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MONSTER, INC’S MEMORANDUM IN OPPOSITION TO APPLICATION FOR

TEMPORARY RESTRAINING ORDER AND MOTION FOR EXPEDITED DISCOVERY

JAMES E. GERINGER, OSB No. 951783
james.geringer@klarquist.com
NORMAN ANDREW SFEIR, OSB No. 131787
andy.sfeir@klarquist.com
KLARQUIST SPARKMAN, LLP
121 S.W. Salmon Street, Suite 1600
Portland, Oregon 97204
Telephone: (503) 595-5300
Fax: (503) 595-5301

Attorneys for MONSTER, INC.
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
CARBON AUDIO, LLC, a Delaware limited
liability company, and HEADBOX, LLC, d/b/a
BOOMPHONES, a Delaware limited liability
company,

Plaintiffs,

v.

MONSTER, INC., a California corporation,

Defendant.
Case No. 3:14-cv-00332-PK

JURY TRIAL DEMANDED


MONSTER, INC.’S MEMORANDUM IN
OPPOSITION TO APPLICATION FOR
TEMPORARY RESTRAINING ORDER
AND MOTION FOR EXPEDITED
DISCOVERY

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TABLE OF CONTENTS
Page

I. INTRODUCTION .............................................................................................................. 1
II. PLAINTIFFS FAIL TO SHOW EVIDENCE TO SUPPORT
THEIR CLAIMS, MUCH LESS A LIKELIHOOD OF SUCCESS .................................. 1
A. Plaintiffs Fail To Identify Any Trade Secrets, Or Any Misappropriation, And
Fail To Explain Why Oregon Law Should Apply To Actions Outside Oregon ................. 1
B. Plaintiffs Offer No Evidence To Support Their Allegation That Monster
Intentionally Interfered With Carbon Audio’s Alleged Contract With 3NOD ................... 4
C. Plaintiffs Fail To Identify Any Misrepresentation Under The Lanham Act ....................... 5
III. PLAINTIFFS FAIL TO RECOGNIZE THE
PUBLIC INTERESTS REFLECTED IN
LEATHERMAN AND IN ORS 646.461(2)(C) ................................................................... 6
IV. PLAINTIFFS OFFER NO EXPLANATION WHY
THEY WAITED SO LONG TO SEEK EMERGENCY RELIEF ..................................... 6
V. BALANCE OF EQUITIES AND BOND........................................................................... 7
VI. OBJECTIONS TO HEARSAY .......................................................................................... 7
VII. PLAINTIFFS’ MOTION FOR EXPEDITED DISCOVERY
SHOULD BE DENIED, OR IF GRANTED, MADE RECIPROCAL .............................. 8
VIII. PLAINTIFFS DO NOT ALLEGE FACTS SUFFICIENT TO SUPPORT
THE ASSERTION OF PERSONAL JURISDICTION OVER MONSTER ...................... 9
IX. CONCLUSION ................................................................................................................. 11





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TABLE OF AUTHORITIES
Page
!"#$#
Contour Design, Inc. v. Chance Mold Steel Co., Ltd., et al.,
2010 WL 4774283 (D.N.H.) ................................................................................................... 2, 4
Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co.,
907 F.2d 911 (9th Cir. 1990) .................................................................................................... 11
Gray & Co. v. Firstenberg Mach. Co.,
913 F.2d 758 (9th Cir. 1990) ...................................................................................................... 9
Holland Am. Line Inc. v. Wärtsilä N. Am., Inc.,
485 F.3d 450 (9th Cir. 2007) .................................................................................................... 10
In re W. States Wholesale Natural Gas Antitrust Litig.,
715 F.3d 716 (9th Cir. 2013) .................................................................................................... 10
Leatherman Tool Group v. Cooper Industries, Inc.,
199 F.3d 1009 (9th Cir. 1999) .................................................................................................... 6
Mavrix Photo, Inc. v. Brand Techs., Inc.,
647 F.3d 1218 (9th Cir. 2011) .................................................................................................... 9
Pebble Beach Co. v. Caddy,
453 F.3d 1151 (9th Cir. 2006) .................................................................................................... 9
Precision Automation, Inc. v. Technical Servs., Inc.,
No. 07-CV-707-AS, 2007 WL 4480736, (D. Or. Dec. 14, 2007).............................................. 5
Qiang Wang v. Palo Alto Networks, Inc.,
2013 WL 415615 (N.D. Ca. 2013)5) .......................................................................................... 5
Vigilante.com, Inc. v. Argus Test.com, Inc.,
No. 04-413-MO, 2005 WL 2218405, (D. Or. Sept. 6, 2005) .................................................... 5
Walden v. Fiore,
No. 12-574, slip op. at 5 (S. Ct. Feb. 25, 2014) ........................................................................ 10
%&"&'&$#
Lanham Act, Title 15 U.S.C. .......................................................................................................... 1
(&)$* ,'&)-*.&.$#
ORS 646.475 ................................................................................................................................... 5
ORS § 646.473 ................................................................................................................................ 5
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/'0$#
Or. R. Civ. P. 4 ................................................................................................................................ 9

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I. INTRODUCTION
Plaintiffs rely on three claims for the extraordinary emergency relief they seek: alleged
trade secret misappropriation under Oregon law, alleged interference with contract under Oregon
law, and alleged false description of goods under the Lanham Act, Title 15 U.S.C. None of these
claims has merit. Furthermore, Plaintiffs offer no explanation for their lengthy delay in bringing
their motion for emergency relief, or any explanation why they never shared any of their
suspicions or documents with Monster before springing their surprise motion. Plaintiffs also fail
to acknowledge the strong public interests that weigh against a patent-like injunction in this case,
where no patents exist, no trade secrets have actually been identified, and plaintiffs’ hearsay and
“information and belief” allegations regarding Monster’s intent are directly contradicted by
affirmative evidence showing that Monster designed its own product with no knowledge or
reason to suspect that doing so trespassed upon any intellectual property or interfered in any way
with Plaintiffs.
II. PLAINTIFFS FAIL TO SHOW EVIDENCE TO SUPPORT
THEIR CLAIMS, MUCH LESS A LIKELIHOOD OF SUCCESS
A. Plaintiffs Fail To Identify Any Trade Secrets, Or Any Misappropriation, And
Fail To Explain Why Oregon Law Should Apply To Actions Outside Oregon
Plaintiffs’ alleged “new idea” of a Bluetooth speaker “that had the look, feel, and size of
a smartphone with room-filling, high-quality sound”
1
is too general to qualify for trade secret
protection. As documented in the accompany Declaration of Elbert Lee (“Elbert Lee Decl.”),
smartphone-sized wireless speakers had already been sold to the American public by the time of
any alleged improper disclosure to Monster of that “idea” by 3NOD. Indeed, smartphone-sized
wireless speakers had already been sold in the American marketplace before Carbon Audio

1
Dkt. 8, Page ID# 75.
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allegedly disclosed its Pocket Speaker prototype to 3NOD in January 2013. Monster itself has
made portable wireless speakers since before Carbon Audio was born.
Neither have Plaintiffs shown that Carbon Audio treated the external design of their
device as a trade secret. For example, Carbon Audio showed the Pocket Speaker to at least one
other company in the industry, Sol Republic, in June 2013, without any obligation to keep it
confidential. (Kevin Lee Decl. ¶¶ 2-3; Elbert Lee Decl. ¶ 40).
Moreover, the external shape of the Pocket Speaker itself is not original – mimicking, as
it does, the Apple iPhone 5. And as the Contour case cited by plaintiffs makes clear, there is no
trade secret protection in generalities (or in the look of products exposed to others under no duty
of confidentiality). Instead, trade secret protection in Uniform Trade Secret Act (“UTSA”)
jurisdictions must be specific, and the “secret” must actually be kept secret. See Contour Design,
Inc. v. Chance Mold Steel Co., Ltd., et al., 2010 WL 4774283, *5 (D.N.H.) (“Plaintiff has not, as
required under UTSA, identified with reasonable specificity the trade secrets that [defendant]
allegedly misappropriated”); id. at *8 (physical appearance of products not confidential where
treated in nonconfidential manner prior to alleged misappropriation).
Plaintiffs have also failed to show that 3NOD owed any duty of confidentiality to Carbon
Audio regarding the external shape of the Pocket Speaker.
2
Exhibit A to the Complaint is the
only purported support for this claim, and Exhibit A is conspicuously blank in the critical spot
where the “Product” must be described on the “Statement of Work.”
3
This is fatal, because the
only intellectual property assigned to Carbon Audio under the terms of the Agreement is

2
Plaintiffs’ alleged Nondisclosure Agreement (Dkt 1-2) is not with the “3NOD” entity that
signed the Manufacturing Agreement (Dkt 1-1), but with a similarly-named but apparently
different legal entity, Shenzen 3NOD Electronics Co., Ltd.
3
See Dkt. 1-1 Page ID # 39 (Exh. A page 8); id., Page ID # 33 (definitions of “Statement of
Work” and “Product(s).”
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“Created Intellectual Property,” a term whose definition is expressly limited to intellectual
property rights relating to the “Product.”
4
Moreover, Plaintiffs admit that this undated
Agreement (which by its own terms must be dated in order to be effective at all)
5
was executed
“in early 2012” (Riggs Decl. ¶ 12), before Carbon Audio claims to have first started working on
the design “concept” in September 2012, and even longer before Carbon Audio allegedly showed
a prototype to 3NOD in January 2013. (Riggs Decl. ¶¶ 5, 10).
Further, Plaintiffs ignore the fact that Monster
6
materially changed its position in the
months since it committed, in good faith, to using 3NOD and others to make and assemble the
SuperStar speaker.
7
See Elbert Lee Decl. ¶ 42. As the Elbert Lee Declaration makes
painstakingly clear, the SuperStar speaker is a new device, quite different both inside and out
from the Pocket Speaker (Elbert Lee Decl., ¶¶ 24-31), and Monster did not move ahead in having
3NOD manufacture the new design until Monster received 3NOD’s express written assurance
that 3NOD was free and clear to make the SuperStar device to Monster’s specifications. (Elbert
Lee Decl., ¶ 21; see also Declaration of Steven Zhang and Exhibit A thereto). As a result, if
Oregon trade secret law applies in this case, plaintiffs’ trade secret claim must fail, both because
plaintiffs do not identify any actual trade secrets in their papers, and because Plaintiffs identify
nothing to suggest that Monster “knew or had reason to know” that 3NOD had disclosed any
Carbon Audio trade secrets, or that 3NOD would need to use Carbon Audio trade secrets in order

4
See Dkt. 1-1 Page ID# 32-33 (Exhibit A at pp. 1-2), Section 1, definitions of “Created
Intellectual Property” and “Manufacturing Services” (which in turn references “Product”).
5
See Dkt. 1-1 Page ID# 32 (Exhibit A at p. 1), Section 1, definition of “Effective Date.”
6
Monster, LLC, a Nevada entity, not Monster, Inc., the California corporation named as a
defendant, is the Monster entity that designed the SuperStar speaker.
7
Besides 3NOD’s assembly work, Monster engaged a different company (not 3NOD) to make
the plastic housing of the device, and spent tens of thousands of dollars on tooling.
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to make the SuperStar device.
8
Plaintiffs’ claim thus fails under ORS 646.461(2) (a), (b) and (d).
Plaintiffs’ claim also fails under ORS 646.461(2)(c), because by the time Plaintiffs belatedly
shared their accusations with Monster (something Plaintiffs did only by filing this suit, after
inexplicably waiting in silence for at least four months after supposedly learning that Monster
was marketing its own portable speaker design
9
), Monster had materially changed its position.
See ORS 646.461(2)(c) (governing disclosures to persons who materially change position before
knowing or having reason to know a trade secret was acquired by accident or mistake). Monster
had no way of knowing, and no reason to suspect, that the short beep noises that 3NOD used in
the preliminary model shown at the Consumer Electronics Show (CES) allegedly came from
Carbon Audio. In any case, the production models do not use these beeps, but instead use a
female voice with a British accent, something Monster has done before. Elbert Lee Decl. ¶ 35.
B. Plaintiffs Offer No Evidence To Support Their Allegation That Monster
Intentionally Interfered With Carbon Audio’s Alleged Contract With 3NOD
The Contour case also illustrates the weakness of Plaintiffs’ contract interference claim.
Specifically, in Contour, the manufacturer entered an agreement not to compete with the
plaintiff. Contour, 2010 WL 4774283, *2, *10 (finding breach of non-compete provision agreed
to by defendant manufacturer). There is no such agreement here, and no reason why Monster
should have assumed one. Indeed, in light of the clearly widespread capability of American and
Chinese industry to make small wireless speakers (and to make them in the same kind of useful
shapes that are popular for smartphones), Monster had no reason to think that 3NOD would
require Carbon Audio trade secrets to make a speaker the size and shape of the Super Star.

8
Plaintiffs offer no word to explain why Oregon law should apply to actions outside Oregon.
While Carbon Audio’s contract with 3NOD (Dkt. 1-1) provides for Oregon law (and venue) to
apply to disputes over that agreement, that provides no reason to apply Oregon law to actions in
China or California.
9
Dkt. 8 at Page ID # 88 (alleging
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Plaintiffs’ claim for intentional interference with contract fails for lack of any showing of
knowledge or intent by Monster to do anything to disrupt Carbon Audio’s contract with 3NOD.
Plaintiffs fail to identify any clause of any agreement that Monster caused or induced 3NOD to
breach, other than confidentiality. And plaintiffs fail to show that any breach of confidentiality
was necessary or expected. Rather, as illustrated in detail in the Declaration of Elbert Lee, it is
clear that small wireless speakers can be designed and made without interfering in any way with
the contract between 3NOD and Carbon Audio. Carbon Audio’s claim is nothing more than a
hindsight attempt to cast its 3NOD agreement as having a noncompete clause, which it does not.
Monster also notes that, if Oregon law applies, Plaintiffs’ interference claim is preempted
by ORS § 646.473 (“(1) Except as provided in subsection (2) of this section, ORS 646.461 to
646.475 supersede conflicting tort, restitution or other law of Oregon providing civil remedies
for misappropriation of a trade secret.”) See, e.g., Qiang Wang v. Palo Alto Networks, Inc., 2013
WL 415615, *3-5 (N.D. Ca. 2013) (applying California’s version of UTSA); Precision
Automation, Inc. v. Technical Servs., Inc., No. 07-CV-707-AS, 2007 WL 4480736, *1-2 (D. Or.
Dec. 14, 2007) (a tortious interference claim is preempted if its essence “relates primarily to the
alleged misappropriation of a trade secret”); Vigilante.com, Inc. v. Argus Test.com, Inc., No. 04-
413-MO, 2005 WL 2218405, *13 (D. Or. Sept. 6, 2005) (plaintiff's unfair competition claim
preempted because it alleged that defendant competed unfairly by misappropriating and
exploiting plaintiff's confidential information (i.e., trade secrets) and using a misappropriated
customer list).
C. Plaintiffs Fail To Identify Any Misrepresentation Under The Lanham Act
Plaintiffs don’t point to any specific fact they allege Monster has misstated. They cite a
sales pitch that’s opinionated but accurate. (See Elbert Lee Decl. ¶¶ 44-46). The press release
(Dkt. 1-3) is also accurate. (See Elbert Lee Decl. ¶ 39). Neither, in any event, is a Section 43(a)
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claim under the Lanham Act stated merely by asserting that the accused goods were made in
violation of someone’s trade secrets.
III. PLAINTIFFS FAIL TO RECOGNIZE THE PUBLIC INTERESTS
REFLECTED IN LEATHERMAN AND IN ORS 646.461(2)(C)
Plaintiffs’ memorandum pays short shrift to the public notice factor of the TRO analysis.
One specific public interest that Plaintiffs ignore is the policy expressed in section (2)c) of ORS
646.461. As noted above, the Oregon UTSA expressly provides protection for parties in
Monster’s position, who are accused long after the fact of having received some alleged trade
secret by mistake or accident. There is a strong public interest against allowing such “secrets” to
threaten the work and investment of parties who had no reason to know at the time of the alleged
disclosure that any kind of trade secret was being disclosed.
There is also a strong public interest against granting patent-like monopolies on the basis
of alleged trade dress. See, e.g., Leatherman Tool Group v. Cooper Industries, Inc., 199 F.3d
1009 (9th Cir. 1999) (overall appearance of a useful article is not protectable trade dress).
IV. PLAINTIFFS OFFER NO EXPLANATION WHY THEY
WAITED SO LONG TO SEEK EMERGENCY RELIEF
Plaintiffs admit that they were told months prior to the January 2014 CES trade show that
Monster had a new speaker design. (Martin Decl., Dkt 11, ¶¶ 31-32; Dkt. 8 at Page ID# 78).
Indeed, the SuperStar speaker generated considerable publicity, including in the English
language trade press. (Elbert Lee Decl. ¶ 41). Yet despite their awareness – which the January
7-10 CES tradeshow in Las Vegas reinforced nearly two months before this suit – Plaintiffs did
not file suit against Monster, did not communicate their allegations to Monster, and did not
initiate the mandatory arbitration with 3NOD clearly provided for in the Manufacturing
Agreement (if that Agreement is effective at all). See Dkt. 1-1 at Page ID# 37, ¶ 13.13
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(agreement to mandatory arbitration in Multnomah County). Plaintiffs’ delay severely undercuts
their professed need for emergency relief.
V. BALANCE OF EQUITIES AND BOND
The harm that a TRO would do to Monster is irreparable, not only to Monster but also to
the many third parties in Monster’s supply and distribution chains. Launching a new product
requires the coordinated efforts of many people, including not least the retailers who are
planning on receiving Monster’s already-announced product. As explained in paragraph 42 of
the Elbert Lee Declaration, if Monster’s shipments are delayed, it will likely miss an entire sales
cycle with at least some retailers. For major retailers like Best Buy, missing the deadline for
spring could mean the product will not be stocked until fall. In the fast-moving, innovative
market for small wireless speakers, Monster’s large investment in design, tooling, and
promotions would be largely lost, and the lost market share would be hard to recapture.
In contrast, Carbon Audio’s product has already been available (Plaintiffs say) for months.
If any preliminary injunction relief is granted, the bond should be commensurate to the
harm that plaintiffs seem to impose on Monster.
VI. OBJECTIONS TO HEARSAY
Monster objects to Plaintiffs’ reliance on hearsay and double hearsay statements
improperly cited by plaintiffs for their alleged truth. Examples include:
Martin Decl. ¶¶ 31-32 (quoting for truth the alleged statement of an unnamed alleged Sol
Republic employee).
Riggs Decl. ¶ 29 (quoting for truth the alleged statement of an unnamed Monster
employee).
Riggs Decl. ¶ 28, Martin Decl. ¶ 45 (quoting for truth the alleged statements of unnamed
tradeshows attendees to unnamed Carbon Audio or Boomphones people).
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Martin Decl. ¶ 33 (alleged statement by non-party).
VII. PLAINTIFFS’ MOTION FOR EXPEDITED DISCOVERY
SHOULD BE DENIED, OR IF GRANTED, MADE RECIPROCAL
Because this case lacks a basis for emergency relief, discovery should proceed
expeditiously under the normal rules. Monster is ready to meet with plaintiffs anytime to discuss
Initial Disclosures, to discuss depositions, and work out an appropriate proposed Protective
Order to protect confidential information.
If expedited discovery is ordered, Monster asks that it be reciprocal and that confidential
information be protected. Some deposition topics and documents plaintiffs should provide
immediate discovery on in that circumstance are listed below:
1. The identity of plaintiffs’ alleged trade secrets, if any, including in particular any
trade secret plaintiffs allege is necessary to make a small speaker like the Super Star device.
2. What information did Carbon Audio disclose to 3NOD, and what contributions did
3NOD make in its collaboration with Carbon Audio? What aspects of the Pocket Speaker are
allegedly licensed from 3NOD (rather than assigned) under the 3NOD-Carbon Audio
agreement?
3. What features, if any, of the Pocket Speaker does Carbon Audio claim to be
nonfunctional?
4. Why did Carbon Audio choose to work with 3NOD? What did 3NOD do to earn the
trust that Carbon Audio now claims has been damaged?
5. What has Carbon Audio said (if anything) to 3NOD? And why hasn’t Carbon Audio
invoked arbitration in Multnomah County with 3NOD? (See Dkt. 1-1, para. 13-13).
6. Is the Pocket Speaker currently sold by Apple? If not, why not?
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7. To what companies and individuals did Carbon Audio or Boomphones show the
Pocket Speaker before its commercial release?
8. Documents and things that 3NOD should produce include the Pocket Speaker that
Carbon Audio showed to Sol Republic in June, and anything that either Plaintiff contends rebuts
the fact that Carbon Audio disclosed the Pocket Speaker to Sol Republic in June 2013 without a
non-disclosure agreement.
VIII. PLAINTIFFS DO NOT ALLEGE FACTS SUFFICIENT TO SUPPORT
THE ASSERTION OF PERSONAL JURISDICTION OVER MONSTER
Plaintiffs have failed to plead any facts that would justify the exercise of personal
jurisdiction over Monster, Inc. in this case.
Personal jurisdiction exists if permitted by a State’s long-arm statute and if exercising
that jurisdiction does not violate federal due process. Pebble Beach Co. v. Caddy, 453 F.3d
1151, 1154 (9th Cir. 2006). Oregon’s long-arm statute confers jurisdiction to the extent
permitted by due process. Or. R. Civ. P. 4; Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758,
760 (9th Cir. 1990). Thus, this court may exercise personal jurisdiction only if due process
permits.
Personal jurisdiction may be either specific or general. For a court to exercise general
personal jurisdiction over a corporate defendant, that “defendant must engage in continuous and
systematic general business contacts that approximate physical presence in the forum state.”
Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223-24 (9th Cir. 2011) (quotations
omitted). Plaintiffs allege only that Monster conducts business in this District, and “is causing
injury to Plaintiffs in this District.” (Complaint, Dkt 1, ¶ 13). Plaintiffs do not, and cannot,
allege that Monster, Inc. has the kind of continuous and systematic general business presence in
Oregon that general jurisdiction requires.
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Neither does specific personal jurisdiction exist. To exercise specific jurisdiction, there
must be “minimum contacts” between the State and the defendant. Walden v. Fiore, No. 12-574,
slip op. at 5 (S. Ct. Feb. 25, 2014). “[T]he relationship must arise out of contacts that the
defendant himself creates with the forum State.” Id. at 6 (quotation omitted; emphasis in
original). It does not turn on “contacts between the plaintiff . . . and the forum State.” Id. And,
the “‘minimum contacts’ analysis looks to the defendant’s contacts with the forum State itself,
not the defendant’s contacts with persons who reside there.” Id. at 7. Plaintiffs allege no
contacts between Monster and Oregon. That Plaintiffs allegedly will be injured in Oregon (see
Dkt. 1 ¶ 13(d)) is insufficient, because the jurisdictional inquiry is not on defendant’s contacts
with the plaintiff, but with the forum state, as Walden emphasized. That Monster may have sold
other products in Oregon that are not accused in this action (see Dkt. 1 ¶ 13(a)) is also
insufficient, because specific jurisdiction is claim-specific. That is, “the claim must be one
which arises out of or relates to the defendant’s forum-related activities.” In re W. States
Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 742 (9th Cir. 2013) (quotation omitted).
Any such other products sold are irrelevant to Plaintiff’s claims here. Lastly, that Monster
allegedly has marketed and is prepared to sell the Superstar speaker here (see Dkt. 1 ¶ 13(b)) is
also insufficient. Plaintiff identifies no such marketing. That Monster has posted advertisements
to YouTube does not create specific personal jurisdiction, because an Internet advertisement is
not action “purposefully directed” to a forum state. See Holland Am. Line Inc. v. Wärtsilä N.
Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007) (finding website advertisement insufficient to create
personal jurisdiction, where it “does not provide any direct means for purchasing parts or
requesting services” and instead “simply provides information on the various products
manufactured . . .and redirects potential customers to the appropriate subsidiary.”). Speculated
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future sales of the Superstar speaker are irrelevant, because specific jurisdiction must rely on
actions already taken, not potential future acts within a State. See Farmers Ins. Exch. v. Portage
La Prairie Mut. Ins. Co., 907 F.2d 911, 913 (9th Cir. 1990) (“Only contacts occurring prior to
the event causing the litigation may be considered.”). Because these allegations are insufficient,
personal jurisdiction over Monster has not been established.
IX. CONCLUSION
For the reasons stated above, even a narrowly drawn injunction would be inappropriate
on this record. Even the narrowest of injunctions would basically give plaintiffs something
Carbon Audio never bargained for with 3NOD – a de facto non-compete. Moreover, Plaintiffs
have failed to establish that they have any trade secrets relating to the Pocket Speaker, and offer
no evidence that the SuperStar speaker contains anything but the fruits of Monster’s own hard
work. Further, as noted above, Monster sought and received express assurances from 3NOD that
3NOD owned all needed “know how” rights in the design of the device 3NOD showed Monster
in June 2013. At its core, Plaintiffs’ suit faults Monster for accepting the word of the same
company that Carbon Audio asked to manufacture its own designs.
Plaintiff’s delay also speaks volumes. Plaintiffs themselves allege that they were advised
of Monster’s product at least four months ago. Yet Plaintiffs offer no explanation why they
waited nearly two months to seek this emergency relief after inspecting (and videotaping)
Monster’s SuperStar product at the trade show. Instead they allowed Monster to continue to
materially change its position, to Monster’s increasing prejudice, announcing the product and
putting suppliers, retailers, and other third parties in harm’s way of an injunction, if one is
entered. Plaintiffs’ application for emergency injunctive relief has been brought late and lacks
merit, and should be denied.

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Dated: March 5, 2014


s/James E. Geringer/
James E. Geringer, OSB No. 951783
james.geringer@klarquist.com
Norman Andrew Sfeir, OSB No. 131787
andy.sfeir@klarquist.com
KLARQUIST SPARKMAN, LLP
121 S.W. Salmon Street, Suite 1600
Portland, Oregon 97204
Telephone: (503) 595-5300
Fax: (503) 595-5301

Attorneys for MONSTER, INC.





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