2d Circuit: no irreparable injury where website tracks clicks to buy

Carson Optical, Inc. v. Alista Corp., No. 19-2509, --- Fed.Appx. ----, 2020 WL 1683460 (Mem) (2d Cir. Apr. 7, 2020)

Interesting—the Second Circuit approves the district court’s reasoning that online sales can be tracked perfectly, and thus financial harm from false advertising is not irreparable. Carson sued to enjoin defendants from advertising magnifying mirrors on Carson Optical’s product pages on Amazon.com. The district court relied on a declaration that “Amazon’s tracking of clicks on Defendants-Appellees’ advertisements on Carson Optical’s Amazon webpage would provide a basis to estimate Carson Optical’s losses from the purportedly false advertisements.”  This was enough to show that the general proposition that “[i]t is virtually impossible to prove that so much of one’s sales will be lost or that one’s goodwill will be damaged as a direct result of a competitor’s advertisement.” Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 316 (2d Cir. 1982), was in applicable. Carson “failed to show why the data referred to by the declaration would not provide a reasonable starting point for a suitable damages analysis.”  [Query whether under the proposed reversal of eBay to restore a presumption of irreparable injury in trademark cases, this declaration could have rebutted such a presumption.]

The court of appeals further noted that the challenged ads didn’t explicitly refer to Carson’s mirrors, or compare defendants’ mirrors to Carson’s; they were just allegedly false. The district court thus didn’t clearly err in finding no irreparable injury.