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Lake Martin Realty, Inc. v. The Lake Martin Real Estate Co., LLC

United States District Court, M.D. Alabama, Eastern Division

May 1, 2019

LAKE MARTIN REALTY, INC., et al., Plaintiffs,
v.
THE LAKE MARTIN REAL ESTATE COMPANY, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          EMILY C. MARKS, CHIEF UNITED STATES DISTRICT JUDGE

         On September 13, 2018, the Plaintiffs, Lake Martin Realty, Inc. and Lake Martin Realty, LLC, filed this trademark infringement and unfair competition action against Defendant The Lake Martin Real Estate Company, LLC. (Doc. 1). The Plaintiffs also filed a motion for preliminary injunction (doc. 2) seeking to prevent the Defendant from using the name and mark “Lake Martin Realty.” (Docs. 2 & 27).

         The Plaintiffs invoke the Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1121 stemming from their claims brought pursuant to the Trademark Act of 1946, 15 U.S.C. § 1051 et seq. The Court has supplemental jurisdiction of the state law claim under 28 U.S.C. § 1367(a).

         Now pending before the Court is the Plaintiffs' motion for a preliminary injunction (doc. 2), and motion for leave to amend the complaint (doc. 18). The proposed amended complaint asserts no new causes of action or legal claims but rather clarifies facts related to the name “Lake Martin Realty.” (Id. at 2). After being given the opportunity, the Defendant has not objected to the motion to amend the complaint.[1] Accordingly, the motion to amend the complaint will be granted. Because the Court will grant the motion to amend, the “amended complaint supersedes the initial complaint and becomes the operative pleading in the case.” Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir. 2011) (quoting Lowery v. Ala. Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007)). Consequently, for the purpose of this opinion, the Court refers to the amended complaint as the operative complaint.

         On December 19, 2018, the Court held an evidentiary hearing on the motion for preliminary injunction. The motion is now fully briefed and ripe for resolution. Upon consideration of the evidence before the Court, and the arguments of counsel, the Court concludes that the Plaintiffs' motion for a preliminary injunction (doc. 2) is due to be denied.

         DISCUSSION

         The Plaintiffs, Lake Martin Realty, Inc. and Lake Martin Realty, LLC, seek a preliminary injunction to prevent the Defendant, The Lake Martin Real Estate Company, LLC, from using the name and mark “Lake Martin Realty.” (Docs. 2 & 27). The decision to grant or deny a preliminary injunction “is within the sound discretion of the district court.” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002).

         To prevail on their motion for a preliminary injunction, the Plaintiffs bear the burden of demonstrating the following:

(1) a substantial likelihood of success on the merits of the underlying case, (2) the movant will suffer irreparable harm in the absence of an injunction, (3) the harm suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction issued, and (4) an injunction would not disserve the public interest.

North Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 (11th Cir. 2008) (quoting Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246-47 (11th Cir. 2002)). See also Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004) (quoting Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (per curiam)). “In this Circuit, [a] preliminary injunction is an extraordinary and drastic remedy not be granted unless the movant clearly established the ‘burden of persuasion' as to each of the four prerequisites.” Siegel, 234 F.3d at 1176.

         In their motion for preliminary injunction, the Plaintiffs assert that they have a protectable interest in the name and mark of Lake Martin Realty. The Plaintiffs concede that they do not have a registered trademark, but they assert that while the mark they are attempting to protect is “descriptive, ” because the mark has established a secondary meaning, they can protect it. (Doc. 23 at 6-7). The Court pretermits discussion of whether the Plaintiffs can establish a substantial likelihood of success on the merits of the underlying case because the Court concludes that the Plaintiffs have failed to demonstrate that they “will suffer irreparable harm” if the Court does not grant a preliminary injunction. Berber v. Wells Fargo Bank, N.A., - -- Fed.Appx. ---, ---, 2019 WL 126749, *2 (11th Cir., Jan. 8, 2019) (“A court need not examine all of four prongs, because if, as here, no showing of irreparable injury is made, the injunction cannot be issued.”).

         “A showing of irreparable injury is the sine qua non of injunctive relief.” Siegel, 234 F.3d at 1176 (internal quotations omitted).

Significantly, even if Plaintiffs establish a likelihood of success on the merits, the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper. . .. As we have emphasized on many occasions, the asserted irreparable injury “must be neither remote nor speculative, but actual and imminent.”

Id. at 1176-77.

         In essence, the Plaintiffs argued that because there was a likelihood of confusion between Lake Martin Realty and The Lake Martin Real Estate Company, that possibility of confusion was sufficient to demonstrate irreparable harm. The Court disagrees. The Plaintiffs presented no evidence of actual or imminent injury to their reputation. At the hearing on their motion for preliminary injunction, Steve Arnberg, vice-president of real estate sales for Russell Lands, when asked what damage Lake Martin Realty had suffered as a result of The Lake Martin Real Estate Company's business, responded:

A: That's a good question. But my concern is not what I've lost. It's what I could lose.

(Doc. 23 at 43).

         Lake Martin Realty's marketing director testified that she was not aware of any way in which The Lake Martin Real Estate Company, through advertising, had hurt Lake Martin Realty. (Id. at 87-88).

Q: When you did a search, a Google search, and googled Lake Martin real estate, it was your company that ...

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