Kiss Catalog, Ltd. v. Passport International Productions, Inc.

MEMORANDUM *

1. The district court abused its discretion in granting a preliminary injunction. *526 See GoTo.Com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1204 (9th Cir.2000) (explaining the abuse of discretion standard). Most significantly, the court faded to undertake a nominative fair use analysis because it erroneously held that the defense does not apply when a defendant uses a trademark in its secondary, trademark sense. See Brother Records, Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir.2003); New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302 , 308 (9th Cir.1992). The court also failed to analyze defendants’ copyright preemption defense with respect to plaintiffs’ right of publicity claims. See Downing v. Abercrombie & Fitch, 265 F.3d 994, 1003-05 (9th Cir.2001). Without considering whether either or both defenses are likely to prevail, the court could not have found that plaintiffs demonstrated probable success on their claims.

2. This panel retains jurisdiction over any future appeals from grants or denials of preliminary injunction motions. In the event that such an appeal is filed, the panel will set an abbreviated briefing schedule and resolve the ease on an…