Litigants seeking a preliminary injunction are well aware of the Winter factors: likelihood of success on the merits, likelihood of irreparable harm, the balance of equities, and the public interest. Winter v. NRDC, Inc., 555 U.S. 7 (2008). The interrelation between these factors is often less clear. Pom Wonderful, producer of premium pomegranate beverages, ran into a snag when attempting to prevent Pur Beverages' use of "pom" in its "pur pom" energy drink. Pom Wonderful LLC v. Pur Beverages LLC, No. 2:13-cv-06917, Dkt. No. 68 (C.D. Cal. Aug. 6, 2015). The Ninth Circuit had already determined that there was a likelihood of consumer confusion for use of the exact same word mark "pom" in the similar product space of pomegranate-related drinks. Pom Wonderful LLC v. Hubbard, 775 F.3d 1118 (9th Cir. 2014). But while actual confusion may show that future irreparable harm is likely, Pom Wonderful only had evidence of potential confusion. Pom Wonderful's speculation regarding harm was insufficient. This showcases the value of developing survey evidence or other concrete data early in litigation when seeking a preliminary injunction. And if the parties do not directly compete, it will be valuable to also develop evidence that customers use both products to nudge potential harm into likely harm.
Even without such concrete evidence, there are other tactics to convert a seemingly potential harm into a likely one. Pom Wonderful argued that its brand message of "purity and healthfulness" would be damaged by the cheaper "pur pom", which has no pomegranate juice, only pomegranate flavoring. The court dismissed this argument as supported by no evidence that harm to reputation or goodwill would follow an association with "pur pom". Pom Wonderful's declaration represented that its customers value taste and health. But Pom Wonderful had no evidence that "pur pom" was unhealthy or that energy drinks were not associated with good taste or health. Pom Wonderful had no evidence that its customers had even heard of "pur pom", let alone evidence that Pom Wonderful had suffered brand damage. Having evidence of brand damage would require actual damage at the preliminary injunction stage. But Pom Wonderful had other choices. It could have developed evidence that consumers do not think of energy drinks as healthy or tasty. It could have developed evidence that its consumers have received "pur pom" advertising. Pom Wonderful could likely have found some support for either of these through basic searches. Alternatively, Pom Wonderful could have reframed the damage to its messaging. Pom Wonderful could have argued that rebranding "pom" to focus on the flavor rather than the substance of the beverage damages Pom's goodwill. This would have eliminated Pom Wonderful's need for evidence regarding what consumers think of "pur pom". It could be worth spending time at the outset to develop a theory of brand damage that relies more on the nature of the competing product itself than on consumer reaction to that product. Your shortened declaration will thank you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
