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