51. Authentic is not a franchise of Barmasters and is not otherwise authorized to use its trademarks, trade names or methods of instruction and operation.
52. Also in 1995, Connor and Klein formed a New York corporation known as Cocktails, Inc. to run a Manhattan-based bartending school. They are Cocktails's only shareholders.
53. Barmasters has recently sold a Barmasters franchise in New York, which has opened its school in Manhattan.
3. The 800 Number
54. In January, 1996, Connor and With a Twist caused and directed the 800 Number's service provider to cease routing calls to PSB, but instead, to route them to Authentic's Philadelphia school or to With a Twist. This direction was made unilaterally and without the consent or knowledge of either PSB or Barmasters.
55. From that time until this action was filed, Authentic and Cocktails advertised themselves in newspapers, telephone books, brochures and other media, using the 800 Number.
56. Authentic's and Cocktails's use of the 800 Number creates a substantial risk of confusing and misleading prospective Barmasters students.
4. Misleading Advertisements
57. From the time they began business until the time this action was filed, Authentic and Cocktails used identical copies of Barmasters's advertising and promotional materials, simply changing the name of the school, but leaving all other representations the same.
58. During the same time frame, Authentic placed a series of advertisements in a number of newspapers and telephone books, all of which made the same false representations and statements.
59. Cocktails placed a number of newspaper advertisements making the same false representations and statements.
60. This use resulted in a number of inaccurate statements, such as the claim that Authentic was the "oldest state licensed [bartending] school" in Pennsylvania when it was not, and indeed, was not even state licensed.
61. At all times relevant to this action, PSB has been licensed by the Commonwealth of Pennsylvania's Department of Education as a trade school.
62. At no time has Authentic been licensed as a private school by any state. In late 1995 or early 1996, Authentic, by Klein, applied for a license with the Pennsylvania State Board of Private Licensed Schools. This application was lost and Authentic has since made a new application.
63. Authentic's original license application included a number of untruths, such as that it was approved by the New Jersey Department of Education. These facts are true with respect to Barmasters and PSB, but not with respect to Authentic.
64. Klein testified that the advertisements and promotional materials published by or at the request of Authentic and Cocktails were false and improper.
5. Representations to Prospective Students
65. A private investigator testified that he was hired by Barmasters to visit Authentic's Philadelphia school to learn what representations were made to prospective students.
66. He testified that an Authentic representative told him, amoung other things, that Authentic was licensed by the Commonwealth of Pennsylvania, that it operates other locations throughout the country and that it has an established job placement program.
67. The evidence demonstrated that each of those, and other assertions, are false.
68. When the private investigator gave the Authentic representative his credit card to pay for a bartending course, the Authentic representative processed the charge by use of the credit card machine and account of the Paramus school.
A preliminary injunction can be granted if the movant proffers sufficient evidence that (1) it has a reasonable probability of success on the merits, (2) it will be irreparably harmed by denial of relief, (3) a preliminary injunction will not result in even greater harm to the other party and (4) a preliminary injunction is in the public interest. Campbell Soup, Inc. v. ConAgra, Inc., 977 F.2d 86, 90-91 (3d Cir. 1992); ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987).
1. Reasonable Probability of Success on the Merits
A. Lanham Act
Section 1125(a) of the Lanham Act prohibits false designations of origin and false descriptions by stating:
Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce . . . shall be liable to a civil action . . . by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.