O'Brien Corp. v. Griff

967 F.2d 589 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. O'BRIEN CORPORATION, an Indiana Corporation, Plaintiff-Appellee, v. Preston Ray GRIFF, individually and doing business as Fuller O'Brien, Weather King, Weather King Waterproofing, Defendant-Appellant. No. 91-15838. United States Court of Appeals, Ninth Circuit. Submitted June 12, 1992. * Decided June 17, 1992. Before JAMES R. BROWNING, ALDISERT ** and PREGERSON, Circuit Judges. 1 MEMORANDUM *** 2 The district court did not abuse its discretion in granting a preliminary injunction prohibiting Griff from using the trademark "Weather King." 3 O'Brien demonstrated probable success on the merits. An incontestable trademark may not be challenged as merely descriptive. Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 196 (1985). The district court's finding of a likelihood of confusion was not clearly erroneous: (1) O'Brien's trademark is distinctive and has been used for 30 years; (2) Griff was using the…