Preliminary Injunction - David vs. Goliath

Conair Corporation has substantial rights to U.S. Patent Nos. 8,607,804 and 8,651,118 (and its subsidiary owns Design Patent D696,456) relating to a hair styling device.  Conair sold approximately one million of these devices in 2013 and projects that it will sell approximately two million this year (2014).  Barbar, Inc apparently made 2,500 hair styling devices that bear a resemblance to Conair's.  

On May 30, 2014, Conair sought a temporary restraining order to prevent Barbar from displaying the allegedly infringing device at a trade show in Orlando the next day.  The Court denied that motion and converted it into a motion for preliminary injunction.  In denying the TRO, the Court noted:

Patent cases are notoriously complex. See Minemyer v. B-Roc Representatives, Inc., 07 C 1763, 2010 WL 3787093 (N.D. Ill. Sept. 21, 2010) aff'd sub nom. Minemyer v. R-Boc Representatives, Inc., 515 F. App’x 897 (Fed. Cir. 2013) (noting that patent cases are more time- consuming and are more taxing on judicial resources than most civil cases). In this instance, the Plaintiffs ask the Court to determine in less than a day that they have a substantial likelihood of success on a patent case involving three patents, unfair competition, and an alleged violation of trade dress. Simply put, less than twenty-four hours is too little time for a Court to make a reasoned and reflective determination as to whether Plaintiffs have a substantial likelihood of succeed on such a complex matter.

Conair Corp. v. Barbar, Inc, Case No. 6:14-CV-831 (M.D. Fla. May 30, 2014) (J. Presnell).  The parties moved onto a preliminary injunction.  The Court held an evidentiary hearing and ultimately concluded a preliminary injunction was not warranted because of the significant difference in the parties' respective sizes:

The Plaintiffs' theory of irreparable harm is that they will suffer price erosion and that their reputation and product's reputation will be tarnished. (See Doc. 2–1 at 6–7). As to price erosion, a competitor whose sales would represent less than .2% of the Plaintiffs projected sales for this year is not a significant threat to the Plaintiffs' price point. Moreover, the testimony at the evidentiary hearing showed that the Defendants' two-for-one pricing discount was simply for trade show marketing purposes and does not represent the regular pricing of the Defendants' product. (See Doc. 30 at 32:16–33:7 (describing receipt for two of Defendants' products for total cost of $100)). That limited marketing effort does not represent an intent to presently compete with the Plaintiffs' product at a dramatically lower price. 

With respect to the representational injury to the Plaintiffs' product, the evidence was mixed and none of the negative reviews could be clearly traced to any alleged faults with the Defendants' product. (See Docs. 1–1, 1–3 (attachments to Complaint showing positive reviews of Plaintiffs' product); Docs. 21–3. 21–4, 21–5, 21–6 (showing negative reviews of Plaintiffs' product). Further, even assuming that representational harm can be traced to the Defendants' product, the volume of Defendants' sales is de minimis. See Am. Beverage Corp. v. Diageo N. Am., Inc., 936 F.Supp.2d 555, 615 (W.D.Pa.2013) (addressing where large sales volume supported lack of irreparable harm upon showing of fault with allegedly infringing product). Accordingly assertions that the Defendants' product would be tarnished in a non-compensable manner are speculative.

Motion for preliminary injunction, denied.

Conair Corp. v. Barbar, Inc., Case No. 6:14-CV-831 (M.D. Fla. July 3, 2014) (J. Presnell)