Duck Dive v. Michaeline Heydari, 2:13-cv-07791

Plaintiff Duck Dive (San Diego gastropub, opened Mar 2012) uses the name and a logo (woman duck-diving) and sells apparel; has pending trademark applications and local/regional media recognition.
Defendants opened "Duck Dive Gastropub" in Malibu (May 2013) and attempted trademark registration then abandoned one application; continue to operate under a similar name and seek registration for “Duck Dive Gastropub Malibu.”
Plaintiff sent a cease-and-desist; after no compliance, Plaintiff sued for trademark infringement, unfair competition, unfair business practices, and unjust enrichment and sought a preliminary injunction to enjoin Defendants’ use of “Duck Dive.”
Evidence of actual confusion: customer calls misdirected to Plaintiff, unclaimed to-go orders, and a Los Angeles food blog reporting Defendants’ location as Plaintiff’s “second location.”
Court found risk of reputational harm and loss of goodwill (irreparable injury) and that Plaintiff is the senior user in the relevant market/industry despite other uses of the term elsewhere.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Irreparable harm	Confusion has caused reputational harm, lost customers, and unclaimed orders — non-monetary injuries justify injunction	Presumption of irreparable harm is invalid; Plaintiff hasn’t shown irreparable injury	Court: Plaintiff showed actual confusion and reputational/goodwill harms constituting irreparable injury; no need to resolve presumption issue
Ownership/prior use	Duck Dive is senior user in San Diego market and seeks protection in its industry/zone of expansion	Other unrelated uses of "Duck Dive" nationally negate protectable rights	Court: Priority is based on first use in market/industry; Plaintiff is senior user and has protectable interest
Likelihood of consumer confusion	Marks are essentially identical, services proximate (both beach gastropubs), evidence of actual confusion supports likelihood	Geographic distance (San Diego vs Malibu) reduces confusion risk	Court: Likelihood of confusion found — strong mark, similar services/marketing, zone of expansion into LA, and actual confusion evidence weigh for Plaintiff
Scope of preliminary relief	Injunction needed to prevent further consumer confusion and reputational harm	Injunction would be overbroad given generic uses and distance	Court: Granted broad preliminary injunction barring use of "DUCK DIVE"/"DUCK DIVE GASTROPUB" for restaurant/bar/apparel/advertising/etc.; allowed generic use of the word "Gastropub" alone

Winter v. Natural Res. Defense Council, 555 U.S. 7 (2008) (four-factor test for preliminary injunctions)
Marlyn Nutraceticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009) (historical presumption of irreparable harm in trademark cases)
Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) (rejection of irreparable-harm presumption in copyright context)
Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935 (9th Cir. 1987) (sliding-scale approach for preliminary injunctions)
Sengoku Works Ltd. v. RMC Int’l, Ltd., 96 F.3d 1217 (9th Cir. 1996) (priority-of-use test for trademark ownership)
Brookfield Commc’ns, Inc. v. West Coast Entm’t Corp., 174 F.3d 1036 (9th Cir. 1999) (senior user rights and natural zone of expansion principle)
Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190 (9th Cir. 2012) (strength of marks spectrum)
Playboy Enters., Inc. v. Netscape Comms. Corp., 354 F.3d 1020 (9th Cir. 2004) (weight of actual confusion evidence)
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) (non-monetary harms like damage to goodwill can be irreparable)
MySpace, Inc. v. Wallace, 498 F. Supp. 2d 1293 (C.D. Cal. 2007) (irreparable injury in trademark/unfair competition contexts)