Oroamerica Inc. v. D & W Jewelry Co.

10 F. App'x 516

Opinion

MEMORANDUM²

This appeal from the denial of a request for a preliminary injunction comes to us under Ninth Circuit Rule 3-3.³ We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.⁴

Oroamerica, Inc. alleges that D & W Jewelry, Inc.’s sale of certain jewelry chains infringes upon Oroamerica’s copyright in two jewelry chain designs. Oroamerica requested, and the district court denied, a preliminary injunction.

Our inquiry is limited to whether the district court abused its discretion in denying the request for the preliminary injunction or based its decision on an erroneous legal standard or an clearly erroneous findings of fact. Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996).

We are aware of no authority to support Oroamerica’s contention that the district court was not entitled to consider the issuance of a design patent covering D & W Jewelry’s gold chain as a relevant factor in evaluating whether to grant preliminary injunctive relief. Nor can we say that the district court abused its discretion in concluding, in a balanced order based on findings derived only from the “current record,” that Oroamerica had not demonstrated either probable success on the merits or a balance of hardships tipping sharply in Oroamerica’s favor. See id.

We therefore affirm, noting that “[b]e-cause of the limited scope of our review of the law applied by the district court and because the fully developed factual record may be materially different from that initially before the district court, our disposition ... may provide little guidance as to the appropriate disposition on the merits.” Sports Form v. United Press Int’l, 686 F.2d 750, 753 (9th Cir.1982).

AFFIRMED.

2 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

3 . We DENY as moot Oroamerica’s motion to expedite the appeal.

4 . We GRANT Oroamerica's motion to take judicial notice of (1) United States Copyright Office supplemental copyright registration certificate VA 1-041-249; and (2) the file history of U.S. Design Patent 428,822, Kahan, issued to Charm Link, Inc.

We also GRANT D & W’s motion to take judicial notice of (1) Information Disclosure Statement by Applicant regarding Kahan design patent application number 29/127,078, United States Patent and Trademark Office Forms PTO-1449 and PTO-892; (2) Notice of Allowance of Kahan design patent application number 29/127,078; and (3) Notice of Allowability of Kahan design patent application number 29/127,078.