01-1444 Simon Property Group, L.P., v. mySimon Inc.

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“Here, SPG voluntarily abandoned its quest for a preliminary injunction after the district court denied its TRO motion. This strongly undermines its argument today that a delay in issuing a permanent injunction will cause it to suffer irreparable harm. SPG cites Processed Plastic Co. v. Warner Communications, Inc., 675 F.2d 852 (7th Cir. 1982), for the proposition that its inability to control the nature and quality of mySimon’s services is ‘the most corrosive and irreparable harm attributable to trademark infringement.’ See id. at 858 (quoting 4 R. Calmann, Unfair Competition, Trademarks and Monopolies, section 88.3 (b) at 205 (3rd ed. 1970)). The potential threat to SPG’s name is questionable. SPG and mySimon do not offer similar services. SPG offered rather weak evidence of the likelihood of confusion between the two enterprises, whereas mySimon presented survey evidence showing that there was a negligible risk of confusion. We think SPG’s plea of irreparable harm is thin at best.

“Nor can SPG show that the district court’s decision was a definitive disposition with regard to injunctive relief. The judge, as the case continues, is free to revise his ruling at any time before entering final judgment. See Samayoa v. Chicago Bd. of Educ., 783 F.2d 102, 104 (7th Cir. 1986). Therefore, because SPG cannot show that the district court’s decision to delay entry of the injunction was a definitive disposition causing SPG irreparable harm, we lack jurisdiction.”

Dismissed.

Appeal from the United States District Court for the Southern District of Indiana, Hamilton, J., Evans, J.