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Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc.

United States Court of Appeals for the Ninth Circuit
736 F.3d 1239 (9th Cir. 2013)


Herb Reed was a founding member of “The Platters,” a world-famous singing group in the 1950s. The original band members assigned their rights in the name The Platters to Five Platters, Inc. (Five Platters). These trademark rights were transferred much later to Larry Marshak and Florida Entertainment Management, Inc. (Marshak) (defendants). After The Platters broke up in the 1960s, Reed continued performing under the name “The Platters.” In 1987, Five Platters sued Reed for trademark infringement, and the parties reached a settlement agreement that gave Reed the right to perform under the name “Herb Reed and the Platters.” Additionally, the settlement gave Reed the right to use the mark for The Platters if a final court order ever found that Five Platters did not have a right to The Platters mark. Reed formed Herb Reed Enterprises, LLC (Herb Reed Enterprises) (plaintiff) to manage his business affairs and hold his trademark rights. In 2012, Herb Reed Enterprises sued Five Platters for trademark infringement, alleging that “The Platters” was confusingly similar to “Herb Reed and The Platters.” Five Platters was defunct and did not respond, leading to a default judgment that gave Reed rights to The Platters mark. In 2012, Herb Reed Enterprises sued Marshak for trademark infringement and sought a preliminary injunction against Marshak’s use of The Platters mark. Marshak claimed that Herb Reed Enterprises had abandoned the mark, but Marshak did not provide any evidence to support this claim. The district court found that Herb Reed Enterprises was likely to succeed on the merits because it could assert a right to The Platters mark either through the 1987 settlement or the 2012 default judgment. However, even though Herb Reed Enterprises did not present evidence that it would suffer irreparable harm if the injunction was not issued, the district court also found a likelihood of irreparable harm and issued a preliminary injunction preventing Marshak from using The Platters mark. Marshak appealed.

Rule of Law


Holding and Reasoning (McKeown, J.)

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