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White Hall Pharmacy LLC v. Doctor's RX Inc.

United States District Court, E.D. Arkansas, Western Division

August 20, 2019

WHITE HALL PHARMACY LLC d/b/a DOCTOR'S ORDERS d/b/a DOCTOR'S ORDERS PHARMACY PLAINTIFF
v.
DOCTOR'S ORDERS RX INC, et al. DEFENDANTS

          PRELIMINARY INJUNCTION ORDER

          KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE

         Before the Court is plaintiff White Hall Pharmacy LLC d/b/a Doctor's Orders d/b/a Doctor's Orders Pharmacy's (“White Hall Pharmacy”)[1] emergency motion for preliminary injunction (Dkt. No. 2). White Hall Pharmacy seeks injunctive relief against defendants Doctor's Orders RX Inc., Doctors Orders of Garland County LLC d/b/a Arkannabis d/b/a Arkannabis Extracts d/b/a Arkannabis Farms, and Don Sears. White Hall Pharmacy has filed a notice of voluntary dismissal against separate defendant Doctor's Orders of Garland County LLC (Dkt. No. 25). Separate defendants Doctor's Orders RX Inc. and Mr. Sears have responded in opposition to the emergency motion for preliminary injunction (Dkt. No. 29). For the reasons discussed below, on the record currently before it, the Court grants in part White Hall Pharmacy's emergency motion for preliminary injunction (Dkt. No. 2).

         Additionally, the Court finds that White Hall Pharmacy's notice of voluntary dismissal accords with the terms of Federal Rule of Civil Procedure 41(a)(1)(A)(i). The Court therefore dismisses without prejudice separate defendant Doctor's Orders of Garland County LLC. Accordingly, to the extent the Court in this Order refers to “defendants, ” the Court is referring only to Doctor's Orders RX Inc. and Mr. Sears.

         I. Procedural Posture

         White Hall Pharmacy filed its complaint and emergency motion for preliminary injunction on May 22, 2019 (Dkt. Nos. 1, 2). White Hall Pharmacy then filed an emergency motion for temporary restraining order (Dkt. No. 16). On June 5, 2019, the Court held a telephonic hearing with the parties on the emergency motion for temporary restraining order, and on June 10, 2019, the Court entered an order denying the emergency motion for temporary restraining order (Dkt. No. 26). The Court then held an evidentiary hearing on the emergency motion for preliminary injunction on June 14, 2019 (Dkt. Nos. 32, 33). For the following reasons, the Court now grants in part White Hall Pharmacy's emergency motion for preliminary injunction (Dkt. No. 2).

         II. Findings Of Fact

         The following facts are taken from the affidavits and exhibits in the record and the testimony presented to the Court at the hearing on the emergency motion for preliminary injunction.

         Lelan Stice testified at the preliminary injunction hearing, and his affidavit is part of the record. Mr. Stice is the owner and chief operating officer of White Hall Pharmacy, which operates two pharmacies in the Pine Bluff, Arkansas, metropolitan area (Pl. Ex. 7, ¶ 2).[2] White Hall Pharmacy has existed since 2009 and has continually operated always under the fictitious trade names “Doctor's Orders” or “Doctor's Orders Pharmacy.” (Id., ¶ 3). The second location was opened in May 2013 (Dkt. No. 33, at 9). At no time since White Hall Pharmacy was formed has it held itself out to the public as “White Hall Pharmacy” or any derivative of that name (Pl. Ex. 7, ¶ 4). Rather, the public only knows it as “Doctor's Orders” or “Doctor's Orders Pharmacy.” (Id.).

         White Hall Pharmacy recorded the name “Doctor's Orders” with the Arkansas Secretary of State when it registered in 2009 (Pl. Ex. 7, ¶ 5). A screenshot of the Arkansas Secretary of State's website reflects this registration (Pl. Ex. 1). Its pharmacies are licensed with the Arkansas State Board of Pharmacy as “Doctor's Orders Pharmacy” and “Doctor's Orders Pharmacy #2.” (Pl. Ex. 7, ¶ 6). White Hall Pharmacy is licensed with the Federal Drug Enforcement Agency (“DEA”) under the name “Doctor's Orders Pharmacy.” (Id., ¶ 7).

         Mr. Stice testified that the name of the pharmacy and the logo it uses have “stayed virtually the same” since the first pharmacy opened (Dkt. No. 33, at 6). In its advertising, White Hall Pharmacy routinely uses a combination of the words “Doctor's, ” “Orders, ” “Pharmacy, ” “Rx, ” and “RX” and has continually used this advertising strategy since 2009 without any break in time (Pl. Ex. 7, ¶ 8). White Hall Pharmacy's logo and advertising use red font, a red logo, and a white backsplash (Id., ¶ 9). A screenshot of a website attached to the complaint shows the domain name “www.doctorsorderspharmacy.com” with a header that says “doctor's orders” in lower-case letters and “PHARMACY” in all upper-case letters (Pl. Ex. 2). Those words are written in red font with a white backsplash (Id.). Furthermore, next to the header is a logo that says “RX” with white and red coloring (Id.). The record evidence contains a photo of a vehicle with the same language, logo, and color scheme (Pl. Ex. 3). The record evidence also contains a photo of a building with the same language, logo, and color scheme (Pl. Ex. 4).

         Mr. Stice avers that no other pharmacy in Arkansas uses a similar “Doctor's Orders” terminology (Pl. Ex. 7, ¶ 10). Mr. Stice stated that he believes confusion has arisen due to “the trade name, the colors of the logo, [and] the website . . . .” (Dkt. No. 33, at 25). Further, White Hall Pharmacy has filed for federal and state trademarks for its trade names in connection with pharmacy and medicinal operations (Pl. Ex. 7, ¶ 27; Pl. Ex. 13).

         Mr. Stice testified that he has “spent quite a bit of time joining community service organizations” in the Pine Bluff area (Dkt. No. 33, at 6). Mr. Stice is also a member of the Arkansas Pharmacy Association and the Arkansas Association of Health System Pharmacists (Id., at 8). White Hall Pharmacy sponsors community events in the Pine Bluff area, including the “Go Forward Fest” and the “King Cotton Classic.” (Id., at 9-10). Mr. Stice testified that White Hall Pharmacy advertises on billboards (Id., at 10). White Hall Pharmacy has a website and a mobile application, according to Mr. Stice (Dkt. No. 33, at 10). Mr. Stice further testified that White Hall Pharmacy “pushe[s] ads to the entire state of Arkansas on Facebook” and that its “web page reaches worldwide.” (Id.). Mr. Stice also worked with the Arkansas General Assembly and the Arkansas Pharmacy Association regarding “prescription benefit managers.” (Id.). White Hall Pharmacy's Facebook page was used in that effort (Id., at 11). Mr. Stice testified that the website has “over 40, 000 hits, 45, 000 plus hits on one single ad that went out” and that other ads hit 25, 000 to 28, 000. (Dkt. No. 33, at 11).

         Mr. Stice is not a member of the Lions Club or Rotary Club in Hot Springs nor does he advertise in a local paper in Hot Springs (Id., at 27). Mr. Stice also conceded that he does not recall any sponsorship requests arising from Hot Springs (Id., at 28).

         Mr. Stice testified that White Hall Pharmacy has approximately 12, 000 total patients (Id., at 21). He further testified that White Hall Pharmacy “fill[s] prescriptions for patients all over the state [of Arkansas] . . . .” (Dkt. No. 33, at 11). He explained that White Hall Pharmacy mails prescriptions “outside of the state . . . .” (Id.). Mr. Stice noted that White Hall Pharmacy has sent prescriptions to “[a] little over 130 cities total” and that “[a]bout 12 of those are out-of-state cities.” (Id.). He conceded that “[n]ot many” of his customers who live in Little Rock drive down to Pine Bluff to use his pharmacy (Id., at 22). Mr. Stice further testified that White Hall Pharmacy has “about 20 to 30” customers who reside in the Hot Springs, Arkansas, area (Id., at 12). He stated that some of these customers are “mail order, ” while others “drive back and forth.” (Id., at 22). He also stated that White Hall Pharmacy has approximately 150 customers who have second homes in the Hot Springs area (Dkt. No. 33, at 12). Of the approximately 20 to 30 customers who currently live in Hot Springs, Mr. Stice testified that “[p]robably five” of them lived in Hot Springs when they began using White Hall Pharmacy (Id., at 29). Mr. Stice conceded that, from his records, he could obtain the number of customers White Hall Pharmacy has outside of Jefferson County, Arkansas (Id., at 22).

         Mr. Stice further asserts that White Hall Pharmacy learned that defendants are individually or jointly operating a medical marijuana dispensary in Garland County, Arkansas, using the name “Doctors Orders, ” “Doctor's Orders Pharmacy, ” and “Doctors Orders RX.” (Pl. Ex. 7, ¶ 11). At the time this action was filed, defendants operated one of the only two medical marijuana dispensaries in Arkansas (Id., ¶ 13). Mr. Stice stated that defendants' medical marijuana dispensary is “roughly one hour away from [his] business's pharmacies.” (Id., ¶ 14).

         Once the dispensary opened, Mr. Stice “started seeing posts on Facebook asking . . . kind of are we involved in it, asking for directions to the store.” (Dkt. No. 33, at 13). Mr. Stice then “put a post out that [White Hall Pharmacy is] in no way affiliated with the medical marijuana dispensary.” (Id.). According to Mr. Stice, he posted on Facebook around “20 or 30 times” during the first day (Id.). Mr. Stice also explained that “we had people check in at the pharmacy, and we started getting phone calls.” (Id.). Specifically, Mr. Stice stated that he received around 60 phone calls “[i]n the first few days” and that the pharmacies have received “probably closer to a hundred phone calls . . . since then.” (Dkt. No. 33, at 14). Mr. Stice noted that his pharmacies normally receive “about a hundred phone calls per pharmacy” a day for the prescription business (Id., at 23). He did note that the phone calls relating to medical marijuana are “more time-consuming, ” and those calls end once the caller realizes that White Hall Pharmacy is not a medical marijuana dispensary (Id., at 23-24).

         Mr. Stice testified that one of his employees asked him if he was in the medical marijuana business (Id.). Mr. Stice is also the director of pharmacy at the Jefferson Regional Medical Center, and he notified the CEO, the CFO, the chief nursing officer, and the controller at the hospital that his pharmacy was not involved with the medical marijuana dispensary (Dkt. No. 33, at 15). Additionally, many of the employees at that hospital have asked Mr. Stice if he is involved with the dispensary. Mr. Stice testified that a city councilman also asked him if he was involved with the dispensary (Id.). Mr. Stice related an incident where a reporter asked him if he was involved with the dispensary, and he has been asked about the dispensary “multiple times” at the country club (Id., at 16). Mr. Stice testified that his staff have told him that “three to four people” have shown up at his pharmacies trying to purchase marijuana (Id.). His banker, Mr. Lambert, also asked him about his affiliation with the dispensary (Dkt. No. 33, at 16).

         Mr. Stice further testified that “every news station, local news station, contacted me, along with the Arkansas Democrat-Gazette and the Pine Bluff Commercial.” (Id., at 17). He has had inquiries about his affiliation with the dispensary from “multiple physicians in the community.” (Id.). Also, at the Arkansas Pharmacists Association meeting he attended, he “was asked at almost every break by different people, ” including a couple from Louisiana, whether he was involved with the dispensary (Id.).

         In addition, Mr. Stice explained that his concern is that “approximately half of my patients might be concerned with the moral aspects of marijuana and therefore thinking that I'm associated with the program . . . .” (Dkt. No. 33, at 13). He also testified that approximately “20 to 30 percent” of his customers are professionals, including physicians, pharmacists, doctors, attorneys, and bankers (Id., at 20). Mr. Stice noted about “at least 5 or 10 percent of that group” has inquired about his affiliation with the dispensary (Id.). Mr. Stice stated that “it would be difficult for us to know” if customers were transferring to other pharmacies due to confusion about his affiliation with defendants' medical marijuana dispensary (Id., at 13). Mr. Stice also noted that he has not seen an immediate change in his revenues, though he notes that revenue in the pharmacy business is “delayed 60 to 90 days . . . .” (Dkt. No. 33, at 19). He also stated that “[n]o one said they were going to no longer use my pharmacy once I clarified the issue they wanted to know.” (Id., at 26).

         Mr. Stice maintains that defendants' operation uses signs and advertising that contain red letters and a white backsplash similar in appearance to White Hall Pharmacy's signs and advertising (Pl. Ex. 7, ¶ 12). The record contains a photograph of a sign that reads: “DOCTOR'S ORDERS” in upper-case letters (Pl. Ex. 8). The letters of this sign are written in red, and the background of the sign is white (Id.). Additionally, a screenshot of Google Maps shows a picture of this same sign and the words “Doctor's Orders” located at 4897 Malvern Rd., Hot Springs, Arkansas (Pl. Ex. 9). A screenshot of a satellite image from Google Maps shows a pin with the phrase “Doctor's Orders” by the pin (Id.). The Google Maps screenshot includes a thumbnail image of the sign described in Plaintiff's Exhibit 8 (Id.).

         The record evidence also contains screenshots from “www.drsordersrx.com, ” which includes the text “Doctor's Orders” and the address “4897 Malvern Ave Hot Springs, Arkansas 71901.” (Pl. Ex. 18). The website includes a logo in the shape of the state of Arkansas in white, with the following script: “DOCTOR'S ORDERS.” (Id.). The background of the website is dark green (Id.). The record evidence also contains screenshots from a website called “weedmaps.com.” (Pl. Ex. 19). These screenshots show a miniature version of the same logo that is found on “www.drsordersrx.com” and state that the address of the dispensary is “4897 Malvern Ave Hot Springs, Arkansas 71901.” (Id.). The website also includes an “Introduction” that states:

Doctor's Orders is the first medical marijuana dispensary to open in the State of Arkansas! We are located on Malvern Ave. in Hot Springs, AR. You will need your medical marijuana card to enter our facility. Our wait times are at a minimum and we are able to get our patients in and out quickly. We look forward to meeting new customers & seeing our returning customers in the days and weeks to come. We apologize for any inconvience [sic] in our first few days of operation. We are working diligently to make it feel less like a prison inside (thank you state of Arkansas). Come to Doctor's Orders and see our softer side:) We truly appreciate your business.

(Id.).

         Mr. Sears has presented an affidavit to the Court (Defs. Ex. 1). In his affidavit, Mr. Sears states that he is the sole owner of “Doctor's Orders RX, Inc.” and that he incorporated that entity with the Arkansas Secretary of State on May 26, 2017 (Id., ¶¶ 1-2). He further states that, at the time he filed his incorporation papers on May 26, 2017, he had “never heard of Doctor's Orders Pharmacy.” (Id., ¶ 6). He applied with the Arkansas Marijuana Commission d/b/a Doctor's Orders RX, Inc., for a medical marijuana dispensary permit in Garland County, Arkansas, and his application was ultimately approved (Id., ¶ 4). He states that his dispensary business actually opened for business on May 10, 2019 (Id.).

         He admits that he did not know about Doctor's Orders Pharmacy prior to receiving a cease and desist letter on May 14, 2019 (Id.). Mr. Sears further avers that he had “no knowledge of marks, symbols, colors or other advertising material which might have been used by Doctor's Orders Pharmacy in Pine Bluff.” (Id., ¶ 7).

         Mr. Sears also states that he has “not done any advertising of [his] business, Doctor's Orders RX, Inc. and ha[s] never used any marks, symbols, color combinations or other advertising material as described by Doctor's Orders Pharmacy in their complaint . . . .” (Defs. Ex. 1, ¶ 7). He says that, as of the time of his filing, his business has been in operation less than three weeks and that he has “not done any type of advertising or business promotion which might lead the public to think [his] business has any connection or association with Doctor's Orders Pharmacy in Pine Bluff.” (Id., ¶ 8).

         The record evidence includes multiple articles published on the internet discussing defendants' medical marijuana dispensary (Pl. Ex. 11). Some of the articles refer to the medical marijuana dispensary as “Doctors Orders RX.” (Id., at 1, 3, 6, 9, 12, 19). Alternatively, such articles also refer to the dispensary as “Doctor's Orders.” (Id., at 4, 7, 9, 10, 15, 19).

         White Hall Pharmacy also presents the affidavit of Jeremy Lambert, a customer of White Hall Pharmacy (Pl. Ex. 10). Mr. Lambert testified at the preliminary injunction hearing. Mr. Lambert avers that he learned that a medical marijuana dispensary named “Doctor's Orders” was open in Hot Springs, Arkansas (Id., ¶ 5). He also saw a post on Facebook stating the same information (Id.). In his testimony, Mr. Lambert testified that he learned about the dispensary from a customer who was in his office, and he also explained that he told the customer he “would assume it's incorrect” that the dispensary was affiliated with Mr. Stice (Dkt. No. 33, at 40). He then confirmed that there was no affiliation with Mr. Stice (Id.). In his affidavit, Mr. Lambert avers that he was confused about the medical marijuana dispensary's affiliation with White Hall Pharmacy (Id., ¶ 6). Mr. Lambert testified that he was asked about the medical marijuana dispensary by three customers and “two to three employees” who worked with him (Dkt. No. 33, at 40). Mr. Lambert also avers that “5 other business owners and customers in Pine Bluff [have] ask[ed] me why Doctor's Orders Pharmacy would open a medical marijuana dispensary.” (Id., ¶ 8). Mr. Lambert claims that he “truly believe[s] this has damaged the reputation of [ ] Doctor's Orders Pharmacy.” (Id.). Mr. Lambert admits that he has not talked to people outside of Pine Bluff about this (Dkt. No. 33, at 42).

         The record includes evidence that White Hall Pharmacy has been contacted regarding medicinal marijuana. A text message was sent to Mr. Stice in which the sender stated: “I am trying to get information on possible job openings. I have over 25 years['] experience and I am taking online classes at cannabis training university for my masters. I would love the opportunity.” (Pl. Ex. 14).

         The record also contains the affidavit of Leigh Cockrum, a resident of Pine Bluff who has “known this pharmacy for many years, ” though she concedes that she is not a customer of White Hall Pharmacy (Pl. Ex. 15, ¶¶ 2, 5). Ms. Cockrum avers that she learned that a medical marijuana dispensary named “Doctor's Orders” was opening in Hot Springs, Arkansas, and that she was confused about its affiliation with Mr. Stice (Id., ¶¶ 5-6). Ms. Cockrum further avers that she “was surprised to hear that Lelan Stice was going to sell marijuana in Hot Springs.” (Id., ¶ 7). She stated that “[i]t was a common belief in Pine Bluff that this dispensary was somehow affiliated with White[]Hall Pharmacy or Lelan Stice . . . .” (Id., ¶ 9). Finally, she states that “[m]any people in central Arkansas still believe that Whitehall Pharmacy or Lelan Stice is affiliated with the medi[c]al marijuana dispensary.” (Id., ¶ 10).

         The affidavit of Aaron Spencer, an employee of White Hall Pharmacy, is also a part of the record evidence. He avers that, since defendants' medical marijuana dispensary opened, he has “received a large volume of calls at work from individuals asking about purchasing marijuana.” (Pl. Ex. 16, ¶ 6). He states that one individual “asked if he and his friend could camp outside of our business in order to be one of the first individuals to purchase marijuana the next day.” (Id., ¶ 7). He also states that, “[f]or a while after the dispensary opened, I fielded on average 8 to 9 calls a day from individuals who wished to purchase marijuana.” (Id., ¶ 8). He further states that “[w]ithin the past week, I had a phone conversation at work with one individual who called our pharmacy and wanted to purchase marijuana.” (Id., ¶ 9). Additionally, many of White Hall Pharmacy's regular customers have asked if White Hall Pharmacy is “affiliate[d] with the marijuana dispensary, ” as have members of Mr. Spencer's church (Pl. Ex. 16, ¶¶ 10, 11).

         The affidavit of Win Trafford is also a part of the record evidence (Pl. Ex. 17). Mr. Trafford states that he is a customer of White Hall Pharmacy and that he was confused about the affiliation between defendants' medical marijuana dispensary and White Hall Pharmacy (Id., ¶¶ 3, 7). He also states that “[i]t was common belief in Pine Bluff that this dispensary was somehow affiliated with White[]Hall Pharmacy.” (Id., ¶ 10). He further avers that he has “had many people in central Arkansas casually ask me about [Mr. Stice's] involvement in the Hot Springs dispensary.” (Id., ¶ 11).

         Donna Ansley testified at the preliminary injunction hearing. She has known the Stices for the last 20 years and has had several family members use White Hall Pharmacy's services (Dkt. No. 33, at 31). Ms. Ansley lives in Benton, Arkansas (Id., at 30). She testified that she learned about the medical marijuana dispensary through the morning news and that she initially thought Mr. Stice was affiliated with it (Id., at 32). She testified that she was confused by the name of the dispensary (Id.). Ms. Ansley also testified about the reach of White Hall Pharmacy; she noted that her sister, who lives in Rison, Arkansas, uses White Hall Pharmacy's services (Dkt. No. 33, at 32). Ms. Ansley explained that she continues to use, and has not quit using, White Hall Pharmacy's services (Id., at 34).

         Sarah Stevenson testified at the preliminary injunction hearing. She works at White Hall Pharmacy's White Hall, Arkansas, location (Id., at 35). She testified that, while working there, she received phone calls from individuals looking to purchase medical marijuana (Id., at 36). She testified that the phone calls would end once she told the callers that White Hall Pharmacy does not offer medicinal marijuana (Id.). She stated that she “got about half a dozen [calls] that day that I worked the first week.” (Dkt. No. 33, at 36). She also stated that, on a certain day, she believes that her store received “probably at least a dozen” phone calls like this (Id., at 37). She testified that, in the days that followed, White Hall Pharmacy continued to receive phone calls “[j]ust not as many.” (Id.). She further testified that, while she personally has not encountered someone coming to White Hall Pharmacy to purchase marijuana, she has “heard that they have.” (Id.). She did note that a former employee came to White Hall Pharmacy and asked “if we were associated with the marijuana . . . .” (Dkt. No. 33, at 38).

         Mr. Stice further states that White Hall Pharmacy is prevented by federal regulations from possessing or dispensing Schedule I drugs (Pl. Ex. 7, ¶ 21). Mr. Stice testified that marijuana is a Schedule I drug and that there is potential for the DEA “to want to do an investigation to see if a DEA registrant is involved in the sale or processing of Schedule 1 substances.” (Dkt. No. 33, at 19-20).

         White Hall Pharmacy sent a letter to defendants on May 13, 2019, demanding that defendants cease and desist operating under the names “Doctors Orders Rx Inc.” or “Doctors Orders Pharmacy.” (Pl. Ex. 5). Mr. Sears and Doctor's Orders RX, Inc., responded via letter, arguing that Mr. Sears has a superior claim for the name “Doctor's Orders RX.” (Pl. Ex. 6).

         III. Subject Matter Jurisdiction

         Defendants raise the issue of whether this Court has subject matter jurisdiction (Dkt. No. 29, at 3-4). Defendants contend that “neither party is engaged in interstate commerce, a vital test required for relief under the Lanham Act.” (Id.). White Hall Pharmacy responds to this argument and maintains that both White Hall Pharmacy and defendants are engaged in commerce that crosses state lines, thereby establishing this Court's subject matter jurisdiction (Dkt. No. 35, at 24-25).

         At this stage of the litigation, the Court is satisfied that it has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338; further, the Court has supplemental jurisdiction over White Hall Pharmacy's state-law claims pursuant to 28 U.S.C. § 1367 because those claims are so related to the federal claims that they form part of the same case or controversy. White Hall Pharmacy brings five claims against defendants: (1) false or misleading advertising in violation of the Lanham Act 15 U.S.C. § 1125(a); (2) false or misleading endorsements in violation of 15 U.S.C. § 1125(a); (3) misappropriation of trademark; (4) tortious interference with business expectancy; and (5) unjust enrichment (Dkt. No. 1, ¶¶ 34-122). The Supreme Court has determined that Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), “protects qualifying unregistered trademarks and that the general principles qualifying a mark for registration under [section] 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under [section] 43(a).” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992) (citations omitted).

         The Court determines that the interstate commerce requirement-which 15 U.S.C. § 1125(a) incorporates-is met here. The Lanham Act defines interstate commerce as “all commerce which may lawfully be regulated by Congress.” 15 U.S.C. § 1127. The Tenth Circuit Court of Appeals has held that “the jurisdiction of the Lanham Act constitutionally extends to unauthorized uses of trademarks on the Internet.” Utah Lighthouse Ministry v. Found. for Apologetic Information and Research, 527 F.3d 1045, 1054 (10th Cir. 2008). Other courts have determined the same; “[i]n the computer and Internet context, courts have consistently held that providing information over the Internet satisfies the commerce requirement of the Lanham Act.” Savannah College of Art and Design, Inc. v. Houeix, 369 F.Supp.2d 929, 942 (S.D. Ohio 2004) (quoting Cable News Network, L.P., L.L.L.P. v. CNNews.com, 177 F.Supp.2d 506, 517-18 n.25 (E.D. Va. 2001)).

         In Planned Parenthood Federation of America, Inc. v. Bucci, No. 97 Civ. 0629, 1997 WL 133313, at *3 (S.D.N.Y. Mar. 24, 1997), aff'd, 152 F.3d 920 (2d Cir. 1998), the district court concluded that the Lanham Act's jurisdictional requirement was met because “defendant's actions affect plaintiff's ability to offer plaintiff's services, which, as health and information services offered in forty-eight states and over the Internet, are surely ‘in commerce.'” Second, the court held that “even assuming, arguendo, that defendant's activities are not in interstate commerce for Lanham Act purposes, the effect of those activities on plaintiff's interstate commerce activities would place defendant within the reach of the Lanham Act.” Id. Third, the court held that “establishing a typical home page on the Internet, for access to all users, would satisfy the Lanham Act's ‘in commerce' requirement.” Id.

         Here, there is record evidence that both White Hall Pharmacy and defendants maintain an internet presence. Further, the record evidence demonstrates that White Hall Pharmacy fills prescriptions for residents of other states, shipping those prescriptions to customers, and relies on the national banking system to conduct its work. In addition, White Hall Pharmacy points out that defendants' marketplace is set by law and defined to include consumers from states other than Arkansas. See Ark. Admin. Code 007.16.4-IV(D)(1) (“A visiting qualifying patient may obtain marijuana from a dispensary upon producing evidence of his or her registry identification card or its equivalent that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States.”). For these reasons, at this stage of the litigation, the Court concludes it has subject matter jurisdiction over White Hall Pharmacy's claims.

         IV. Standard

         When determining whether to grant a motion for a preliminary injunction, this Court considers the same factors as the Court considered when evaluating the request for a temporary restraining order: (1) the movant's likelihood of success on the merits; (2) the threat of irreparable harm to the movant; (3) the balance between the harm to the movant and the injury that granting an injunction would cause other interested parties; and (4) the public interest. Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (citing Dataphase Sys. Inc. v. CL Sys., 640 F.2d 109, 114 (8th Cir. 1981)). Preliminary injunctive relief is an extraordinary remedy, and the party seeking such relief bears the burden of establishing the four Dataphase factors. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The focus is on “whether the balance of the equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Id. In deciding whether to grant preliminary injunctive relief or a temporary restraining order, likelihood of success on the merits is most significant. S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012). The “ordinary preliminary injunction test” applies here, and it “asks only whether a movant has demonstrated a ‘fair chance of prevailing' in the ultimate litigation . . . .” 1-800-411-Pain Referral Serv., LLC v. Otto, 744 F.3d 1045, 1054 (8th Cir. 2014) (quoting Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008 (en banc)).

         “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Bierman v. Dayton, 817 F.3d 1070, 1072 (8th Cir. 2006) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). But “[o]ther courts have granted preliminary relief without regard to establishing the status quo, as long as there was a showing of potential irreparable harm, and at other times, as long as the injunction creates a common sense modus vivendi . . . .” Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir. 1984) (quoting Unicon Mgmt. Corp. v. Koppers Co., 366 F.2d 199, 204 (2d Cir. 1966)).

         V. Emergency Motion For Preliminary Injunction

         White Hall Pharmacy brings five claims against defendants: (1) false or misleading advertising in violation of the Lanham Act 15 U.S.C. § 1125(a); (2) false or misleading endorsements in violation of 15 U.S.C. § 1125(a); (3) misappropriation of trademark; (4) tortious interference with business expectancy; and (5) unjust enrichment (Dkt. No. 1, ¶¶ 34-122). For relief, White Hall Pharmacy asks for injunctive relief, special damages, attorneys fees, and pre-and post-judgment interest.

         In its motion for an emergency preliminary injunction White Hall Pharmacy asks this Court for a preliminary injunction that “requires Defendants to immediately cease using Plaintiff's name, terms, and symbols in public business operations or advertising . . . .” (Dkt. No. 2, ¶ 14). In its most recent filing, White Hall Pharmacy admittedly narrows the relief it seeks and “requests that the Court order Defendants to immediately cease holding themselves out under the ‘Doctor's Orders' moniker to the public within the State of Arkansas.” (Dkt. No. 35, at 24). This would include a prohibition on any signage and advertising that can be viewed by consumers within the State of Arkansas. White Hall Pharmacy maintains that defendants may “use a red and white backsplash and the ‘Rx' symbol in association” with a new name “so long as the words ...


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