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Brennan's, Inc. v. Brennan's Rest., L.L.C. - 360 F.3d 125 (2d Cir. 2004)


A party seeking a preliminary injunction must establish (1) irreparable harm and (2) either (a) a likelihood of success on the merits or (b) a sufficiently serious question going to the merits and a balance of hardships tipping decidedly in the moving party's favor. In a trademark infringement case, proof of a likelihood of confusion establishes both a likelihood of success on the merits and irreparable harm.


Appellant Brennan's, Inc. (plaintiff, or appellant) owns and operates the restaurant "Brennan's," founded in 1946 in New Orleans, Louisiana. Plaintiff registered the trademark for its restaurant services. Plaintiff operates one other restaurant, "Owen Brennan's Restaurant," in Memphis, Tennessee, but owns no restaurants in the New York City area. Terrance Brennan, so named at birth, is a New York City chef who, prior to this litigation, opened two restaurants in New York City, "Picholine" and "Artisanal." At the center of this controversy is his newest enterprise, "Terrance Brennan's Seafood & Chop House" (Terrance Brennan's), located in Manhattan. A corporation was formed called 565 Lexington Avenue Co., LLC to own and operate the restaurant. This corporation along with its sole managing member, Brennan's Restaurant, LLC, are the named defendants in this action. Plaintiff sought a preliminary injunction on the grounds that the name Terrance Brennan's Seafood & Chop House infringed its rights in the name Brennan's and was likely to cause consumer confusion. After expedited limited discovery and a two-day hearing, the court denied the motion for a preliminary injunction, the order from which plaintiff appealed.


Was there a likelihood of consumer confusion in the trademark as to warrant the issuance of a preliminary injunction?




The United States Court of Appeals for the Second Circuit affirmed the order by the federal district court denying plaintiff's request for the preliminary injunction. The appellate court noted that the record consisted of mostly conclusory allegations supported by facts that were generally contested. Infrequently will such prove to be a record upon which an appellate court will find that a district court has abused its discretion by refusing to issue a preliminary injunction. Although plaintiff also brought dilution and state law unfair competition claims in the district court, the only issue before the appellate court was whether plaintiff had demonstrated a likelihood of success on the merits. of the trademark infringement claim. In particular, the district court noted the minimal evidence of actual confusion, the use of Terrance Brennan's first name in his mark, the sophistication of the relevant consumer market, and the substantial geographic distance -- more than 1,000 miles -- separating the two Brennan restaurants. To prevail on a claim of trademark infringement, a plaintiff must show, first, that its mark merits protection, and, second, that the defendant's use of a similar mark is likely to cause consumer confusion. 

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