Blog / 11.16.2016

Delay can be a Deadly Mistake in Litigation

By Alexis V. Preskar

In litigation, patience isn’t always a virtue as in the case of Wreal, LLC v. Amazon.com.  The procrastinating plaintiff did not get the last laugh when the Eleventh Circuit (with an assist from sitting Sixth Circuit Judge Eugene Siler) upheld the denial of its motion for a preliminary injunction against Amazon.  Wreal sought to prevent Amazon from marketing its Fire TV, which Wreal said infringed on its Fyre TV, but the federal appellate court upheld the denial, finding that the plaintiff prosecuted its motion “with the urgency of someone out on a meandering evening stroll.”  Ouch.

In order to succeed on any type of preliminary injunction motion, the moving party must prove that they will suffer irreparable harm without the injunction.  The Eleventh Circuit, like many of its sister circuits, found that delay undercuts any argument of irreparable harm because if the situation is so dire, why wouldn’t the plaintiff act sooner to stop it?  In Wreal, the plaintiff waited five (5) months after filing a complaint against Amazon before moving to stop Amazon’s so-called infringing activity.  This delay led the lower and appellate court to question how harmful Amazon’s conduct really was.  Trademarks are already time-sensitive matters – failure to prosecute infringers can weaken the mark and possibly lead to abandonment.  The delay was especially egregious in this case as the plaintiff did nothing to expedite the process or discover new information supporting its claims during its nearly half-year delay.  Noting this lack of action, the court agreed that Wreal’s motion was particularly stale as it was based on the same evidence as the five-month old complaint.

So what can any movant, especially in the case of intellectual property, learn from Wreal’s mistakes?  Number one: don’t delay.  Actively monitor your trademarks and other intellectual property for infringers, and if you find one, act diligently to prosecute your case.  Leading to point number two: if you must delay, have a good reason.  Certainly, it can be equally dangerous to rush to the courthouse doors without all the necessary information to prosecute a case.  In those situations, it is likely best to file a complaint and then engage in some fact-finding before immediately moving for a preliminary injunction.  Although there may be a delay between filing the complaint and moving to enjoin a potential infringer, if you have taken steps to investigate or remedy the problem, a court will be much more understanding of the delay.