MEMORANDUM DECISION AND ORDER I. BACKGROUND Plaintiffs Albany Patroons, Inc. and Albany Basketball & Sports Corp. (hereinafter referred to as “Plaintiffs”) commenced this action against Defendant Demperio Sports & Entertainment, LLC (hereinafter “Defendant Corporation”) alleging (1) unfair competition pursuant to 15 U.S.C. §1125(a); (2) fraud on the United States Patent and Trademark Office (“USPTO”) pursuant to 15 U.S.C. §1064(3); (3) cancellation of a trademark based on non-use pursuant to 15 U.S.C. §1119; (4) cancellation of a trademark based on the likelihood of confusion or dilution pursuant to 15 U.S.C. §1119; (5) dilution by blurring pursuant to 15 U.S.C. §1125(c)(1); (6) cyberpiracy pursuant to 15 U.S.C. §1125(d); (7) tortious interference with prospective business advantage; (8) tortious interference with contract; and (9) injurious falsehood. See Dkt. No. 1, Compl., at 6-17. As a brief history, Plaintiff Albany Patroons, Inc. alleges that it acquired an interest in the Albany Patroons basketball team’s trademark in the early 1980s and maintained a legally protectable interest in that trademark ever since. See id. at 1.1 Plaintiffs assert that, since 2005, they have operated a gift shop in the Washington Avenue Armory (hereinafter “the Armory”) that sells Albany Patroons merchandise. See id. at 2. Additionally, following announcement of the basketball team’s second revival in August 2017, Plaintiffs claim that they undertook “significant commercial activity” with respect to the Albany Patroons, including using the team’s trademark. See id. at 3. In November 2017, Defendant Corporation filed a Class 41 application with the USPTO to register the Albany Patroons trademark for use in entertainment services. See id. at 5; Dkt. No. 1-1, Ex. A, at 2. Defendant Corporation already owned a Class 25 trademark for use of the Albany Patroons name and logo on hats, pants, scarves, shorts, warm up suits, hooded sweatshirts, sports jerseys, and T-shirts. See Dkt. No. 1 at
4, 7a; Dkt. No. 1-1, Ex. B, at 4. Defendant Corporation allegedly used that trademark to list a singular T-shirt with the Albany Patroons logo for sale on Amazon. See Dkt. No. 1 at 7a. The day after filing its Class 41 application with the USPTO, Defendant Corporation sent a cease and desist letter — signed by its agent, Derek Demperio, who is an Intervenor-Defendant in this action (hereinafter “Intervenor-Defendant”) — to Plaintiffs, claiming that Defendant Corporation held the trademark for the Albany Patroons and demanding that Plaintiffs pay certain fees in exchange for Defendant Corporation’s allowing the continued use of the trademark. See id. at 6. Plaintiffs assert that, throughout the following years, Intervenor-Defendant, through Defendant Corporation, continued to “threaten and harass” Plaintiffs, including reaching out to sponsors, partners, and important community members. See id. at 9. As a result of those threats, Plaintiffs contend that they lost a licensing agreement and had to remove the Albany Patroons logo from the league’s website, which led to a struggle to ensure that the second revival was a success. See id. at 8. Plaintiffs initially challenged Defendant Corporation’s registration for the Albany Patroons trademark before the United States Trademark Trial and Appeal Board (“TTAB”). See Dkt. No. 16-2, Corts Aff., at 11. On the last day of the trial period before the TTAB, Defendant Corporation allegedly assigned its interest in the Class 25 trademark, its Class 41 trademark application, and a separate, basketball-related trademark to Intervenor-Defendant. See Dkt. No. 16-2 a t 25; Dkt. No. 16-2, Ex. 6, at 23-24. On the same day, Plaintiffs commenced their action before this Court and moved the TTAB to stay its proceedings, which the TTAB granted. See Dkt. No. 20, Int-Def’s Mot. for Stay, at 2-4. Pending before the Court are Plaintiffs’ motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, see Dkt. No. 16, and Intervenor-Defendant’s motion to stay this action pending resolution of the TTAB proceeding, see Dkt. No. 20. Intervenor-Defendant also appears to claim in his papers that he is seeking a counter motion for a preliminary injunction pursuant to Rule 65; however, he has not made a formal motion before the Court. See Dkt. No. 18, Int-Def’s Memorandum in Opposition to Preliminary Injunction, at 1, 9-10. Notably, Defendant Corporation has not appeared in this action and has not responded to either motion.2 II. DISCUSSION A. Intervenor-Defendant’s motion for a stay Intervenor-Defendant concedes that the TTAB has stayed its proceedings pending the outcome of this action. See Dkt. No. 20 at 4; Dkt. No. 20, Ex. F, at 45. Nonetheless, he argues that, after three years of litigation before the TTAB, it is a waste of time, money, and judicial resources to essentially “reset[]” this matter before this Court. See Dkt. No. 20 at 6-8. Plaintiffs, in response, assert that the TTAB itself has recognized that many of their claims and their requested relief involve matters that are not within TTAB’s jurisdiction. See Dkt. No. 21, Pls’ Memorandum in Opposition to Stay, at 5. Furthermore, Plaintiffs contend that Defendant Corporation created an antecedent question of the validity of its assignment of the intellectual property rights and trademark application at issue to Intervenor-Defendant pursuant to 15 U.S.C. §1060(a)(1). See id. at 6-7. Notably, neither party has pointed to any caselaw requiring the Court to stay this action pending resolution of the TTAB proceeding. “[T]he Second Circuit has held that dismissal of a trademark action involving infringement in deference to a USPTO registration determination may constitute an abuse of discretion, as ‘delaying consideration of [plaintiff's] claim pending the outcome of the TTAB proceedings undercuts the purpose of declaratory relief by forcing [plaintiff] either to abandon use of trademarks…or to persist in piling up potential damages.’” Classic Liquor Imps., Ltd. v. Spirits Int’l B.V., 151 F. Supp. 3d 451, 459 (S.D.N.Y. Dec. 29, 2015) (quoting Goya Foods, Inc. v. Tropicana Prods., Inc., 846 F.2d 848, 854 (2d Cir. 1988) (internal quotation marks omitted)). The Court finds that the same rationale applies in this case. It would be improper for the Court to stay an action for the purpose of deferring to the TTAB, particularly when the TTAB has already stayed its proceeding to defer to this Court. See id. Accordingly, the Court denies Intervenor-Defendant’s motion to stay this action.3 B. Plaintiffs’ motion for a preliminary injunction “In order to obtain a preliminary injunction, a party must establish irreparable harm and either (a) a likelihood of success on the merits or (b) a sufficiently serious question going to the merits, with a balance of hardships tipping in favor of the party requesting the preliminary injunction.” Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000) (citation omitted); see N. Am. Soccer League, LLC v. United States Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018) (citation omitted). “In order to demonstrate the existence of an irreparable injury, a plaintiff must show that a monetary award will not adequately compensate for his or her injuries.” Lore v. City of Syracuse, No. 00-CV-1833 (HGM/DEP), 2001 U.S. Dist. LEXIS 26942, *12 (N.D.N.Y. Mar. 9, 2001). With respect to the likelihood of success on the merits, the moving party’s burden depends on whether it is seeking a prohibitory or mandatory injunction. “‘Prohibitory injunctions maintain the status quo pending resolution of the case; mandatory injunctions alter it.’” New Horizons Educ. Corp. v. Krolak Tech. Mgmt. of Syracuse, LLC, No. 5:18-CV-01223 (BKS/DEP), 2018 U.S. Dist. LEXIS 180550, *18 (N.D.N.Y. Oct. 22, 2018) (Sannes, J.) (quotation omitted). There is a heightened burden for mandatory injunctions, such that “‘the movant must show a “clear” or “substantial” likelihood of success’ on the merits.” New York Civ. Liberties Union v. New York City Transit Auth., 684 F.3d 286, 294 (2d Cir. 2011) (quotation omitted). Although the parties dispute whether the Court should analyze Plaintiffs’ request for a preliminary injunction under a mandatory or prohibitory standard, the Court finds that it need not address this issue because Plaintiffs have failed to meet their burden under the lower of the two standards, as discussed below. Finally, if the Court considers the balance of hardships, it “‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.’” Main St. Baseball, LLC v. Binghamton Mets Baseball Club, Inc., 103 F. Supp. 3d 244, 262 (N.D.N.Y. 2015) (Hurd, J.) (quoting Winter v. NRDC, Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)). Plaintiffs argue that, as they prepare for the 2022 basketball season, Defendant Corporation will continue to cause them extensive damages by using the Albany Patroons trademark and interfering with Plaintiffs’ businesses. See Dkt. No. 16-1, Pls’ Motion in Support of Preliminary Injunction, at 5-6. As to their likelihood of success on the merits, Plaintiffs’ merely assert that the core issues underlying their request for preliminary injunctive relief are the core issues that underlie their causes of action, which should be decided after a full trial. See id. at 7. Plaintiffs also generally rely on the facts set forth in Michael Corts’s affidavit. See id. Corts describes himself as the Chief Operating Officer and General Manager of Plaintiff Albany Basketball & Sports Corp., Vice President of Plaintiff Albany Patroons, Inc., and General Manager of the Albany Patroons basketball team. See Dkt. No. 16-2 at 2. Corts asserts that, since 2005, Albany Patroons merchandize has been for sale at the Armory gift shop, which is owned by Plaintiff Albany Basketball & Sports Corp., and signage for the Albany Patroons has been visibly posted inside and outside of the Armory that entire time. See id. at
