From Everytown for Gun Safety Action Fund v. Defcad, decided today by Judges Pierre Leval, Barrington Parker & Steven Menashi:
Plaintiff-Appellee Everytown for Gun Safety Action Fund … is the "largest gun violence prevention organization in the United States." … The anonymous defendants have uploaded downloadable files for 3-D printing firearms to Defcad.com, Odysee.com, and thegatalog.com. Pertinent to this appeal, the anonymous defendants have uploaded files bearing Everytown's name, which contain instructions for how to 3-D print gun parts and accessories bearing Everytown marks.
On October 22, 2021, Everytown filed suit against Defcad, Inc. … and the anonymous defendants … [alleging]: (1) federal trademark infringement under 15 U.S.C. § 1114; (2) false designation of origin and unfair competition under 15 U.S.C. § 1125(a); (3) trademark infringement and unfair competition under New York common law; and (4) dilution of the Everytown marks under N.Y. Gen. Bus. L. § 360-L. The defendants contend that the use of Everytown's marks was a parody and therefore non-infringing.
That same day, Everytown applied to the district court for expedited discovery to learn the identities of the anonymous defendants, alternative service, and an order to show cause for why a preliminary injunction should not be entered.
On November 5, the district court granted Everytown's application and entered an order to show cause for why a preliminary injunction should not be issued. The district court further ordered that Defcad, Odysee, Inc., Twitter, and "any third-party service provider" shall "provide to Everytown … expedited discovery, including copies of all documents and records in such party's possession or control relating to … the true identities and addresses of Defendants." Defcad [and the anonymous defendants] moved to stay the order, … [arguing that], "[t]he expedited discovery seeks to immediately unmask parties who have a First Amendment right to engage in anonymous speech."
The district court denied the motion for a stay. The district court held that Defcad lacks standing to assert the First Amendment rights of the anonymous defendants and, in the alternative, that the "objection to the discovery order would fail on the merits." According to the district court, "[a]lthough the Supreme Court has acknowledged that the First Amendment provides some protection for anonymous speech, parties may not use the First Amendment to encroach upon the intellectual property rights of others." Holding that "Plaintiff cannot effectively litigate its claims without obtaining the identities of the infringing parties," the district court denied Defcad's motion for a stay.
