HI TECH PHARMACEUTICALS INC v. NUTRITION RESOURCE SERVICES INC JBN (2024)

ORDER

This case comes before the Court on the motion [7-1] of Defendant Nutrition Resource Services, Inc. d/b/a JBN – Just Be Natural (“JBN”) for a preliminary injunction enjoining Plaintiff Hi-Tech Pharmaceuticals, Inc. (“Hi-Tech”) from utilizing an allegedly infringing trademark. A hearing on this motion was held on February 12, 2024.

I. Background

This case presents a trademark dispute over marks for dietary supplements. JBN describes its company as “a family owned and operated business that sells nutritional products and supplements.” [7-1] at 5. It has two trademarks that it uses to promote its products: “GET KRANK'D” and “KRANK'D” (collectively “KRANK'D marks”). JBN's “GET KRANK'D” mark has been registered with the United States Patent and Trademark Office (“USPTO”) since 2006, and its “KRANK'D” mark has been registered since 2017. JBN uses the KRANK'D marks in relation to its sale of “energy drinks, along with syrups and powders used in the preparation of such drinks.” [7-1] at 3.

Hi-Tech also sells dietary and nutritional supplements. It has used the mark “KRANK3D” in connection with its products since June 2023.

Hi-Tech applied to register the KRANK3D mark with the USPTO in January 2023. The USPTO approved the mark for publication in the Trademark Official Gazette, and the mark was published for opposition on September 26, 2023.

JBN has taken several steps to combat Hi-Tech's use of the KRANK3D mark. First, its counsel sent a cease-and-desist letter on August 8. Hi-Tech responded through counsel, denying that its mark infringed on JBN's mark and refusing to stop its use. Then, when the mark was published for opposition, JBN filed a notice of opposition with the Trademark Trial and Appeal Board (“TTAB”). That proceeding is stayed because of Hi-Tech's initiation of this litigation. The USPTO has not issued an allowance connected to Hi-Tech's application.

Hi-Tech filed this action for a declaratory judgment against JBN on December 4, 2023. It seeks a declaratory judgment of (1) non-infringement of its KRANK3D trademark, and (2) JBN's abandonment of its KRANK'D trademark.

In its answer, JBN brings several counterclaims. These consist of the following eight counts: (1) infringement of federally registered marks under the Lanham Act, 15 U.S.C. § 1114; (2) false designation of origin, false description, and false representation under the Lanham Act, 15 U.S.C. § 1125(a); (3) dilution of trademark under the Lanham Act, 15 U.S.C. § 1125(a); (4) false advertising under the Lanham Act, 15 U.S.C. § 1125(a); (5) declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202; (6) trademark infringement in violation of O.C.G.A. § 10-1-450 and Georgia common law; (7) unfair competition in violation of O.C.G.A. § 13-8-34 and Georgia common law; and (8) dilution of trademark in violation of O.C.G.A. § 10-1-451 and Georgia common law.

JBN filed this motion [7] on February 2, seeking a preliminary injunction that would enjoin Hi-Tech from using the allegedly infringing mark, KRANK3D.

II. Legal Standard

A preliminary injunction is “an extraordinary and drastic remedy,” and movants must satisfy four prerequisites for a Court to grant it. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003) (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)). A movant must establish:

(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.

Id. (citations omitted). Of these four factors, the likelihood of success on the merits is the most important. See Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir. 2002).

III. Discussion

JBN makes several arguments in support of of its various claims—(1) trademark infringement; (2) false designation of origin, description of fact, or representation; and (3) trademark dilution. Because the Court will hold that JBN satisfies the elements for a preliminary injunction based on its trademark infringement claim, it will not address the other grounds for JBN's motion.

A. Likelihood of Success on the Merits

Section 32 of the Lanham Act, 15 U.S.C. § 1114(1)(a), provides for liability for trademark infringement if, without the consent of the registrant, a party uses “in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark ․ with which such use is likely to cause confusion, or to cause mistake, or to deceive.”

To prevail on its trademark infringement claim, JBN must demonstrate “(1) that it had prior rights to the mark at issue and (2) that [Hi-Tech] had adopted a mark or name that was the same, or confusingly similar to its mark, such that consumers were likely to confuse the two.” Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 (11th Cir. 2001) (citing Lone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 106 F.3d 355, 360 (11th Cir. 1997)).

The first element is not at issue, as both of JBN's marks, GET KRANK'D and KRANK'D, are registered with the USPTO. Therefore, the key question for the trademark infringement claim is whether Hi-Tech's KRANK3D mark creates a likelihood of confusion for customers.

To evaluate likelihood of consumer confusion in a Lanham Act trademark claim, the Eleventh Circuit has developed a seven-factor balancing test. See Dieter v. B & H Indus. of Sw. Fla., Inc., 880 F.2d 322, 326 (11th Cir. 1989). The seven factors are: “(1) type [or strength] of mark; (2) similarity of mark; (3) similarity of the products the marks represent; (3) similarity of the parties’ retail outlets and customers; (5) similarity of advertising media; (6) defendant's intent; and (7) actual confusion.” Lipscher v. LRP Publ'ns, Inc., 266 F.3d 1305, 1313 (11th Cir. 2001) (citation omitted); see also Dieter, 880 F.2d at 326; Safeway Stores, Inc. v. Safeway Disc. Drugs, Inc., 675 F.2d 1160, 1164 (11th Cir. 1982). No single factor is dispositive, Lipscher, 266 F.3d at 1313, though the most persuasive factor is the proof of actual confusion. Conagra, Inc. v. Singleton, 743 F.2d 1508, 1514 (11th Cir. 1984).

1. Strength of the Mark

The Lanham Act protects only marks that are sufficiently “distinctive,” meaning “capable of distinguishing the owner's goods [or services] from those of others ․” Tana v. Dantanna's, 611 F.3d 767, 773 (11th Cir. 2010) (citations omitted).

There are “two steps in assessing the strength of a mark: conceptual strength and commercial strength.” FCOA LLC v. Foremost Title & Escrow Servs. LLC, 57 F.4th 939, 948 (11th Cir. 2023).

To determine conceptual strength, the Eleventh Circuit evaluates a mark according to four categories of distinctiveness:

(1) generic—marks that suggest the basic nature of the product or service; (2) descriptive—marks that identify the characteristic or quality of a product or service; (3) suggestive—marks that suggest characteristics of the product or service and require an effort of the imagination by the consumer in order to be understood as descriptive; and (4) arbitrary or fanciful—marks that bear no relationship to the product or service, and the strongest category of trademarks.

Tana, 611 F.3d at 774 (quoting Gift of Learning Found., Inc. v. TGC, Inc., 329 F.3d 792, 797–98 (11th Cir. 2003)).

These categories create a distinctiveness spectrum. Inherently distinctive marks like those in categories (3) and (4)—suggestive, arbitrary and fanciful marks—generally receive trademark protection. On the other hand, indistinctive marks like those in category (1)—generic marks—generally do not. Marks in category (2)—descriptive marks—form a gray area; they are not inherently distinctive, but they garner trademark protection where they have acquired “secondary meaning.” Id.

Courts also consider the commercial strength of a mark. Commercial strength refers to “the real-world consumer recognition of a mark, most often created by the efforts and work of the mark holder.” FCOA LLC, 57 F.4th at 950 (citing Fla. Int'l Univ. Bd. of Trs. v. Fla. Nat'l Univ., Inc., 830 F.3d 1242, 1248 (11th Cir. 2016)). The Eleventh Circuit has held that “[c]ommonly used evidence of commercial strength includes third party use; advertising and promotion; sales and number and types of customers; recognition by trade, media, and customers; and survey of likely customers.” Id. (citing 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 11:83 (4th ed. 2016)).

JBN's KRANK'D marks are both conceptually and commercially strong.

To start, the marks are conceptually strong because they qualify as suggestive marks. Hi-Tech does not contest this point. The term “KRANK'D” does not identify the basic nature of JBN's products, nor does it identify a characteristic of the product, thus eliminating the generic and descriptive categories. Rather, the term “KRANK'D” loosely suggests a boost of energy and requires mental imagination to connect it to JBN's supplements. It is a classic example of a suggestive mark, and therefore, it has conceptual strength.

JBN's two KRANK'D marks are also commercially strong. JBN has used one of the two marks for over twenty years and has spent much money and effort towards advertising and promoting the marks. See MC3 Invs. LLC v. Loc. Brand, Inc., 661 F. Supp. 3d 1145 (N.D. Fla. 2023) (holding that a company's advertising and promotion efforts gives its mark some commercial strength); Alfa Corp. v. Alpha Warranty Servs., Inc., No. 2:20-cv-553-MHT, 2023 WL 6276338, at *7 (M.D. Ala. Sept. 26, 2023) (holding that there was evidence of commercial strength in a mark when the party “has spent many millions of dollars on advertising and promoting its marks and has earned billions in sales under those marks”).

And while Hi-Tech is correct to point out that “in isolation, evidence of promotion efforts is not sufficient to establish a mark's commercial strength,” these efforts are contributing factors to determining commercial strength. FIU Bd. of Trs., 830 F.3d at 1259.

JBN also points out that the GET KRANK'D mark is incontestable, meaning “it has been registered for five years with the Patent & Trademark Office, its holder has filed the affidavit required by 15 U.S.C. § 1065(3) with the Patent & Trademark Office, and the Patent & Trademark Office has accordingly declared the mark ‘incontestable[.]’ ” Frehling Enters., Inc. v. Int'l Select Grp., Inc., 192 F.3d 1330, 1336 (11th Cir. 1999) (citations omitted). The Eleventh Circuit has stated that a “mark's incontestability serves to enhance its strength.” Id.

JBN's promotional efforts, alongside the marks’ extensive time on the market and incontestability of one of the marks, combine to show that the KRANK'D marks are commercially strong.¹

Accordingly, the strength of the mark factor leans heavily in JBN's favor.

2. Similarity of the Mark

The next factor is the similarity of the marks at issue. “The greater the similarity, the greater the likelihood of confusion.” FIU Bd. of Trs., 830 F.3d at 1260. Courts should “consider[ ] the overall impressions that the marks create, including the sound, appearance, and manner in which they are used, rather than comparing isolated features.” FCOA LLC, 57 F.4th at 952 (citation and quotation omitted).

JBN is the clear winner here. The marks are almost identical, with only one character difference.² Both marks utilize all capital letters and the unusual spelling of “crank” starting with the letter “K.” Frehling, 192 F.3d at 1137 (noting that “[b]oth parties stylize their marks in like fashion, using all capital letters” as an important factor in finding the marks similar). Both marks are used to advertise dietary supplements and connote a boost of energy.

And the Eleventh Circuit has found marks with more differences than the marks here to be substantially similar. See, e.g., Wreal, LLC v. Amazon.com, Inc., 38 F.4th 114 (11th Cir. 2022) (finding the marks “FyreTV” and “fireTV” to be “nearly identical”); Frehling, 192 F.3d at 1137 (holding that the mark “OGGETTI” and the mark “BELL’ OGGETTI” are “very similar” and that there was substantial likelihood of confusion); Conagra, 743 F.2d 1508 at 1514 (holding that the marks “Singleton Shrimp Boats” and “Singleton Packing Corporation” were similar and likely to cause confusion).

The Court finds that the marks are exceedingly similar, and this factor favors JBN as well.

3. Similarity of the Product

This factor analyzes “whether the products are of a kind the public could think originate from a single source.” FCOA LLC, 57 F.4th at 953 (citing Frehling, 192 F.3d at 1338).

This factor again goes to JBN. Both JBN's and Hi-Tech's marks are associated with powders that are mixed with water that are meant to enhance workouts and boost energy. [7-1] at 5; [12-3] at 2. The Court rejects Hi-Tech's attempts to distinguish these products. While there may be technical differences between the products, the average consumer searching for a powder to mix with a drink to boost workout performance could easily believe that these products originated from a single source. Thus, the products are similar, and this factor leans towards JBN.

4. Similarity of the Parties’ Trade Channels and Customers

This factor looks at “where, how, and to whom the parties’ products are sold.” Frehling, 192 F.2d. at 1339 (citation omitted). “The parties’ outlets and customer bases need not be identical, but some degree of overlap should be present.” Id.

Again, this factor leans towards JBN. JBN targets consumers pursuing an active lifestyle such as “weightlifters, bodybuilders, cyclists, and other athletes seeking a beverage for pre- and post-workout support and muscle growth and recovery.” [7-1] at 19. And Hi-Tech advertises its product to be taken “in the pre-workout window of opportunity,” [12-3] at 2, also indicating that it is targeting consumers interested in an active lifestyle. And both companies sell their products in similar stores.

And though the parties’ marks are registered (or pending to be registered) in separate classes of goods in the USPTO, the Court does not find this to be in favor of Hi-Tech's position, as there is still significant overlap in the companies’ customer bases.

While the Court agrees with Hi-Tech that the fact that both companies sell their products online carries little weight here, there is still enough other evidence of common customer bases and specialty stores to turn this factor to JBN.

5. Similarity of Advertising Methods

This factor considers the audience of the parties’ advertising. The methods do not have to be identical, but the more similar the audiences are, the greater likelihood of confusion. FCOA LLC, 57 F.4th at 955.

The parties use similar advertising methods, as both utilize social media and the internet to target people interested in fitness. This factor goes towards JBN.

6. Hi-Tech's Intent

“If it can be shown that a defendant adopted a plaintiff's mark with the intention of deriving a benefit from the plaintiff's business reputation, this fact alone may be enough to justify the inference that there is confusing similarity.” Frehling, 192 F.3d at 1340 (citation omitted).

Intent can be proven “with evidence that the [Hi-Tech] ‘had a conscious intent to capitalize on the [JBN's] business reputation, was intentionally blind, or otherwise manifested improper intent’ in choosing its trademark.” Alfa Corp., 2023 WL 6276338, at *10.

JBN argues that Hi-Tech was put on notice of JBN's KRANK'D mark when JBN's counsel sent Hi-Tech a cease-and-desist letter in August 2023. Hi-Tech did not cease its use of its KRANK3D mark following receipt of that letter, but rather continued to market its product using that mark. JBN has also shown that Hi-Tech uses the “®” symbol next to the KRANK3D mark, indicating that the mark had been formally registered with the USPTO. But Hi-Tech's counsel conceded at the hearing that the USPTO still has not issued final approval of this mark, so using the “®” symbol is inappropriate.

The Court finds that the combination of these facts indicates a bad-faith intent on the part of Hi-Tech to capitalize on the goodwill of JBN's mark. Hi-Tech was not only aware of the existence of a substantially similar mark, but it consciously chose to mislead the public with the use of the “®” symbol. These actions manifest a bad-faith intent, and this factor goes towards JBN as well.

7. Actual Confusion

The final factor is “whether there is evidence in fact of confusion.” FCOA LLC, 57 F.4th at 956. Again, this is “the most important circumstantial fact,” but “it is not a requirement for finding a likelihood of confusion.” Id. Indeed, “courts have acknowledged that it is extremely difficult to obtain evidence of actual confusion, particularly when the products are relatively inexpensive, nearly identical, and when the period of concurrent use is short.” Gold Kist Inc. v. ConAgra, Inc., 708 F. Supp. 1291, 1302 (N.D. Ga. 1989) (citing AmBrit, Inc. v. Kraft, Inc., 805 F.2d 974, 987 (11th Cir. 1986)).

JBN has presented no evidence of actual confusion. But Hi-Tech's product has only been on the market since June 2023, and the products are nearly identical. Accordingly, the Court does not afford much weight to this factor.

8. Weighing of the Factors

Considering the totality of the factors, especially strength of the mark, similarity of the marks, and Hi-Tech's bad faith, JBN has demonstrated a substantial likelihood of confusion between its KRANK'D marks and Hi-Tech's KRANK3D mark.³ Accordingly, JBN has shown a likelihood of success on the merits of its trademark infringement claim.

B. Irreparable Injury

The second factor when considering a preliminary injunction motion is whether there is a substantial threat of irreparable harm.

1. Irreparable Harm

Irreparable harm has been found to exist based on a substantial threat of customer confusion and the resulting harm to the movant's reputation and goodwill. See, e.g., FerrellGas Partners, L.P. v. Barrow, 143 F. App'x 180, 190 (11th Cir. 2005); Sound Surgical Techs., LLC v. Leonard A. Rubinstein, M.D., P.A., 734 F. Supp. 2d 1262, 1278 (M.D. Fla. 2010).

The Court gives little weigh to Hi-Tech's argument that the harms here can be redressed with money damages. JBN claims that it has lost and will continue to lose control of its reputation, trade, and goodwill because of Hi-Tech's mark. Because “[t]hese harms have previously been found sufficient to give rise to a finding of irreparable harm even absent the presumption of such harm existing,” there is an irreparable injury here. Ewe Grp., Inc. v. Bread Store, LLC, 54 F. Supp. 3d 1343, 1352 (N.D. Ga. 2014) (citations omitted).

2. Timeliness of the Motion

The next evening after the hearing, Hi-Tech filed a notice [16] of supplemental authority that JBN's injury is not imminent. In fact, Hi-Tech's “notice” was actually a brief—and an unauthorized one at that. Byrom v. Delta Fam. Care—Disability & Survivorship Plan, 343 F. Supp. 2d 1163, 1188 (N.D. Ga. 2004) (“Neither the Federal Rules of Civil Procedure nor the local rules for the Northern District of Georgia authorize parties to file surreplies.”). In any event, Hi-Tech's new argument does not change the outcome of this factor.

Hi-Tech argues that JBN's injury must not be imminent because JBN did not file this motion for a preliminary injunction until six months after learning of Hi-Tech's mark in July 2023. In support, Hi-Tech points to Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1249 (11th Cir. 2016), where the Eleventh Circuit held that the district court did not abuse its discretion when it found that a party's five-month delay in seeking a preliminary injunction demonstrated that it was not suffering imminent irreparable harm.

Hi-Tech's argument is not persuasive. For one, the Court disagrees with how it framed the timeline. To fairly compare this case to Wreal, the correct starting point should be the filing of the action. This action was filed on December 4, 2023. JBN moved for a preliminary injunction on February 2, 2024, less than two months later. This is a much shorter timeline than the five months at issue in Wreal.

Further, Wreal did not hold that five months was per se too long; rather, the Eleventh Circuit held that this amount of time fit within the district court's discretion. Wreal, 840 F.3d at 1249 (“Simply put, the district court did not abuse its discretion when it concluded that Wreal failed to demonstrate an imminent injury.”). So too here, the Court is exercising its discretion in finding that JBN's moving for a preliminary injunction less than two months after the case was filed is not too long to preclude a finding of an irreparable injury.

It is also worth noting that the evidence of infringement is strong here, and this factors into the analysis. See Nutra Health, Inc. v. HD Holdings Atlanta, Inc., No. 1:19-cv-05199-RDC, 2021 WL 5027800, at *14 (N.D. Ga. May 28, 2021) (“Although [movants] delayed in moving for an injunction of this case, that delay cannot foreclose their right to relief given the wealth of evidence concerning [Plaintiff's] ongoing conduct.”).

After careful consideration of the record and oral argument at the hearing, the Court strongly feels that JBN is not guilty of unreasonable delay in filing its motion. JBN states that it first learned about Hi-Tech's mark “in or around late July of 2023.” [7-1] at 8. Following this revelation, JBN's counsel sent Hi-Tech a cease-and-desist letter on August 8, 2023—about two weeks later. Additionally, JBN filed a notice of opposition with the TTAB after Hi-Tech's mark was published for opposition. All this to say, JBN has taken multiple steps at different points in the process to protect its KRANK'D marks, and the Court finds that it has adequately shown that its injury is imminent. Therefore, JBN has demonstrated a substantial likelihood of irreparable harm.

C. Balance of the Hardships

The third factor to assess on this motion is whether the threatened injury to JBN outweighs whatever damage the proposed injunction may cause Hi-Tech.

Hi-Tech argues that it will experience “very real harm” if it is “forced to suddenly and indefinitely stop the sale of a successful, and progressively more successful, product in which it has invested significant time and resources and tied to another product in its offerings.” [12] at 18.

The Court recognizes that issuing an injunction may cause Hi-Tech some hardship. That said, any such hardship is outweighed by the harms that JBN would experience if the injunction were not to issue. This finding is bolstered by Hi-Tech's early knowledge of JBN's mark and bad-faith use of the “®” symbol. Hi-Tech had every opportunity to change its behavior when it was alerted of a competing mark, but chose to continue using its infringing mark. In other words, any hardship on the part of Hi-Tech would result from its own actions. Accordingly, the threatened injury to JBN outweighs whatever damage the proposed injunction may cause Hi-Tech.

D. Public Interest

The final factor to consider is whether an injunction would be adverse to the public interest.

The Court finds that the public would be served by issuing an injunction because the public has an interest in “enforcing [ ] intellectual property rights and preventing consumer confusion.” Express Franchise Servs., L.P. v. Impact Outsourcing Sols., Inc., 244 F. Supp. 3d 1368, 1384 (N.D. Ga. 2017).

There is even more support for an injunction considering Hi-Tech's use of the DMHA ingredient in its product. Though the parties debated the propriety of using this ingredient at the hearing on this motion, the fact remains that the FDA has issued a statement regarding DMHA that explicitly reads, “FDA considers DMHA to be a substance that does not meet the statutory definition of a dietary ingredient and is an unsafe food additive. Accordingly, we consider dietary supplements containing DMHA to be adulterated under the Federal Food, Drug, and Cosmetic Act (FD&C Act).” U.S. Food & Drug Admin., DMHA in Dietary Supplements (March 6, 2023), https://www.fda.gov/food/dietary-supplement-ingredient-directory/dmha-dietary-supplements#:~:text=FDA% 20considers% 20DMHA% 20to% 20be,Cosmetic% 20Act% 20(FD% 26C% 20Act). This is enough to help convince the Court that the public would especially benefit from an order enjoining the use of Hi-Tech's mark.

IV. Conclusion

Based on the Court's analysis of each of the factors above and a balancing of the equities at issue, the Court grants JBN's motion [7] for a preliminary injunction. Effective immediately, Hi-Tech and its officers, agents, servants, employees and attorneys, and any person acting in concert with any of them, are hereby enjoined and restrained from using the mark “KRANK3D” and any name or marks that are confusingly similar to “KRANK'D” in connection with promoting, marketing, selling, or identifying Hi-Tech or its products, until such time as a final decision on the merits is made.

Pursuant to Federal Rule of Civil Procedure 65(c), within ten days from the date this Order is entered, JBN shall post a $5,000 bond with the Clerk of this Court.⁴

IT IS SO ORDERED this 15th of February, 2024.

FOOTNOTES

1.   In opposition to this point, Hi-Tech argues that there are other marks on the market, such as “CRANK SPORTS,” “CRANK UP,” and “CRANKT,” that JBN has not attacked as infringing. The Court first notes that all the marks listed have many more differences from “KRANK'D” than Hi-Tech's mark, most notably that they start with a C. Even so, “a trademark owner is not required to act against every infringing use.” Elizabeth Taylor Cosms. Co. v. Annick Goutal, 673 F. Supp. 1238, 1248 (S.D.N.Y. 1987).

2.   At the hearing on this motion, Hi-Tech's counsel represented to the Court that Hi-Tech's KRANK3D mark is pronounced “Crank-three-D.” Presumably, discovery will produce evidence on the pronunciation issue. In any event, the Court finds that the visual similarity of the marks is enough to find the marks similar and rejects Hi-Tech's argument that the pronunciation turns the tables in its favor.

3.   Hi-Tech makes much of the fact that when considering its application for publication on the Principal Register, the USPTO examining attorney performed a likelihood of confusion analysis and did not find Hi-Tech's KRANK3D mark to be confused with any other mark. The Court gives little weight to the decision of the examining attorney, as he presumably did not have the benefit of the evidence and counsel's argument available to this Court. A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198, 221 (3d Cir. 2000) (“[A]lthough an initial PTO determination by an examining attorney may be considered, it need not be given weight when the PTO attorney did not review all the evidence available to the District Court.”); Carter-Wallace, Inc. v. Procter & Gamble Co., 434 F.2d 794, 802 (9th Cir. 1970) (holding that a determination by a low-level USPTO officer was “inconclusive” and “less persuasive still by the fact that the Patent Office did not have before it the great mass of evidence which the parties have since presented to ․ the District Court”).

4.   At the hearing, counsel for Hi-Tech was given an opportunity to offer a figure for the bond but demurred. Therefore, it is too late for Hi-Tech to request a specific amount, and the Court declines to consider Hi-Tech's additional briefing [18] on this point.

Timothy C. Batten, Sr., Chief United States District Judge