CARSON OPTICAL INC v. ALISTA CORPORATION RQ (2020)

SUMMARY ORDER

Carson Optical, Inc. appeals from the August 8, 2019 opinion and order of the United States District Court for the Eastern District of New York (Feuerstein, J.), denying Carson Optical’s application for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 to enjoin Alista Corporation and RQ Innovasion Inc. (collectively, “Defendants-Appellees”) from advertising their magnifying mirrors on Carson Optical’s product pages on Amazon.com. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

“We review the denial of a preliminary injunction for abuse of discretion.” Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009). “A district court abuses its discretion when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision—though not necessarily the product of a legal error or a clearly erroneous factual finding—cannot be located within the range of permissible decisions.” Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 192 (2d Cir. 2014) (internal quotation marks omitted).

Carson Optical argues that the district court erred in rejecting its application for a preliminary injunction on the basis that Carson Optical failed to establish the likelihood of irreparable harm in the absence of a preliminary injunction. We disagree. Generally, “[i]t is virtually impossible to prove that so much of one’s sales will be lost or that one’s goodwill will be damaged as a direct result of a competitor’s advertisement.” Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 316 (2d Cir. 1982). Here, however, the district court found based on a single declaration that Amazon’s tracking of clicks on Defendants-Appellees’ advertisements on Carson Optical’s Amazon webpage would provide a basis to estimate Carson Optical’s losses from the purportedly false advertisements. On appeal, Carson Optical has failed to show why the data referred to by the declaration would not provide a reasonable starting point for a suitable damages analysis. Absent such a showing we cannot identify clear error in the district court’s finding.

Further, the challenged advertisements do not make any statement about or explicit comparison with the mirrors sold by Carson Optical. Rather, Carson Optical merely alleges that the advertisements are false and appear on Carson Optical’s Amazon.com product pages. We agree with the district court that these assertions are too conclusory to establish irreparable harm through a loss of goodwill. The lack of direct reference to Carson Optical’s products, as well as the district court’s finding that Carson Optical would be able to estimate lost customers through click-tracking, distinguish this case from the comparative false advertising cases on which Carson Optical relies. See Salinger v. Colting, 607 F.3d 68, 82 (2d Cir. 2010) (explaining, in the copyright law context, that “by anchoring the injunction standard to equitable principles, albeit with one eye on historical tendencies [in past cases], courts are able to keep pace with innovation in this rapidly changing technological area.”).

We thus conclude that the district court did not exceed the bounds of its discretion in rejecting Carson Optical’s application for a preliminary injunction.

We have considered the remainder of Carson Optical’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.