In Florida, some courts routinely issue injunctions like they are business as usual. But the law is not supposed to work that way. The United States Court of Appeals for the Eleventh Circuit has repeatedly held that that a preliminary injunction is an extraordinary and drastic remedy. See Canal Authority, 489 F.2d at 572. The movant bears the burden of persuasion as to each element of the preliminary injunction test.
Preliminary Injunction Standard
A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). Although each of these factors is important, the most important factor is irreparable harm. This brings us to an issue that frequently arises in preliminary injunction cases: Delay.
Take a trademark case. The plaintiff sends the prospective defendant a cease and desist letter. The defendant sends back a response denying any infringement. The plaintiff sits on it for a few months. Eventually, the plaintiff files a lawsuit. And as expected, the plaintiff tells the court that it needs an injunction because otherwise the world will explode. That’s exactly what happened in a recent trademark dispute in the Southern District of Florida that wound up on appeal in the Eleventh Circuit.
Wreal LLC provides streaming video content for websites. In 2008, Wreal registered the mark FyreTV with the Patent & Trademark Office. They then began offering streaming internet pornography through their FyreTV service. That’s right: FyreTV is streaming porn service. In 2011, Amazon started using the term “Fire” in connection with its Kindle tables (e.g. Kindle Fire). In 2014, Amazon launched Amazon Fire TV.
Now here’s where things get screwy: In April 2014, Wreal filed a lawsuit against Amazon under the Lanham Act for trademark infringement. Ok, so there’s no delay here. Amazon launched Fire TV and Wreal immediately sued. We’re good on that front. You would reasonably expect Wreal to immediately move for a preliminary injunction. But they did not.
Instead, Wreal litigated the case for five months. Then, in late September 2014, they sought a preliminary injunction. Let’s start with the merits: Wreal’s underlying trademark infringement claim was pretty weak. Who is going to confuse FyreTV with Amazon Fire TV? Not me. Seriously: FyreTV is a streaming pornography service with probably a relatively small following. Amazon Fire TV is, well, Amazon TV. Nobody is confused.
Not only did Wreal’s lawyers pursue a near bogus trademark infringement claim, they also messed up royally by waiting five months to seek an injunction. The trial court denied Wreal’s motion for a preliminary injunction. The court found that Wreal couldn’t meet ANY of the injunction factors. Talk about losing across the board. On appeal, the Eleventh Circuit affirmed the trial court’s ruling. The Eleventh Circuit paid special attention to the issue of delay in seeking an injunction. In relevant part, the appellate court noted
Both in the district court and on appeal, Wreal has failed to offer any explanation for its five-month delay. Nor can we discern from the record any justification for the delay that would suggest that the district court made an error in judgment by pointing to the delay to find a lack of imminent irreparable harm. In fact, as the district court observed, the preliminary-injunction motion relied exclusively on evidence that was available to Wreal at the time it filed its complaint in April 2014.
That’s called the Eleventh Circuit (rightfully) handing a litigant their hat. The logic is simple and compelling: In seeking the extraordinary remedy of a preliminary injunction, the party must demonstrate irreparable harm. A situation probably does not threaten irreparable harm when a litigant kicks back and waits five months to move for an injunction.
The takeaways are obvious:
- Don’t file bogus trademark claims. It does not protect your brand. It just wastes money and makes you look stupid.
- Don’t litigate cases like a hypocrite. If you’re going to claim that you’re facing irreparable harm, then act like it. If there’s any chance that you’re going to seek injunctive relief, do it immediately.
Jonathan Pollard is a competition lawyer based in Fort Lauderdale, Florida. His office can be reached at 954-332-2380.