Derma Pen, LLC v. 4EverYoung Ltd.

Summarized by:

  • Court: Intellectual Property Archives
  • Area(s) of Law: Trademarks, Preliminary Injunctions
  • Date Filed: 12-09-2014
  • Case #: No. 13-4157
  • Judge(s)/Court Below: United State Court of Appeals, Tenth Circuit
  • Westlaw Citation: 2014 WL 6892723
  • Full Text Opinion

The court of appeals for the 10th Circuit will issue a grant for a preliminary injuction when a party can show that they established a likelihood of success on the merits.

(Bacharach) The owner of the DermPen trademark under a distribution agreement brought an action alleging trademark infringement and unfair completion under the Lanham Act and seeking a preliminary injuction against 4EverYoung, a distributor of needling devices. The lower court found for 4EverYoung and the trademark owner appealed. In order to receive a preliminary injunction the party seeking the injunction must prove that (1) it is likely to succeed on the merits; (2) the denial of the injunction would result in irreparable harm; (3) a balancing of equities favors the injunction; and (4) an injunction is consistent with public interest. A federal court will reverse the denial of a preliminary injunction only if the party seeking the injunction shows that the lower court abused its discretion. In this instance DermaPen showed that it was likely to prevail on the merits due to the international distributor’s use of the trademark within the United States in violation of the distribution agreement. DermaPen presented evidence of continued ownership of the trademark suggesting that even if the owner had breached the distribution agreement 4EverYoung would have only gained a right to purchase, not a ownership right under the Lanham Act. The Court of Appeals for the 10th Circuit found that the trademark owner had established a likelihood of success on the merits and issued an injunction.

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