ORDER DENYING A TEMPORARY RESTRAINING ORDER (Re: Docket No. 9)

PAUL S. GREWAL, Magistrate Judge.

Plaintiff Choose Energy, Inc. operates an online energy marketplace at www.chooseenergy.com. Sometime this year, Choose Energy discovered Defendant American Petroleum Institute had embarked on a campaign to educate voters about the need to elect officials who support further development of our nation's oil and natural gas reserves. Much to its surprise, API branded its campaign with variations of Plaintiff's CHOOSEENERGY and CHOOSE ENERGY trademarks, including "Choose Energy," "chooseenergy.org" and "I choose energy." Choose Energy then demanded that API cease what Choose Energy saw as blatant infringement of the marks. API begged off, citing its First Amendment right to free speech and committing that its campaign would end no later than November 4, 2014. Choose Energy proceeded to file this suit and now seeks a temporary restraining order to prevent further infringement. Because Choose Energy does not appear likely to succeed in proving that API offers a "service" subject to the restrictions of the Lanham Act, the court denies the motion.

I.

The Trademark Act of 1946 ("Lanham Act") prohibits uses of trademarks, trade names, and trade dress that are likely to cause confusion about the source of a product or service.1 "The Supreme Court has made it clear that trademark infringement law prevents only unauthorized uses of a trademark in connection with a commercial transaction in which the trademark is being used to confuse potential consumers.2 Section 1114(a) is explicit in prohibiting only unauthorized use of a mark "in commerce... in connection with the sale, offering for sale, distribution, or advertising of any goods or services [if] ... such use is likely to cause confusion."

For over ten years, Choose Energy and its online marketplace have allowed individuals and business in deregulated states like California to compare offerings from a diverse group of energy suppliers. These suppliers do not compete on price alone. They also compete on source of supply, allowing options including natural gas plans with carbon offsets and electricity from renewables such as wind and solar to taut their green credentials even if they charge more per kWh. Choose Energy use its domain name and trademarks to emphasize the fact that its services, as opposed to its offerings, are energy unbiased.

API touts itself as the leading trade association for the petroleum and natural gas industry in the United States. API was established to afford a means of cooperation between the industry and the government in matters of national concern, foster foreign and domestic trade in American petroleum products, and promote the interests of the petroleum industry. API has long engaged in political messaging activities to advocate the collective views of its members and the petroleum industry as a whole.

Recently, API launched a "Choose Energy" project as part of a campaign aimed at educating voters and encouraging them to engage in conversation about energy issues in the approaching Fall election and to elect officials who support energy initiatives. API says that its sole purpose in this campaign has been to "[e]ducate Americans on key energy issues so that they can make better choices at the ballot box, connect them with candidates for elected office, and build the `energy vote' leading up to Election Day—November 4, 2014."3 This is but one example from API's www.chooseenergy.org site:

After learning about API's campaign, Choose Energy wrote a letter to API demanding that its use of "Choose Energy" in its campaign stop. After a period of and consideration and negotiation, API ultimately declined. API's response was curt, declaring that the First Amendment right to free speech justified its use without condition.

Choose Energy responded by filing suit in this court. Choose Energy's complaint alleges that "API has misappropriated Choose Energy's trademarks for a promotional campaign that is energy biased—extolling the purported benefits of the oil and natural gas industries and presenting a single choice to consumers: continued dependence upon non-renewable fossil fuels regardless of their adverse impact upon the environment."4 The complaint further alleges that "API is `fracking' Choose Energy's brand and is likely to cause confusion, mistake, and to deceive consumers as to the affiliation, connection, or association of API with Choose Energy. API's unauthorized use of Choose Energy's trademarks is a violation of Choose Energy's valuable intellectual property rights and is causing significant injury to Choose Energy's reputation and customer goodwill."5

Choose Energy seeks damages, attorney's fees and costs, and most importantly for present purposes, an injunction. Not content with API's commitment under penalty of perjury that its campaign will end come election day, Choose Energy asks the court to issue a temporary restraining order pursuant to Fed. R. Civ. P. 65(b). One court day after receiving Choose Energy's TRO motion, the court authorized API to file a response brief in advance of an extended hearing held earlier today.

II.

The parties consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).6

Choose Energy may well be right that it faces a substantial likelihood of confusion: the parties' marks are nearly identical, their services are similar, and perhaps API should have known better.7 Choose Energy's allegations and new evidence also strongly suggest harm to the reputation and good will of the company.8 But the court must first consider whether Choose Energy is likely to succeed on the merits under the Lanham Act. A careful review of the law and the evidence identified thus far reveals that Choose Energy in fact is unlikely to succeed on the merits given the lack of competition between the parties and their services. This leaves the court with nothing to do but deny Choose Energy's request for a temporary restraining order.

III.

For a temporary restraining order to be granted, a plaintiff must show that it is likely to succeed on the merits, it is likely to suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in its favor, and an injunction is in the public interest.9 Paramount among these factors is the required showing of likely success on the merits. Even if all other factors were to weigh in a plaintiff's favor, if she cannot show likelihood of success, her motion fails. Such is the fate of Choose Energy's motion here.

The plain language of the statute requires that Choose Energy show API used its mark in connection with goods or services.10 It is undisputed that no goods are at issue. So to fall within the ambit of the statute, the infringing mark must be classifiable as a service as contemplated by the statute. Through its website—chooseenergy.org—API provides "political messaging strategy" that educates voters and encourages them to engage in the political discourse about energy and to elect officials who support specific energy initiatives.11 But there is not even a whiff of commercial activity surrounding API's chooseenergy.org campaign.12

API's activities are clearly—and undisputedly—political in nature. They are also wholly and completely distinct from the commercial services offered by Choose Energy. There is no world in which API's online political activity might compete with Choose Energy's non-partisan, commercial energy platform. This leaves the court with a single question: can API's political activities trigger liability under the statute where API is not in competition with Choose Energy?

Citing the Second Circuit in United We Stand, Choose Energy correctly suggests that political activities can trigger liability under the Lanham Act.13 The Ninth Circuit—and this court—agree. But that does not wave Choose Energy past first base, let alone into home plate. Even while citing United We Stand, the Ninth Circuit insists that without competition, political activity alone is not sufficient:

As discussed above, there is no evidence in the record that Choose Energy and API compete in any way that could bring the claim within the purview of the Lanham Act. Choose Energy thus has failed to show a likehood of success on the merits, which dooms its motion for a temporary restraining order before the court can even proceed any further.

SO ORDERED.