Friday, June 22, 2018

seeking monetary damages can undercut irreparable harm claim

Rush v. Hillside Buffalo, LLC, --- F.Supp.3d ----, 2018 WL 2999905, No. 18-CV-00653 EAW (W.D.N.Y. Jun. 15, 2018)

Rush, pro se, alleged that he owned a registered trademark for “Crash-a-Rama,” an event “featuring men and women running old junk cars in exciting and entertaining events.” He alleged that he operated Crash-A-Rama at the Holland International Speedway for eighteen years. Hillside Buffalo recently acquired the Speedway, and offered their own “Crash-O-Rama” event. The court declined to issue a TRO enjoining it (it was scheduled for the day after the opinion issued) but allowed claims to proceed.

Irreparable harm: conclusory statements about irreparable harm aren’t enough without proof that monetary damages wouldn’t be a sufficient remedy.  It is true that “[i]rreparable harm ‘exists in a trademark case when the party seeking the injunction shows that it will lose control over the reputation of its trademark pending trial,’ because loss of control over one’s reputation is neither ‘calculable nor precisely compensable.’”  Still,  “conclusory statements of loss of reputation will not justify an irreparable harm finding.” Notably, Rush sought damages as compensation.  When there’s only been one event, it was unclear why money damages couldn’t be assessed based upon the number and price of the tickets and concessions sold, the number of patrons diverted, or any other revenue.

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