Ninth Circuit Requires Finding of Substantial Risk of Danger to the Public to Support a Preliminary Injunction Requiring a Product Recall in a Trademark Infringement Case
In an opinion issued today, the Ninth Circuit adopted the Third Circuit's standard for determining the propriety of a preliminary injunction directing recall of a product in a trademark infringement case. Specifically, in addition to the traditional standard for a prohibitory preliminary injunction, the district court must consider three other factors in cases involving a requested product recall:
(1) the willful or intentional infringement by the defendant; (2) whether the risk of confusion to the public and injury to the trademark owner is greater than the burden of the recall to the defendant; and (3) substantial risk of danger to the public due to the defendant's infringing activity.
The Ninth Circuit's opinion in Marlyn Nutraceuticals, Inc. v. Mucos Pharma GMBH & Co., No. 08-15101, can be found here (PDF, 14 pgs).
