antioch Co. v. Scrapbook Borders, Inc.,

210 F.R.D. 645, 651 (D. Minn. 2002); See First Nat'l of Neb., Inc. v. Does 1-5, 2006 U.S.

Dist. LEXIS 53881, *2 (D. Neb. July 26, 2006) (granting leave to conduct limited

discovery and suspending meet and confer requirement of Rule 26(f)); see also Fed. R.

Civ. P. 26(d) Advisory Committee note (1993 and 2000) (recognizing the courts’

discretion to order discovery prior to the Rule 26(f) conference).

Limited discovery prior to the Rule 26(f) conference is necessary in this case to

determine the true identity of the source of the fake Jack Link’s coupons sold via eBay

and to confirm the number and amount of sales. Because the sellers need only operate

under an eBay user name, their true identities are hidden. eBay likely has the name,



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CASE 0:13-cv-00604-JNE-JSM Document 5 Filed 03/20/13 Page 7 of 9

address, and other contact information of the sellers. eBay also is likely to have

information regarding the products sold by each of the Defendants to confirm the

illegitimacy of the coupons. At this point, however, Link Snacks does not know the scope

of infringement. First, the user name does not provide adequate contact information.

Second, the seller information is maintained as public for only 90 days. Link Snacks

needs discovery to determine the eBay user account and identification information for

each seller who has sold fake Jack Link’s coupons.

B.

Good Cause is Established based on the Ongoing Harm to the Public.


“Good cause” for expedited discovery exists when discovery is necessary to

develop the facts related to preliminary injunctive relief. Onan Corp. v. United States,

476 F. Supp. 428, 430, 434 (D. Minn. 1979) (granting plaintiff’s motion for expedited

discovery “so it can better present its factual case to the court.”); Edudata Corp. v.

Scientific Computers, Inc., 599 F. Supp. 1084, 1088 (D. Minn. 1984) (holding further

development of the record before the preliminary injunction hearing will better enable the

court to judge the parties’ interests and respective chances for success on the merits), aff’d

in part, rev’d in part on other grounds, 746 F.2d 429 (8th Cir. 1984).

Despite Link Snacks’ efforts to stop the continued infringement via enforcement

requests to eBay, Defendants continue to sell the fake coupons. (Dkt. No. 1, ¶ 26.) The

continued sale of the fake coupons harms Link Snacks and its goodwill associated with its

JACK LINK’S brand. Moreover, Defendants continue to charge consumers for coupons

that are not legitimate and may not be accepted at retail locations. In turn, Defendants’

conduct harms Link Snacks’ goodwill associated with its products and trademarks.



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CASE 0:13-cv-00604-JNE-JSM Document 5 Filed 03/20/13 Page 8 of 9

The expedited discovery is necessary to determine the identity of the source in

order to shut down the sale of products that infringe Link Snacks’ rights and to prevent

the continued consumer harm. Link Snacks’ need to obtain discovery promptly

outweighs any potential burden or prejudice to the Defendants.

C.

Expedited Discovery will be Limited to Identifying the Source of the
Products.


Link Snacks’ discovery will be limited to determining the identity of the

individuals and identifying the scope of the fake coupons sold via eBay. Link Snacks

proposes to serve 5 document requests as part of the subpoena to eBay. A copy of the

proposed requests is attached as Exhibit A.

In order to eliminate any issues regarding confidentiality, Link Snacks requests

that the Court enter the standard protective order, Form 5. A copy of Form 5 with

modifications for this case is attached as Exhibit B.

CONCLUSION



Plaintiff Link Snacks respectfully requests the right to take expedited discovery

from third party eBay.com in order to identify the true identity of the source of the

infringing and fake coupons sold via eBay. Link Snacks also requests that the Court

enter the standard protective order, Form 5.











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CASE 0:13-cv-00604-JNE-JSM Document 5 Filed 03/20/13 Page 9 of 9

Dated: March 20, 2013



By: s/ William D. Schultz



Scott W. Johnston (MN# 247558)
William D. Schultz (MN# 323482)

3200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402-2215
Telephone: (612) 332-5300
Facsimile: (612) 332-9081

[email protected]
[email protected]


Attorneys for Plaintiff Link Snacks, Inc.



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