Profil Institut fur Stoffwechselforschung GmbH v. Prosciento, Inc.

Filing 35

ORDER denying #29 Motion for Preliminary Injunction, denying as moot #30 Motion to Shorten Time. This order does not prevent ProSciento from seeking a preliminary injunction in the future, in the event it files a complaint or counterclaim. Signed by Judge Larry Alan Burns on 2/27/17. (kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PROFIL INSTITUT FUR STOFFWECHSELFORSCHUNG GMBH, 12 Plaintiff, 13 14 15 CASE NO. 16cv1549-LAB (BLM) ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION; AND vs. ORDER DENYING AS MOOT EX PARTE MOTION TO SHORTEN TIME PROSCIENTO, INC., Defendant. 16 17 18 On February 21, Defendant ProSciento, Inc. (then known as Profil Institute for Clinical 19 Research, Inc.) filed a motion for preliminary injunction along with a motion to shorten time. 20 ProSciento asks the Court to enjoin Plaintiff's use of the American trademark "Profil" in 21 connection with upcoming trade shows. 22 A preliminary injunction is an “extraordinary and drastic remedy” that is not granted 23 unless the movant carries the burden of persuasion by a clear showing. Mazurek v. 24 Armstrong, 520 U.S. 968, 972 (1997). The purpose of a preliminary injunction is to preserve 25 the status quo or prevent irreparable injury pending the resolution of the underlying claim. 26 Sierra On-line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A plaintiff 27 seeking a preliminary injunction must establish (1) it is likely to succeed on the merits; (2)it 28 is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of 16cv1549 1 equities tips in its favor and (4) an injunction is in the public interest. Winter v. Natural Res. 2 Def. Council, Inc., 555 U.S. 7, 20, (2008). Under the Ninth Circuit’s alternate test, a plaintiff 3 must, among other things, show at least “serious questions” going to the merits. See Lopez 4 v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012). 5 ProSciento is solely a Defendant both in this case, and in the related case, 16cv2762, 6 Profil Institut v. ProSciento; it has not filed a complaint, claim, counterclaim, or the like in 7 either case. While Profil is bringing claims pertaining to the American “Profil” mark, Profil’s 8 failure to prove its claims would not entitle ProSciento to any relief. Thus, even if ProSciento 9 prevailed on all claims in both cases, it would not be entitled to any relief. 10 Federal courts can issue preliminary injunctions only to the extent they pertain to 11 pending underlying claims — in other words, where the preliminary injunction would 12 temporarily grant the same kind of relief as the underlying claims, if successful, would 13 ultimately merit. See Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 14 636 (9th Cir. 2015) (citing De Beers Consol. Mines v. United States, 325 U.S. 212, 220 15 (1945)) (“A preliminary injunction is appropriate when it grants relief of the same nature as 16 that to be finally granted.”) Where, as here, the party is bringing no claims, there is no basis 17 for issuance of a preliminary injunction. And in fact, the Court lacks authority to do so. Id. 18 (quoting DeBeers, 325 U.S. at 220) (holding that, unless the preliminary injunction would 19 grant “relief of the same character as that which may be granted finally,” a district court lacks 20 authority to grant the requested relief). 21 Because the Court lacks authority to grant the preliminary injunction, ProSciento’s 22 motion is summarily DENIED. The motion to shorten time is DENIED AS MOOT. This order 23 does not prevent ProSciento from seeking a preliminary injunction in the future, in the event 24 it files a complaint or counterclaim. 25 IT IS SO ORDERED. 26 DATED: February 27, 2017 27 28 HONORABLE LARRY ALAN BURNS United States District Judge 16cv1549

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