Wednesday, October 29, 2014

Just in time for Halloween: this should make TM owners shiver

The Ninth Circuit is not kidding about not presuming irreparable harm in trademark cases.

Titaness Light Shop, LLC v. Sunlight Supply, Inc., No. 13-16959 (9th Cir. Oct. 9, 2014)

Sunlight uses “Titan Controls” for devices that control indoor gardening equipment. Titaness Light Shop (TLS) began marketing indoor grow lighting systems under the mark “Titaness.”  The court of appeals reversed the district court’s grant of a preliminary injunction as an abuse of discretion, given that such an injunction is an extraordinary remedy that requires a clear showing of entitlement to such relief.

The problem was irreparable harm, as to which conclusory or speculative allegations are not enough.  Irreparable harm can include harm to reputation and goodwill, but evidence is required, not mere platitudes.  Here, Sunlight “Sunlight simply asserted to the district court that its goodwill and reputation would be irreparably harmed because TLS’s Titaness products were being sold by a website that supposedly catered to marijuana growers, while Sunlight had worked hard to ensure that its products were not marketed to marijuana growers.”  Yet Sunlight didn’t show actual or likely harm.  It didn’t show that its customers were aware of the relevant website; would associate products sold by the site with marijuana; or disliked marijuana enough to stop buying Sunlight products if they mistakenly perceived a link to marijuana.  Indeed, Sunlight was, at the time the appeal was argued, actually selling on that site as well.  

 Money quote: “The fact that Sunlight’s reputation might be harmed by the marketing of TLS’s products did not establish that irreparable harm to Sunlight’s reputation is likely.”

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