Choppers, Inc. v. Ruskin C. Passaro , 159 F. App'x 74 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11151 November 18, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-01804-CV-ORL-22-JGG
CHOPPERS, INC.,
WILLIAM DAVID LANE,
Plaintiffs-
Counter-Defendants-
Appellants,
versus
RUSKIN C. PASSARO,
JENNA SCIMONE,
FACTORY DEFECT, INC.,
SOUTHEAST APPAREL, INC.
Defendants-
Counter-Claimants-
Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 18, 2005)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
On December 10, 2004, the plaintiffs, William David Lane and Choppers
Inc., filed a complaint against the defendants, Ruskin C. Passaro, Jenna Scimone,
Factory Defect, Inc., and Southeast Apparel, Inc., seeking damages and a
preliminary injunction. The plaintiffs sought to prevent the defendants from
selling clothing that allegedly displayed the plaintiffs’ trademarks and copyrighted
artwork. The plaintiffs asserted several federal claims against the defendants:
passing off, false designation of origin, and false description, in violation of 15
U.S.C. § 1125(a)(1); dilution of a famous mark, in violation of 15 U.S.C.
§ 1125(c); and copyright infringement, in violation of 17 U.S.C. § 106 et seq.
Additionally, the plaintiffs asserted several claims based on Florida law: trade
name infringement; injury to business reputation and dilution; unauthorized
publication of name or likeness; unfair competition; misappropriation; and tortious
interference with prospective business relations.
On January 31, 2005, the district court denied Lane’s and Choppers’ motion
for a preliminary injunction. The district court held that the plaintiffs had failed to
show a substantial likelihood of success on the merits of their claims and had
failed to show that they would suffer irreparable injury if the injunction was not
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issued. The plaintiffs appeal the denial of their motion for a preliminary
injunction. This Court has jurisdiction under 28 U.S.C. § 1292(a)(1).
To obtain a preliminary injunction, Lane and Choppers must show that: 1)
they have a substantial likelihood of success on the merits of at least one of the
causes of action they have asserted; 2) they will suffer irreparable injury if the
injunction is not issued; 3) the threatened injury outweighs whatever damage the
proposed injunction may cause to the defendants; and 4) if issued, the injunction
would not be adverse to the public interest. See Siegel v. Lepore, 234 F.3d 1163,
1178 (11th Cir. 2000) (en banc).
We generally review a district court’s denial of a motion for a preliminary
injunction only for an abuse of discretion. See Delta Air Lines, Inc. v. Air Line
Pilots Ass’n, Int’l, 238 F.3d 1300, 1308 (11th Cir. 2001). Determinations of law
made in the course of denying a preliminary injunction are reviewed de novo.
Bailey v. Gulf Coast Transp., Inc., 280 F.3d 1333, 1335 (11th Cir. 2002).
Findings of fact are reviewed for clear error. Cumulus Media, Inc., v. Clear
Channel Commc’ns, 304 F.3d 1167, 1171 (11th Cir. 2002).
On appeal, Lane and Choppers argue that the district court erred when it
found that 1) the plaintiffs did not show a likelihood of success on the merits of
their case; 2) the defendants may have been entitled to deal with the goods at
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issue; and 3) the plaintiffs did not show that they would suffer irreparable harm
without the requested injunction. Lane and Choppers deny the existence of any
license agreement between them and the defendants.
The district court did not abuse its discretion in denying Lane’s and
Choppers’ motion for a preliminary injunction, based on its reasoning that:
“[f]rom the evidence and arguments presented, the Court cannot determine
whether Defendants are actually violating Plaintiffs’ rights, or whether, instead,
this case involves a soured business arrangement under which Defendants retain
some rights to deal with the goods at issue.”
The plaintiffs presented to the court an affidavit from Lane, which states
that Passaro acquired the plaintiffs’ goods from the manufacturer and resold them
to the plaintiffs at a profit, without Lane’s knowledge or consent. Lane’s affidavit
further states that Scimone used Choppers’ Internet store to set up wholesale
accounts without Lane’s knowledge or consent. The defendants presented
affidavits from Passaro and Scimone, which state that Passaro created Southeast
Apparel and Factory Defect in contemplation of a business agreement with the
plaintiffs’ knowledge and consent. The defendants also submitted a copy of a
photograph posted on the plaintiffs’ Web site, in which Scimone models one of the
plaintiffs’ shirts. Given the conflicting evidence, the district court did not abuse
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its discretion in finding that the plaintiffs have not a shown a likelihood of success
on the merits of their case. The plaintiffs may prevail at trial, but that remains to
be seen.
AFFIRMED.
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