E! Entertainment Televison, in v. Entertainment One Gp Limited

FILED
NOT FOR PUBLICATION JAN 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
E! ENTERTAINMENT TELEVISON, No. 09-55937
INC., a Delaware corporation,
D.C. No. 2:09-cv-01778-R-RC
Plaintiff - Appellant,
v. MEMORANDUM *
ENTERTAINMENT ONE GP LIMITED,
a Canada corporation, DBA E1
Entertainment; E1 TELEVISION
PRODUCTIONS, LTD., a Canada
corporation, DBA E1 Television, DBA E1
Television International; E1 FILMS
CANADA, INC., a Canada corporation
DBA E1 Films; E1 ENTERTAINMENT
GP LLC, a Delaware limited liability
company; E1 ENTERTAINMENT U.S.
LP, a Delaware limited partnership,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 7, 2009
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON and PAEZ, Circuit Judges, and MAHAN, ** District Judge.
Plaintiff-Appellant E! Entertainment Television, Inc. (“E!”) appeals the
district court’s denial of its motion for a preliminary injunction against Defendant-
Appellee Entertainment One GP Limited. This court reviews the denial of a
preliminary injunction for abuse of discretion. Am. Trucking Ass’ns, Inc. v. City of
Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). We have jurisdiction under 28
U.S.C. § 1292(a)(1), and we affirm.
E! argues that the district court erred in finding that E! failed to
demonstrated a likelihood of success on the merits of its federal trademark
infringement claim under 15 U.S.C. § 1114. In order to show a probability of
success in a cause of action for trademark infringement, an appellant must show
that a likelihood of confusion exists. Sardi’s Restaurant Corp. v. Sardie, 755 F.2d
719, 723 (9th Cir. 1985). We “review the district court's determination of
likelihood of confusion for clear error.” Reno Air Racing Ass’n, Inc. v. McCord,
452 F.3d 1126, 1135 (9th Cir. 2006). Having reviewed the district court’s
application of the Sleekcraft factors, see AMF, Inc. v. Sleekcraft Boats, 599 F.2d
**
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
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341 (9th Cir. 1979), we conclude that the district court did not clearly err in finding
there is no likelihood of confusion between the parties’ marks.
E! also argues that the district court erred in finding that E! did not
demonstrate a likelihood of success on its claim under 15 U.S.C. § 1125(c). We
have held that a party seeking relief under 15 U.S.C. § 1125(c) must demonstrate
that the marks are “identical, or nearly identical,” so that a “significant segment of
the target group of customers sees the two marks as essentially the same.” Thane
Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 906 (9th Cir. 2002) (quoting
Playboy Enterprises, Inc. v. Welles, 279 F.3d 796, 806 n.41 (9th Cir. 2002)). We
conclude that the district court did not err in finding that the parties’ respective
marks are not nearly identical under this standard. Cf. Thane, 305 F.3d at 907
(concluding that a reasonable finder of fact could find “Trek” and “OrbiTrek”
identical or non-identical for dilution purposes).
Having concluded that the district court did not abuse its discretion in
finding that E! failed to demonstrate a likelihood of success on the merits of its
infringement or dilution claims, we need not address the remaining three factors of
the preliminary injunction inquiry. See Winter v. Natural Res. Def. Council, Inc.,
--- U.S. ----, 129 S. Ct. 365, 374 (2008); Marlyn Nutraceuticals, Inc. v. Mucos
Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir. 2009).
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All pending motions are denied as moot.
AFFIRMED.
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