Topsteptrader, LLC v. OneUp Trader, LLC, No. 17 C 4412, Slip Op. (N.D. Ill. Jun. 28, 2017) (Leinenweber, J.).
Judge Leinenweber denied plaintiff Topsteptrader’s motion for a temporary restraining order (“TRO”) seeking to enjoin defendant OneUp Trader from continuing to operate its website and its business, principally because Topsteptrader did not meet its burden to show likelihood of confusion in this copyright case.
As an initial matter, the Court considered the TRO only as to Topsteptrader’s breach of contract claim because at the initial hearing on the TRO, Topsteptrader stated that while the copyright claim was still pending, it was not part of the TRO. The relevance of any copying allegations was limited to alleged breach of Topsteptrader’s website terms of service.
Whether there was even an enforceable contract between the parties based upon the terms of service was heavily disputed between the parties. OneUp Trader allegedly clicked to accept the terms of service in 2015, but allegedly did not copy until 2017. Topsteptrader, however, did not produce the 2015 terms of service, instead asking the Court to accept that the terms had not changed between 2015 and the present terms that were put into evidence. Additionally, the relevant portion of the agreement was a non-compete clause without the necessary temporal or geographic limitations. There were, therefore, significant questions about the term’s enforceability. Because the relevant terms are likely unenforceable, there was no likelihood of success on the merits.
Because Topsteptrader’s claimed breach was based upon copying of publicly available information, the alleged injury is disconnected from the breach of contract. It, therefore, cannot be a basis for awarding a TRO.
The balance of harms favors OneUp Trader who would lose the ability to conduct its business. That risk, when balanced against Topsteptrader’s lack of likelihood of success on the merits and lack of irreparable harm, favors OneUp Trader.