Aereo Denied First Attempt to Stop 'Aero'

Gareth Cattermole/Getty Images

Alki David

A California judge has denied Aereo's motion for a temporary restraining order against Alki David's use of Aero.

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On March 7, Aereo filed a trademark infringement lawsuit against David's FilmOn. In pushing for a TRO, Aereo said, "The public's opinion, attitude and impression of Aereo will likely be irreparably harmed by Defendants' unauthorized services or advertising in such circumstances. The harm will increase every day the misconduct is allowed to continue, and the goodwill associated with Aereo's mark will likely be permanently damaged through such efforts."

The judge denied the motion without prejudice to Aereo. The company backed by Barry Diller will have an opportunity for another try with a motion for a preliminary injunction.

David says he has been using "Aero" before Aereo was known as Aereo. He brought his own lawsuit against Aereo in February.

Meanwhile, Aereo is still waiting an imminent ruling by the 2nd Circuit Court of Appeals. The broadcasters don't like the fact that a New York judge denied last year their own motion for an injunction against Aereo's service. The TV networks assert that Aereo's service is a violation of their copyrighted programming.

As the parties prepare for that ruling, Aereo and the broadcasters engage each other in discovery issues at the trial court.

Recently, the broadcasters requested and got the opportunity to make a briefing on documents that needed to be handed over.

Aereo is seeking all sorts of information from broadcasters in an effort to show that the harm from Aereo's technology is overstated. The company is demanding the retransmission and licensing agreements that the TV networks have signed. Aereo also wants advertising revenue, broken down per program per month, and documents related to Nielsen and other ratings services as well as information related to the commercial impact of antennas, DVRs and place shifting devices, such as SlingBox.

A ruling on the discovery demands should also be coming soon.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner