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District Court Denies Motion for Preliminary Injunction Where the Plaintiff Did Not Show Specific Facts of Lost Sales or Injury to Goodwill

Plaintiff, D Now, Inc. (D-Now), obtained an exclusive license to U.S. Patent No. 8,795,020, which claims a bubble blowing tube. D Now filed a patent infringement action against defendants TPF Toys Limited and TPF Toys LLC (collectively “TPF”). As explained by the district court, “[b]oth parties sell the bubble blowing tube in bouncing bubble kits, wherein the consumer can blow a bubble with the tube then use either gloves (in D Now’s product) or paddles (TPF’s product) to bounce the bubble.”

D Now filed a motion for preliminary injunction to prevent TPF from selling its allegedly infringing product. In ruling on the motion, the district court noted that “[t]o grant a preliminary injunction, the Court must consider four factors: (1) the likelihood of plaintiff’s success on the merits; (2) whether plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) whether the balance of equities tips in favor of granting an injunction; and (4) whether an injunction is in the public interest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008).

The district court also noted that the Ninth Circuit has adopted a sliding scale approach, “outlined in Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011). Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another. Id. However, the Court is mindful that a preliminary injunction is an extraordinary remedy, never awarded as of right. Winter, 555 U.S. at 20.”

The district court then concluded that D Now had not presented sufficient evidence of its likelihood of suffering irreparable harm. The district court stated that although “D Now argues that it is currently suffering a loss because TPF is a direct competitor,” it is able to sell its product for less.” D Now also asserted that “there is a loss of goodwill with consumers because TPF’s bubble blower has a defect which renders it unsafe.” But the district court found that D Now had not presented “evidence of the volume of loss from the competition or loss of goodwill. It submitted no specific numbers suggesting any loss of sales since TPF came on the market. It also presented no evidence that any consumer was concerned about the safety of the bubble blower, attributed the defective bubble blower to D Now, or chose not to purchase from D Now because of TPF’s defective bubble blower.”

As a result, the district court denied the motion because D Now had not established irreparable harm and because “D Now’s alleged harm can be compensated with monetary damages.”

D-Now, Inc. v. TPF Toys Limited,
Case No. 16-cv-03792-NC (N.D. Cal. Nov. 23, 2016)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or