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Warnervision Entm't, Inc. v. Empire of Carolina, Inc. - 101 F.3d 259 (2d Cir. 1996)


A temporary injunction ought not to be used to give final relief before trial. Neither should it permit one party to obtain an advantage by acting, while the hands of the adverse party are tied by the writ.


Empire of Carolina, Inc., Empire Industries, Inc. and Empire Manufacturing, Inc. (Empire) and Thomas Lowe Ventures, Inc. d/b/a Playing Mantis (TLV) appeal from orders of the district court preliminarily enjoining Empire from violating WarnerVision Entertainment Inc.'s (WarnerVision) trademark "REAL WHEELS," and denying Empire's cross-motion for injunctive relief. Empire argued that the filing of their "intent to use" application for the trademark "REAL WHEELS," pursuant to 15 U.S.C.S. § 1051(b), was a defense against WarnerVision’s motion to preliminarily enjoin use of that mark. WarnerVision argued that they had begun commercial use of the mark before Empire did, and that they had priority, regardless of the filing. 


Was the filing of an "intent to use" application a defense to a preliminary injunction?




The court found that Empire filed their "intent to use" application before WarnerVision had begun to use the mark commercially, and that under those circumstances, enjoining Empire from future use of the mark would prevent them from completing the registration process and terminate their rights as holders of the "intent to use" application. The court also found, however, that Empire’s "intent to use" application did not give them the right to seek affirmative relief precluding WarnerVision’s use of the mark.

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