Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1988)

MEMORANDUM^* 

Proton Corporation ("Proton") appeals from an order of the district court denying its motion for a preliminary injunction in Proton's trademark action against Proton America, Inc. ("Proton America"). We have jurisdiction under 28 U.S.C. § 1292 and we affirm.

Since approximately 1982, Proton has sold home and automobile audio electronic equipment, including a line of automobile stereos, under the trademark "Proton." Proton federally registered its mark in 1986. Proton America plans, in 1989, to begin advertising and marketing in the United States an automobile manufactured in Malasia which it intends to call the "Proton Saga." Proton America also plans to market automobile stereos as optional equipment in the Proton Saga.

Proton filed a complaint against Proton America seeking damages and injunctive relief for federal trademark infringement, 15 U.S.C. § 1114(1), and false designation of origin, 15 U.S.C. § 1125(a), and, under California law, for unfair competition, trademark dilution and trademark disparagement. In its motion for preliminary injunction, Proton claimed that Proton America will be infringing its "Proton" mark, thus causing Proton irreparable harm, by importing, marketing and distributing the Proton Saga automobile. By order dated December 7, 1987, the district court denied the motion.

To obtain a preliminary injunction in a trademark case, the moving party must demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party. Sardi's Restaurant Corp. v. Sardie, 755 F.2d 719, 723 (9th Cir. 1985). These are not two distinct tests, but rather are opposite ends of a single "continuum in which the required showing of harm varies inversely with the required showing of meritoriousness." Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987) (quoting San Diego Committee Against Registration & Draft v. Governing Bd. of Grossmont Union High School Dist., 790 F.2d 1471, 1473 n. 3 (9th Cir. 1986)).

In denying Proton's motion for a preliminary injunction, the district court concluded that Proton failed to demonstrate either a probability of success on the merits or that it would suffer irreparable harm were a preliminary injunction not to issue. The district court's decision is reversible only if the court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Pyrodyne Corp. v. Pyrotronics Corp., No. 87-3847 slip op. at 6286 (9th Cir. June 1, 1988). See also California Ex Rel. Van de Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1308, 1316 (9th Cir. 1985) (district court's determination regarding likelihood of irreparable harm is reviewed for an abuse of discretion).

The burden was on Proton to demonstrate a realistic possibility of irreparable harm. Sardi's Restaurant, 755 F.2d at 725. Proton could have accomplished this by demonstrating an imminent threat to its business reputation if the court failed to issue the preliminary injunction. See id. at 724; see also Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521, 526 (9th Cir. 1984) (possibility of irreparable harm created by loss of control over business reputation and loss of good will). Under the facts of the present case, however, Proton has failed to demonstrate a possibility of irreparable harm in the event a preliminary injunction does not issue.

At oral argument, counsel for Proton America stated that Proton America is not due to begin marketing and distributing its automobiles in the United States until sometime in the first quarter of 1989. Counsel for Proton stated at oral argument that discovery in this action has been completed and that the case can be ready for trial in thirty days. Due to the proximity of trial and judgment, which will likely occur by the end of this year, and because it appears that there will be no consumer advertising or sales of the Proton automobile in the United States before judgment in this action is handed down, we conclude that there has been no showing of irreparable harm requiring the issuance of a preliminary injunction at this time. In the event circumstances change and it appears that advertising or introduction of the Proton automobile in the United States is likely to occur prior to trial on the merits, Proton may at that time renew its application for a preliminary injunction.

Because we base this decision on Proton's lack of a showing of immediate necessity for the issuance of a preliminary injunction, we do not reach the issue whether Proton has demonstrated a probability of success on the merits, nor do we find it necessary to comment on any of the other factors which bear upon a court's determination of whether a preliminary injunction should issue.

The order of the district court denying Proton's motion for a preliminary injunction is AFFIRMED.