Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc.

Likelihood of irreparable harm had to be established, rather than presumed, by the plaintiff seeking injunctive relief.

Opinion (McKeown): The district court granted a preliminary injunction against Larry Marshak and his company Florida Entertainment Management, Inc. (collectively "Marshak"), in favor of Herb Reed Entertainment ("HRE"). HRE manages Herb Reed's business affairs and holds his rights. Marshak appealed the injunction. Marshak made the argument, inter alia, that the court erred in finding a likelihood of irreparable harm. The trademark at issue was "The Platters," a singing group formed in 1953. As the members left the group they continued to perform under some derivation of the name "The Platters." As a result there has been litigation in multiple jurisdictions among the former members and their current and former managers. Much of the litigation was a result of employment contracts between the members of The Platters and Five Platters, Inc. ("FPI"). Under the contracts, the members had assigned their rights to the name to FPI. Marshak claimed that FPI transferred the rights to Live Gold, Inc. which then transferred the rights to Marshak. The court found that the district court had correctly determined that the Supreme Court decisions in eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) and Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) signaled a shift away from a presumption of irreparable harm when a showing of a likelihood of success on the merits is made. Instead, the district court correctly required HRE to "establish that remedies available at law, such as monetary damages, are inadequate to compensate" for the injury that would arise from Marshak's continued alleged infringement of the mark. However, the court found that the district court abused its discretion because its analysis of irreparable harm was cursory and conclusive. The court REVERSED and REMANDED the case.