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Case 2:08-cv-02632-FCD-GGH Document 99 Filed 10/14/2009 Page 1 of 2

FILED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OCT 13 2009

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

CYTOSPORT, INC., a California
corporation,

Plaintiff - Appellee,

No. 09-15969

D.C. No. 2:08-cv-02632-FCD-
GGH

v.

VITAL PHARMACEUTICALS, INC., a
Florida corporation,

Defendant - Appellant.

MEMORANDUM

*

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Submitted September 14, 2009

Before: SILVERMAN, RAWLINSON, and CLIFTON, Circuit Judges.

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

HL/Inventory

Case 2:08-cv-02632-FCD-GGH Document 99 Filed 10/14/2009 Page 2 of 2

This appeal from the district court's order granting appellee’s motion for a

preliminary injunction comes to us for review under Ninth Circuit Rule 3-3. We

have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.

Our sole inquiry is whether the district court abused its discretion in granting

preliminary injunctive relief. See Winter v. Natural Res. Def. Council, Inc., 129 S.

Ct. 365, 374 (2008); Marlyn Nutraceuticals, Inc., v. Mucos Pharma, 571 F.3d 873,

876 (9th Cir. 2009). Here, the district court correctly identified the legal standards

for likelihood of confusion of a trademark and of trade dress. See Clicks Billiards,

Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1258 (9th Cir. 2001); AMF Inc. v.

Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979).

We conclude that the district court did not rely on an erroneous legal

premise or abuse its discretion in concluding that Cytosport was likely to succeed

on the merits and showed a strong likelihood that it would suffer irreparable harm

if the preliminary injunction did not issue. Accordingly, we affirm the district

court's order granting the preliminary injunction.1



AFFIRMED.

1

The 6/11/09 pro se motion to file an amicus brief is denied.

HL/Inventory