Case 2:08-cv-02632-FCD-GGH Document 99 Filed 10/14/2009 Page 1 of 2
NOT FOR PUBLICATION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
Plaintiff - Appellee,
D.C. No. 2:08-cv-02632-FCD-
VITAL PHARMACEUTICALS, INC., a
Defendant - Appellant.
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.
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
The 6/11/09 pro se motion to file an amicus brief is denied.