J. BLAINE ANDERSON, Circuit Judge:
This is an appeal from the grant of a preliminary injunction.
The plaintiff, Miss Universe, Inc. (referred to as Miss Universe), is the owner of the trademark and service mark Miss U.S.A.
The defendants include: William and Fran Flesher, who are officers of the Treehouse Fun Ranch, Inc., as well as managing agents of the Treehouse's beauty pageant; the Treehouse corporation; and Mel Lynn, director of the 1977 pageant. The beauty pageant sponsored by Treehouse is variously
The district court made the following factual findings about the two pageants:
Miss Universe, Inc. v. Flesher, 433 F.Supp. 271, 272-273 (C.D.Cal.1977).
In July 1976, having learned of the defendants' contest, the plaintiff asked the defendants to desist from using the Miss Nude U.S.A. title. After the attempts at informal resolution of the controversy proved fruitless, the plaintiff brought the present action for infringement in district court.
STANDARD OF REVIEW
As a general rule, the grant or refusal to grant a preliminary injunction will be overturned on appeal if there has been
While the parties pay lip service to the standard of review, both the plaintiff and the defendant attempt to try the merits of their respective cases in this court. They invite this court to make the initial findings,
The Court of Appeals does review factual findings; however, we do not generally serve as fact-finders of first instance. Our review of factual issues is governed by carefully circumscribed standards which vary according to the type, stage, and nature of the previous proceedings. After a final decision on the merits, we can closely examine the different variables which are relevant to the likelihood of confusion determination. See AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979).
In cases such as the present one, in granting a preliminary injunction, the parties will not have had a full opportunity to either develop or present their cases and the district court will have had only a brief opportunity to consider the different factors relevant to the likelihood of confusion determination.
In determining whether there was an abuse of discretion in granting the preliminary injunction we look to see whether the court below correctly applied the proper
In our previous decisions, this court has announced two legal standards applicable to the grant or denial of preliminary injunctions. See Jones v. Pacific Intermountain Express, 536 F.2d 817, 818-819 (9th Cir. 1976); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir. 1975). At first glance these standards may appear entirely different; nonetheless "they are merely extremes of a single continuum." Benda, supra, 584 F.2d at 315. On the one end of the scale we require the moving party to show (1) probable success, and (2) the possibility of irreparable injury. Benda, supra, 584 F.2d at 314-315; Jones, supra, 536 F.2d at 818-819. On the other end, the moving party is required to demonstrate (1) that serious questions are raised, and (2) that the balance of hardships are tipped sharply in his favor. Benda, supra, 584 F.2d at 314-315; William Inglis & Sons Baking Co., supra, 526 F.2d at 88. Our review is thus confined to these matters.
The court below found that the plaintiff had and would continue to suffer irreparable harm so long as the defendants continued to use the names Miss Nude U.S.A. or Ms. Nude U.S.A. Additionally, the balance of equities favored the restraint of the defendants' use of the above names. The court noted that the plaintiff had a substantial investment which had been made "over many years in its well-known and highly regarded registered marks." On the other hand, the investment of the defendants in the Miss Nude U.S.A. and Ms. Nude U.S.A. names was found "de minimis." We do not believe that the district court abused its discretion in finding either irreparable harm or that the balance of hardship favored granting the injunction in favor of the plaintiff.
The court below did not expressly state that the plaintiff would probably succeed on the merits or that the case presents a serious question. Nevertheless, these determinations are implicit in the court's conclusion that there was "inherent confusion of source and dilution of plaintiff's registered marks in defendants' use of the marks MISS NUDE U.S.A. and MS. NUDE U.S.A. in connection with the promotion of a beauty pageant." We are able to infer that the court below found the case at least presented a serious question. To satisfy this, the moving party need only show either a fair chance of success on the merits or that the question is serious enough to require litigation. Benda, supra, 584 F.2d at 315. This has been met in the present case.
We conclude that the district court did not abuse its discretion in granting the preliminary injunction.
Nonetheless, we are still left with both parties' objections to the fourth paragraph of the injunction.
Plaintiff contends that it is impossible to comply with the hyphen requirement. In addition, Miss Universe claims that this part of the injunction effectively negates the protection which the injunction affords to what the district court found were its weighty interests in the Miss U.S.A. name. We agree.
In light of the previously discussed findings by the district court on the seriousness of the question presented, the balancing of the equities, the possibility of irreparable harm, and the arguments by both parties, we believe that the hyphen requirement in the temporary injunction was an abuse of discretion. Paragraph 4 is inconsistent with the findings made by the district court. It negates whatever protection the injunction would otherwise provide, which, after all, is the very reason for a temporary injunction.
We hold that the hyphen requirement contained in paragraph 4 of the injunction was an abuse of discretion. We hold that the granting of the preliminary injunction itself was not an abuse of discretion. The preliminary injunction as modified by eliminating paragraph 4 is affirmed. This case may now proceed to a trial on the merits. We remand to the district court for further proceedings.
In addition, Miss Universe also owns the service marks to:
599 F.2d at 348-349. This list is by no means exclusive or exhaustive; other variables come into play depending on the facts of the particular case. Id. at n.11. When the merits of this case are tried, we are confident that these matters will be given full consideration.
Love v. Atchison, T. & S. F. Ry. Co., 185 F. 321, 331 (8th Cir. 1911), cert. denied, 220 U.S. 618, 31 S.Ct. 721, 55 L.Ed. 612, quoted with approval in Burton v. Matanuska Valley Lines, 244 F.2d 647, 651 (9th Cir. 1957), and William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir. 1975).
This also appears as paragraph 6 of the court's conclusions of law. 433 F.Supp. at 274-275.