Thursday, April 28, 2022

Another case finds that delay still rebuts presumption of irreparable harm

Harley’s Hope Found. v. Harley’s Dream, 2022 WL 1154526, No. 22-cv-0136-WJM-STV (D. Colo. Apr. 19, 2022)

Harley’s Hope launched in 2010; it owns a 2021-issued registration for “HARLEY’S HOPE FOUNDATION,” for “Charitable foundation services, namely, providing financial support to pet parents for veterinary assistance and programs” and a 2012 Colorado state registration.

In 2016,  Defendant began using the names “HARLEY’S HOUSE OF HOPE” and “HARLEY’S DREAM,” in connection with its charitable organization providing financial services for pets and pet owners and educational services. This has produced confusion since the beginning.

Harley’s Hope contended that, although it first became aware of consumer confusion in 2017, it did not learn until March 2019 that it was Defendant’s use of Harley’s Mark that was the source of the confusion. It continued to respond to confused consumers from 2019 to 2022. It sent a C&D in mid-2021 and sued in January 2022.

Its delay (nearly three years counting from March 2019, eight months after sending a C&D) defeated the presumption of irreparable harm; the court specifically endorsed pre-TMA precedent that delay, including much shorter delays than this, rebuts the presumption. “It may well be true that Plaintiff spent much of the past three years investigating its trademark infringement claims and attempting to informally resolve the matter; however, such contentions do not alter the Court’s conclusion that Plaintiff is not entitled to a statutory presumption of irreparable harm based on Plaintiff’s delay.”

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