Trademark Plaintiff Waited Too Long to Douse the Fire

When an opinion opens with “the plaintiff pursued its preliminary-injunction motion with the urgency of someone out on a meandering evening stroll rather than someone in a race against time,” there isn’t much suspense about who’s going to win and why, and the court did indeed affirm the denial of preliminary injunctive relief in Wreal, LLC v., Inc., 2016 WL 6310784 (11th Cir. Oct. 28, 2016).  The court’s opinion, authored by Judge Robin Rosenbaum, offers a refresher on just how difficult it is to overturn a decision on a preliminary injunction.  The plaintiff, the operator of a service called FryeTV that streams exclusively pornography, sued Amazon for trademark infringement and deceptive trade practices for its use of the mark “Fire TV.”  But the plaintiff waited until five months after filing its complaint to move for a preliminary injunction.  The district court judge concluded that the unexplained five-month delay undermined any showing of irreparable injury.  In affirming, the Eleventh Circuit noted that preliminary injunctive relief is premised on the need for urgent action.  The evidence on which the plaintiff relied was available when it filed its complaint, so there was no explanation for the delay.  The court noted that its review of a preliminary injunction decision is necessarily deferential, because the district court must make difficult judgments about the viability of a plaintiff’s claims based on a limited record.

Posted by Tom Byrne.

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