BidZirk, LLC v. Smith ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1487
BIDZIRK, LLC,
Plaintiff - Appellant,
and
DANIEL G. SCHMIDT, III; JILL PATTERSON,
Plaintiffs,
versus
PHILLIP J. SMITH,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:06-cv-00109-HMH-WM)
Submitted: February 12, 2007 Decided: March 6, 2007
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin Morgan Elwell, Greenville, South Carolina, for Appellant.
Phillip J. Smith, Appellee Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
BidZirk, LLC, Daniel G. Schmidt, III, and Jill Patterson
filed a complaint in federal district court alleging Phillip J.
Smith’s articles on his internet web log violated the Federal
Trademark Dilution Act and state law. BidZirk moved for
preliminary injunctive relief pursuant to 15 U.S.C. § 1116(a)
(2000). Adopting the magistrate judge’s recommendation, the
district court denied a preliminary injunction, and BidZirk
appealed.
We review the grant or denial of a preliminary injunction
for abuse of discretion, “recognizing that preliminary injunctions
are extraordinary remedies involving the exercise of very far-
reaching power to be granted only sparingly and in limited
circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d
335, 339 (4th Cir. 2001). A district court abuses its discretion
when it applies an incorrect preliminary injunction standard, rests
its decision on a clearly erroneous finding of material fact, or
misapprehends the law with respect to underlying issues in
litigation. Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel,
872 F.2d 75, 78 (4th Cir. 1989).
In determining whether a preliminary injunction is
appropriate, we consider four factors: (1) the likelihood of
irreparable harm to the plaintiff if the preliminary injunction is
denied; (2) the likelihood of harm to the defendant if the
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requested relief is granted; (3) the likelihood the plaintiff will
succeed on the merits; and (4) the public interest. Rum Creek Coal
Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991). “[T]he
balance of harm evaluation should precede the determination of the
degree by which the plaintiff must establish the likelihood of
success on his part.” Direx Israel, Ltd. v. Breakthrough Med.
Corp., 952 F.2d 802, 813 (4th Cir. 1991).
If, after balancing the irreparable harm to the plaintiff
against the irreparable harm to the defendant, the balance tips
“decidedly” in the favor of the plaintiff, a preliminary injunction
would be appropriate if the plaintiff “raised questions going to
the merits so serious, substantial, difficult and doubtful, as to
make them fair ground for litigation and thus for more deliberate
investigation.” Id. at 812-13. If the balance tips away from the
plaintiff toward equivalency, the plaintiff must demonstrate its
entitlement to a preliminary injunction with “a very clear and
strong case,” because “if there is doubt as to the probability of
plaintiff’s ultimate success on the merits, the preliminary
injunction must be denied.” Id. at 813.
In light of these principles, we find no abuse of
discretion and we affirm the district court’s order denying a
preliminary injunction. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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