                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


HERB REED ENTERPRISES, LLC, a            No. 12-16868
Massachusetts company,
       Plaintiff-counter-defendant -        D.C. No.
                           Appellee,     2:12-cv-00560-
                                          MMD-GWF
                 v.

FLORIDA ENTERTAINMENT                      OPINION
MANAGEMENT, INC., a Nevada
company; LARRY MARSHAK,
    Defendants-counter-claimants -
                       Appellants.


      Appeal from the United States District Court
               for the District of Nevada
        Miranda Du, District Judge, Presiding

                Argued and Submitted
      March 12, 2013—San Francisco, California

                Filed December 2, 2013

  Before: J. Clifford Wallace, M. Margaret McKeown,
          and Sandra S. Ikuta, Circuit Judges.

            Opinion by Judge McKeown;
            Concurrence by Judge Wallace
2         HRE V. FLORIDA ENTERTAINMENT MGMT.

                           SUMMARY*


             Trademark/Preliminary Injunction

    Reversing the district court’s grant of a preliminary
injunction against defendants’ use of the mark “The Platters”
in connection with a vocal group, the panel held that the
likelihood of irreparable harm must be established, rather
than presumed, by a plaintiff seeking injunctive relief in the
trademark context.

    The panel affirmed the district court’s holding that earlier
New York actions did not have res judicata effect. The panel
also held that the plaintiff was not barred by laches from
challenging defendants’ use of the mark.

    As to the plaintiff’s likelihood of success on the
trademark infringement claim, the panel held that the district
court did not err in concluding that the defendants failed to
meet their burden of strictly proving the affirmative defense
of trademark abandonment.

    The panel held that in light of eBay v. MarcExchange,
LLC, 547 U.S. 388 (2006), and Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7 (2008), a plaintiff seeking a
preliminary injunction in a trademark infringement case must
establish irreparable harm. The panel concluded that even
though the district court identified the correct legal principle,
the record did not support a determination of the likelihood of
irreparable harm.

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         HRE V. FLORIDA ENTERTAINMENT MGMT.                 3

    Concurring, Judge Wallace agreed that the district court’s
preliminary injunction should be reversed. He wrote
separately to emphasize that the panel was solely reviewing
a preliminary injunction and thus could express no views on
issues arising after a trial dealing with a permanent
injunction.


                        COUNSEL

Cameron Sean Reuber (argued) and Yuval H. Marcus, Leason
Ellis LLP, White Plains, New York; Jacob A. Reynolds,
Hutchison & Steffen, LLC, Las Vegas, Nevada, for
Defendants-Appellants.

Eric Miller Sommers (argued), Sommers Law, PLLC,
Portsmouth, New Hampshire; John Lund Krieger, Lewis and
Roca LLP, Las Vegas, Nevada, for Plaintiff-Appellee.


                         OPINION

McKEOWN, Circuit Judge:

     “The Platters”—the legendary name of one of the most
successful vocal performing groups of the 1950s—lives on.
With 40 singles on the Billboard Hot 100 List, the names of
The Platters’ hits ironically foreshadowed decades of
litigation—“Great Pretender,” “Smoke Gets In Your Eyes,”
“Only You,” and “To Each His Own.” Larry Marshak and
his company Florida Entertainment Management, Inc.
(collectively “Marshak”) challenge the district court’s
preliminary injunction in favor of Herb Reed Enterprises
(“HRE”), enjoining Marshak from using the “The Platters”
4          HRE V. FLORIDA ENTERTAINMENT MGMT.

mark in connection with any vocal group with narrow
exceptions. We consider an issue of first impression in our
circuit: whether the likelihood of irreparable harm must be
established—rather than presumed, as under prior Ninth
Circuit precedent—by a plaintiff seeking injunctive relief in
the trademark context. In light of Supreme Court precedent,
the answer is yes, and we reverse the district court’s order
granting the preliminary injunction.

                            BACKGROUND

    The Platters vocal group was formed in 1953, with Herb
Reed as one of its founders. Paul Robi, David Lynch, Zola
Taylor, and Tony Williams, though not founders, have come
to be recognized as the other “original” band members. The
group became a “global sensation” during the latter half of
the 1950s,1 then broke up in the 1960s as the original
members left one by one. After the break up, each member
continued to perform under some derivation of the name “The
Platters.” Marshak v. Reed, No. 96 CV 2292(NG)(MLO),
2001 WL 92225, at *4 (E.D.N.Y. and S.D.N.Y. Feb. 1, 2001)
(“Marshak I”).

     Litigation has been the byproduct of the band’s
dissolution; there have been multiple legal disputes among
the original members and their current and former managers
over ownership of “The Platters” mark. Much of the
litigation stemmed from employment contracts executed in
1956 between the original members and Five Platters, Inc.
(“FPI”), the company belonging to Buck Ram, who became
the group’s manager in 1954. As part of the contracts, each

      1
         The Platters Biography, ROCK & ROLL HALL OF FAME,
http://rockhall.com/inductees/the-platters/bio/ (last visited June 27, 2013).
         HRE V. FLORIDA ENTERTAINMENT MGMT.                   5

member assigned to FPI any rights in the name “The Platters”
in exchange for shares of FPI stock. Marshak I, 2001 WL
92225, at *3. According to Marshak, FPI later transferred its
rights to the mark to Live Gold, Inc., which in turn transferred
the rights to Marshak in 2009. Litigation over the validity of
the contracts and ownership of the mark left a trail of
conflicting decisions in various jurisdictions, which provide
the backdrop for the present controversy. What follows is a
brief summary of the tangled web of multi-jurisdictional
litigation that spans more than four decades.

    In 1972, FPI sued Robi and Taylor for trademark
infringement in California, resulting in a 1974 judgment in
Robi’s favor, which held that FPI “was a sham used by Mr.
Ram to obtain ownership of the name ‘Platters.’” Robi v. Five
Platters, Inc., 838 F.2d 318, 320 (9th Cir. 1988) (“Robi I”)
(quoting the 1974 decision). By contrast, an analogous
dispute between FPI and Williams in New York resulted in a
1982 decision holding that FPI had lawfully acquired
exclusive ownership of the name. Marshak I, 2001 WL
92225, at *7 (citing the 1982 decision). Williams attempted
to circumvent the New York decision by seeking declaratory
judgment in the Central District of California based on the
1974 judgment in favor of Robi. He was ultimately
unsuccessful; on appeal, we reasoned that Williams could not
avoid the claim preclusive effect of the New York judgment
by relying on issue preclusion from another case in which he
was not a party. Robi I, 838 F.2d at 328. We upheld the
judgment in favor of Robi, id. at 330, and later affirmed the
district court’s award of compensatory and punitive damages
to Robi as well as its cancellation of FPI’s three registered
trademarks using the words “The Platters.” Robi v. Five
Platters, Inc., 918 F.2d 1439, 1441 (9th Cir. 1990) (“Robi
II”).
6        HRE V. FLORIDA ENTERTAINMENT MGMT.

    In 1984, FPI sued Reed for trademark infringement in the
Southern District of Florida. Marshak I, 2001 WL 92225, at
*9. The court denied Reed’s motion for summary judgment
based on the preclusive effect of the 1974 California
judgment against FPI. Id. Preferring to avoid trial, Reed
signed a court-approved stipulation of settlement in 1987,
under which he assigned to FPI all rights he had in FPI stock,
retained the right to perform as “Herb Reed and the Platters,”
and agreed not to perform under the name “The Platters.”
However, the settlement included an “escape clause”:

        In the event that a court of competent
        jurisdiction enters a final order with all
        appeals being exhausted that provides that
        The Five Platters, Inc. has no right in the
        name “The Platters,” then nothing contained
        herein shall be construed to limit Herbert
        Reed’s rights in the name “The Platters” and
        this agreement shall not inure to any party
        other than The Five Platters, Inc., and its
        successors and assigns or Herbert Reed.

A key question is whether the escape clause has now been
triggered.

    In 2001, Marshak, FPI, and other plaintiffs sued Reed and
others for trademark infringement in the Eastern District of
New York; Reed counterclaimed, also alleging trademark
infringement. Marshak I, 2001 WL 92225, at *1. The court
interpreted the 1987 settlement as “barr[ing] Reed from
asserting that he has any right to the name ‘The Platters’ as
against FPI or those claiming through FPI except as
specifically allowed in that agreement, or from otherwise
interfering with plaintiffs’ rights to the use of ‘The Platters.’”
          HRE V. FLORIDA ENTERTAINMENT MGMT.                           7

Id. at *15. The court determined that the settlement’s escape
clause had not been triggered either by Robi I, because the
Ninth Circuit reversed the judgment in favor of Williams
indicating that FPI still had some rights to “The Platters”
mark, or by Robi II, because cancellation of FPI’s federal
mark registration did not resolve the question whether FPI
was entitled to use the name “The Platters.” Id. at *19–20.
The district court enjoined Reed from, among other things,
interfering with FPI and Marshak’s use of the name “The
Platters” except as permitted in the 1987 settlement (“the
2001 injunction”). Id. at *21. The Second Circuit affirmed.
Marshak v. Reed, 13 F. App’x 19 (2d Cir. 2001).

    Reed appealed Marshak I a second time on the basis that
an unpublished Ninth Circuit memorandum issued around the
same time triggered the 1987 settlement’s escape clause.2
The Second Circuit vacated and remanded Marshak I,
Marshak v. Reed, 34 F. App’x 8 (2d Cir. 2002), but later
affirmed the district court’s decision to adhere to its earlier
decisions because the Ninth Circuit memorandum left “open
the possibility, however remote, that FPI can establish a
common law trademark right to the name ‘The Platters.’”
Marshak II, 329 F. Supp. 2d at 185, aff’d, Marshak v. Reed,
87 F. App’x 208 (2d Cir. 2004).


  2
    The memorandum held that FPI and other plaintiffs “cannot assert a
common law trademark in ‘The Platters’” unless they “present evidence
that they used the trademark in a way that was not false and misleading.”
Five Platters, Inc. v. Powell, 7 F. App’x 794, 795 (9th Cir. 2001). The
case was remanded for an evidentiary hearing, although the disposition
noted that FPI was “unlikely” to be able to make the required showing.
Id. & n.6. On remand FPI abandoned the trademark claim and the
evidentiary hearing never occurred. Marshak v. Reed, 229 F. Supp. 2d
179, 182 n.2, 184–85 (E.D.N.Y. 2002) (“Marshak II”) (describing the
remand).
8        HRE V. FLORIDA ENTERTAINMENT MGMT.

    HRE, which manages Reed’s business affairs and holds
his rights, sued FPI and other defendants for trademark
infringement in the District of Nevada in 2010. To get
around the restrictions in the 1987 settlement, HRE creatively
alleged that it owned the “Herb Reed and the Platters” mark
and that defendants used a confusingly similar mark, namely
“The Platters.” Herb Reed Enters., Inc. v. Bennett, No. 2:10-
CV-1981 JCM (RJJ), 2011 WL 220221, at *1 (D. Nev. Jan.
21, 2011). FPI was not represented—according to Marshak,
FPI was by this time a defunct corporation that had already
transferred and no longer owned any rights to “The Platters”
mark. The action resulted in a 2011 default judgment and
permanent injunction declaring that (1) FPI “never used the
mark ‘The Platters’ in a manner that [was] not false and
misleading and thus never acquired common law rights to the
mark,” and (2) “Reed, having first used the mark ‘The
Platters’ in commerce in 1953, and having continuously used
the mark in commerce since then has superior rights to the
mark to all others,” including FPI and “anyone claiming
rights from or through” FPI. Herb Reed Enters., Inc. v.
Monroe Powell’s Platters, LLC, 842 F. Supp. 2d 1282, 1287
(D. Nev. 2012) (quoting the 2011 judgment).

    In 2012, HRE successfully obtained a preliminary
injunction against Monroe Powell, FPI’s former performer
employee, and his company in a trademark infringement
action in the District of Nevada. Id. at 1284. Because Powell
claimed to have acquired rights to “The Platters” mark
through FPI, there was a question as to whether the 1987
settlement limited Reed’s ability to pursue a remedy. The
district court held that, “even assuming that the 1987
stipulation applies, the escape clause has been triggered and
no longer bars Reed from suing FPI or those claiming through
FPI for trademark infringement.” Id. at 1288. The court
         HRE V. FLORIDA ENTERTAINMENT MGMT.                  9

reasoned that the 2011 Nevada default judgment, which
“determined that FPI ‘has no right in the name “The Platters”’
as required by the 1987 stipulation,” was “a final order with
all appeals being exhausted” because the judgment was never
appealed. Id. at 1288–89 (quoting the 2011 judgment).

    In the period between the filing of the two Nevada
actions, Marshak sued Reed for civil contempt in the Eastern
District of New York, alleging that Reed’s first Nevada
lawsuit violated the 2001 injunction. Marshak v. Reed, Nos.
96-CV-2292 (NG)(RML), 11-CV-2582 (NG)(RML), 2012
WL 832269 (E.D.N.Y. Mar. 12, 2012). The court denied
Marshak’s motion, holding that neither Reed’s use of the
mark “Herb Reed and the Platters” nor Reed’s suit in Nevada
protecting that mark constituted a violation of the injunction.
Id. at *3–5.

    Last year brought yet another lawsuit. HRE commenced
the present litigation in 2012 against Marshak in the District
of Nevada, alleging trademark infringement and seeking a
preliminary injunction against Marshak’s continued use of
“The Platters” mark. The district court held that HRE was
not precluded from asserting a right in “The Platters” mark
either by the 1987 settlement—the escape clause of which
had been triggered by the 2011 Nevada default judgment—or
by the equitable doctrine of laches. Herb Reed Enters., LLC
v. Fla. Entm’t Mgmt., Inc., No. 2:12-cv-00560-MMD-GWF,
2012 WL 3020039, at *8 (D. Nev. Jul. 24, 2012). The district
court found that HRE had established a likelihood of success
on the merits, a likelihood of irreparable harm, a balance of
hardships in its favor, and that a preliminary injunction would
serve public interest. Id. at *8–17. Accordingly, the district
court granted the preliminary injunction and set the bond at
10       HRE V. FLORIDA ENTERTAINMENT MGMT.

$10,000. Id. at *19.       Marshak now appeals from the
preliminary injunction.

                          ANALYSIS

I. RES JUDICATA

    As an initial matter, we address whether HRE is
foreclosed from bringing the underlying suit by the New
York actions, Marshak I and Marshak II, which resulted in
the 2001 injunction barring Reed from interfering with
Marshak’s use of “The Platters” mark except as permitted by
the 1987 settlement. The district court correctly held that the
New York actions do not have res judicata effect.

    This action is neither barred by claim preclusion, which
prohibits “the parties or their privies from relitigating issues
that were or could have been raised” in an action resulting in
“[a] final judgment on the merits,” Federated Department
Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981), nor by issue
preclusion, which prohibits “successive litigation of an issue
of fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment,” New
Hampshire v. Maine, 532 U.S. 742, 748–49 (2001). HRE is
not “relitigating issues that were or could have been raised”
in the New York actions because HRE could not assert its
right in “The Platters” name at that time. As the 2001
injunction confirmed, Herb Reed was then bound by the 1987
settlement, and the escape clause had not yet been triggered.
Additionally, the New York actions did not come to a final
judgment on the merits of the trademark dispute. Instead, the
Eastern District of New York enjoined Reed from pursuing
that litigation on the merits because of the 1987 settlement.
The New York cases thus do not have res judicata effect on
         HRE V. FLORIDA ENTERTAINMENT MGMT.                    11

either the issue of whether the much later Nevada actions
triggered the escape clause, or the issue of trademark
ownership, both of which relate to this appeal.

    Marshak quibbles with the district court’s reliance on the
res judicata effect of the Nevada actions—the 2011 default
judgment against FPI and the 2012 preliminary injunction
against Powell. But the district court explicitly declined to
use the 2011 default judgment as offensive collateral estoppel
against Marshak on the issue of trademark ownership. HRE,
2012 WL 3020039, at *7–8. While the district court
referenced the “last in time rule” to resolve any contradiction
between the New York actions and the Nevada actions as to
whether the 1987 settlement’s escape clause has been
triggered, HRE, 2012 WL 3020039, at *7, such reliance was
unnecessary. The language of the escape clause itself is
sufficient and does not limit the type of action or who may
bring an action that ultimately results in “a final order with all
appeals being exhausted that provides that [FPI] has no right
in the name ‘The Platters.’” Thus, Marshak’s complaint that
he was not a party to the 2011 default judgment has no
traction. Given that there is now a valid judgment with all
appeals exhausted declaring that FPI never acquired common
law rights to “The Platters” mark, the escape clause has been
triggered on its own terms, and HRE is no longer bound by
the settlement’s restrictions or the 2001 injunction enforcing
the settlement.

II. LACHES

    Next, we consider whether HRE is barred from
challenging Marshak’s use of “The Platters” mark by
laches—“an equitable time limitation on a party’s right to
bring suit, resting on the maxim that one who seeks the help
12        HRE V. FLORIDA ENTERTAINMENT MGMT.

of a court of equity must not sleep on his rights.” Jarrow
Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th
Cir. 2002) (internal quotation marks and citations omitted).
The district court properly determined that laches does not
foreclose this suit.

    The time gap from when HRE “knew or should have
known about its potential cause of action” to when it filed its
action was not long enough to be unreasonable. Id. at 838.
HRE could not bring the trademark infringement suit until
there was a final ruling with all appeals exhausted that
triggered the escape clause. That ruling came in the Nevada
default judgment in May 2011.3 HRE brought this action in
April 2012, less than a year after the escape clause was
triggered, and less than one month after the Eastern District
of New York determined that HRE had not violated that
court’s 2001 injunction. HRE, 2012 WL 3020039, at *8.
This delay of under one year is shorter than the most
analogous state statute of limitations period, giving rise to a
strong presumption against laches. Jarrow Formulas,
304 F.3d at 837 (“[W]e hold that if a [Lanham Act] § 43(a)
claim is filed within the analogous state limitations period,
the strong presumption is that laches is inapplicable. . . .”).
Marshak agrees that the limitations period from the most
analogous action under state law is three years under
Nevada’s fraud and “catchall” statute of limitations. Nev.
Rev. Stat. § 11.190(3). Because HRE brought its trademark

 3
   Marshak’s argument that HRE should have acted sooner to trigger the
escape clause instead of waiting years until after FPI had become a
defunct entity is inapposite. Marshak essentially seeks a roundabout way
to raise a laches defense in a separate action—HRE’s 2010 suit against
FPI and others in the District of Nevada—that has already been decided
and is not before this court. That argument should have been raised in a
timely appeal of the 2011 default judgment.
         HRE V. FLORIDA ENTERTAINMENT MGMT.                      13

infringement claim well within three years, we presume that
laches is inapplicable. HRE simply did not dally or
unconscionably sit on its claim. Thus, laches does not
preclude consideration of HRE’s trademark infringement
claim and request for preliminary injunction.

III.    PRELIMINARY INJUNCTION

     To obtain a preliminary injunction, HRE “must establish
that [it] is likely to succeed on the merits, that [it] is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in [its] favor, and that an
injunction is in the public interest.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). We review a
district court’s preliminary injunction for abuse of discretion,
a standard of review that is “limited and deferential.”
Johnson v. Couturier, 572 F.3d 1067, 1078 (9th Cir. 2009).
If the district court “identified and applied the correct legal
rule to the relief requested,” we will reverse only if the
court’s decision “resulted from a factual finding that was
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).

    Marshak’s key arguments are that the district court erred
in concluding that HRE had established a likelihood of
success on the merits because Reed abandoned “The Platters”
mark and that the district court erred in finding a likelihood
of irreparable harm.
14        HRE V. FLORIDA ENTERTAINMENT MGMT.

      A. LIKELIHOOD OF SUCCESS ON THE UNDERLYING
         TRADEMARK DISPUTE

     As to its trademark infringement claim, to establish a
likelihood of success on the merits HRE must show that it is
“(1) the owner of a valid, protectable mark, and (2) that the
alleged infringer is using a confusingly similar mark.”
Grocery Outlet, Inc. v. Albertson’s, Inc., 497 F.3d 949, 951
(9th Cir. 2007) (per curiam). Tellingly, Marshak does not
challenge the district court’s conclusions on these two points,4
except by asserting the affirmative defense of abandonment
on the alleged basis that Reed abandoned “The Platters” mark
by signing the 1987 Florida settlement. But “[a]bandonment
of a trademark, being in the nature of a forfeiture, must be
strictly proved.” Prudential Ins. Co. of Am. v. Gibraltar Fin.
Corp. of Cal., 694 F.2d 1150, 1156 (9th Cir. 1982). The
district court did not err in concluding that Marshak failed to
meet that burden.

    Marshak has not established either of the two
requirements of abandonment under 15 U.S.C. § 1127:
(1) discontinuance of trademark use, and (2) intent not to
resume use. Although non-use for three consecutive years
constitutes prima facie evidence of abandonment, the


  4
    Marshak does not dispute the district court’s finding that HRE is the
senior user, or the district court’s reasoning invaliding Marshak’s claims
of ownership. Nor does Marshak contest the district court’s determination
that Marshak’s use of “The Platters” mark is confusingly similar to HRE’s
use of both “The Platters” and “Herb Reed and the Platters” marks
according to the Ninth Circuit’s test. See AMF Inc. v. Sleekcraft Boats,
599 F.2d 341, 348–49 & n.11 (9th Cir. 1979) (describing the factors
relevant to determining whether the alleged infringer is using a
confusingly similar mark), abrogated in part on other grounds by Mattel,
Inc. v. Walking Mountain Prods., 353 F.3d 792, 810 (9th Cir. 2003).
         HRE V. FLORIDA ENTERTAINMENT MGMT.                  15

standard for non-use is high. Id. Non-use requires “complete
cessation or discontinuance of trademark use,” where “use”
signifies any use in commerce and “includes the placement of
a mark on goods sold or transported.” Electro Source, LLC
v. Brandess-Kalt-Aetna Grp., Inc., 458 F.3d 931, 936, 938
(9th Cir. 2006) (emphasis in original). “Even a single
instance of use is sufficient against a claim of abandonment
of a mark if such use is made in good faith.” Carter-Wallace,
Inc. v. Proctor & Gamble Co., 434 F.2d 794, 804 (9th Cir.
1970).

     HRE presented evidence that, despite the 1987 settlement,
it continued to receive royalties from the sale of The Platters’
previously recorded material. The district court permissibly
relied on the declaration of HRE’s general manager that
“[s]ince . . . approximately 1953, Reed continuously received
royalties from Platters recordings, including during the time
period after the 1987 Stipulation was signed and after the
2001 Injunction.” The declaration further indicates that HRE
received and continues to receive royalties from domestic and
international sales and names a range of companies that pay
royalties for the use of The Platters’ original recordings in
other compilations, television ads, movies, or other media.
The receipt of royalties is a genuine but limited usage of the
mark that satisfies the “use” requirement, especially when
viewed within the totality of the circumstances—namely, that
Reed was constrained by the settlement. See Electro Source,
458 F.3d at 940 (“Because the abandonment inquiry is tied to
the unique circumstances of each case, it is appropriate to
look at the totality of the circumstances to determine if
genuine, albeit limited, usage of the mark qualifies a
trademark use ‘in the ordinary course of trade’ under
§ 1127.”); see also Carter-Wallace, 434 F.2d at 803–04
(holding that a mark had not been abandoned when the
16       HRE V. FLORIDA ENTERTAINMENT MGMT.

trademark holder offered a legitimate reason for making only
nominal sales, namely waiting for trademark ownership
issues to be fully litigated and resolved). Receipt of royalties
certainly qualifies as placement of “The Platters” mark on
goods sold, and supports the finding that there was no
abandonment. See Marshak v. Treadwell, 240 F.3d 184, 199
(3d Cir. 2001) (“A successful musical group does not
abandon its mark unless there is proof that the owner ceased
to commercially exploit the mark’s secondary meaning in the
music industry.”) (internal quotation marks and citation
omitted).

    We are not persuaded by Marshak’s view that HRE’s
receipt of royalties violated the 1987 settlement and thus is
not a “bona fide use” under 15 U.S.C. § 1127, capable of
obviating abandonment. It is far from clear that the 1987
settlement, which focused on “the right to perform or
entertain” and explicitly excluded “commercial recordings,”
forbade HRE from collecting royalties on previously recorded
material. Additionally, when Marshak sued Reed for civil
contempt alleging that Reed had violated the 2001 injunction
enforcing the 1987 settlement, Marshak “d[id] not contest
that Reed was entitled to such royalties,” and the Eastern
District of New York held that there was not sufficient
evidence “that Reed used ‘The Platters’ mark in a manner
inconsistent with the 2001 Injunction.” Marshak, 2012 WL
832269, at *3.

    We conclude that the record supports the district court’s
determination that HRE did not abandon “The Platters” mark.
         HRE V. FLORIDA ENTERTAINMENT MGMT.                   17

    B. LIKELIHOOD OF IRREPARABLE HARM

    We next address the likelihood of irreparable harm. As
the district court acknowledged, two recent Supreme Court
cases have cast doubt on the validity of this court’s previous
rule that the likelihood of “irreparable injury may be
presumed from a showing of likelihood of success on the
merits of a trademark infringement claim.” Brookfield
Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036,
1066 (9th Cir. 1999) (emphasis added). Since Brookfield, the
landscape for benchmarking irreparable harm has changed
with the Supreme Court’s decisions in eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, in 2006, and Winter in
2008.

    In eBay, the Court held that the traditional four-factor test
employed by courts of equity, including the requirement that
the plaintiff must establish irreparable injury in seeking a
permanent injunction, applies in the patent context. 547 U.S.
at 391. Likening injunctions in patent cases to injunctions
under the Copyright Act, the Court explained that it “has
consistently rejected . . . a rule that an injunction
automatically follows a determination that a copyright has
been infringed,” and emphasized that a departure from the
traditional principles of equity “should not be lightly
implied.” Id. at 391–93 (citations omitted). The same
principle applies to trademark infringement under the
Lanham Act. Just as “[n]othing in the Patent Act indicates
that Congress intended such a departure,” so too nothing in
the Lanham Act indicates that Congress intended a departure
for trademark infringement cases. Id. at 391–92. Both
statutes provide that injunctions may be granted in
accordance with “the principles of equity.” 35 U.S.C. § 283;
15 U.S.C. § 1116(a).
18       HRE V. FLORIDA ENTERTAINMENT MGMT.

    In Winter, the Court underscored the requirement that the
plaintiff seeking a preliminary injunction “demonstrate that
irreparable injury is likely in the absence of an injunction.”
555 U.S. at 22 (emphasis in original) (citations omitted). The
Court reversed a preliminary injunction because it was based
only on a “possibility” of irreparable harm, a standard that is
“too lenient.” Id. Winter’s admonition that irreparable harm
must be shown to be likely in the absence of a preliminary
injunction also forecloses the presumption of irreparable
harm here.

    Following eBay and Winter, we held that likely
irreparable harm must be demonstrated to obtain a
preliminary injunction in a copyright infringement case and
that actual irreparable harm must be demonstrated to obtain
a permanent injunction in a trademark infringement action.
Flexible Lifeline Sys. v. Precision Lift, Inc., 654 F.3d 989,
998 (9th Cir. 2011); Reno Air Racing Ass’n, Inc., v. McCord,
452 F.3d 1126, 1137–38 (9th Cir. 2006). Our imposition of
the irreparable harm requirement for a permanent injunction
in a trademark case applies with equal force in the
preliminary injunction context. Amoco Prod. Co. v. Village
of Gambell, AK, 480 U.S. 531, 546 n.12 (1987) (explaining
that the standard for a preliminary injunction is essentially the
same as for a permanent injunction except that “likelihood
of” is replaced with “actual”). We now join other circuits in
holding that the eBay principle—that a plaintiff must
establish irreparable harm—applies to a preliminary
injunction in a trademark infringement case. See N. Am. Med.
Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1228–29
(11th Cir. 2008); Audi AG v. D’Amato, 469 F.3d 534, 550
(6th Cir. 2006) (applying the requirement to a permanent
injunction in a trademark infringement action).
         HRE V. FLORIDA ENTERTAINMENT MGMT.                  19

    Having anticipated that the Supreme Court’s decisions in
eBay and Winter signaled a shift away from the presumption
of irreparable harm, the district court examined irreparable
harm in its own right, explaining that HRE must “establish
that remedies available at law, such as monetary damages, are
inadequate to compensate” for the injury arising from
Marshak’s continuing allegedly infringing use of the mark.
HRE, 2012 WL 3020039, at *15. Although the district court
identified the correct legal principle, we conclude that the
record does not support a determination of the likelihood of
irreparable harm.

    Marshak asserts that the district court abused its
discretion by relying on “unsupported and conclusory
statements regarding harm [HRE] might suffer.” We agree.

    The district court’s analysis of irreparable harm is cursory
and conclusory, rather than being grounded in any evidence
or showing offered by HRE. To begin, the court noted that it
“cannot condone trademark infringement simply because it
has been occurring for a long time and may continue to
occur.” The court went on to note that to do so “could
encourage wide-scale infringement on the part of persons
hoping to tread on the goodwill and fame of vintage music
groups.” Fair enough. Evidence of loss of control over
business reputation and damage to goodwill could constitute
irreparable harm. See, e.g., Stuhlbarg Int’l Sales Co., Inc. v.
John D. Brush and Co., Inc., 240 F.3d 832, 841 (9th Cir.
2001) (holding that evidence of loss of customer goodwill
supports finding of irreparable harm). Here, however, the
court’s pronouncements are grounded in platitudes rather than
evidence, and relate neither to whether “irreparable injury is
likely in the absence of an injunction,” Winter, 555 U.S. at 22,
nor to whether legal remedies, such as money damages, are
20         HRE V. FLORIDA ENTERTAINMENT MGMT.

inadequate in this case. It may be that HRE could establish
the likelihood of irreparable harm. But missing from this
record is any such evidence.

    In concluding its analysis, the district court simply cited
to another district court case in Nevada “with a substantially
similar claim” in which the court found that “the harm to
Reed’s reputation caused by a different unauthorized Platters
group warranted a preliminary injunction.” HRE, 2012 WL
3020039, at *15–16. As with its speculation on future harm,
citation to a different case with a different record does not
meet the standard of showing “likely” irreparable harm.

    Even if we comb the record for support or inferences of
irreparable harm, the strongest evidence, albeit evidence not
cited by the district court, is an email from a potential
customer complaining to Marshak’s booking agent that the
customer wanted Herb Reed’s band rather than another
tribute band. This evidence, however, simply underscores
customer confusion, not irreparable harm.5

    The practical effect of the district court’s conclusions,
which included no factual findings, is to reinsert the now-
rejected presumption of irreparable harm based solely on a
strong case of trademark infringement. Gone are the days


  5
    In assessing the evidence with respect to irreparable harm, we reject
Marshak’s assertion that the district court may rely only on admissible
evidence to support its finding of irreparable harm. Not so. Due to the
urgency of obtaining a preliminary injunction at a point when there has
been limited factual development, the rules of evidence do not apply
strictly to preliminary injunction proceedings. See Republic of the
Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988) (“It was
within the discretion of the district court to accept . . . hearsay for purposes
of deciding whether to issue the preliminary injunction.”).
         HRE V. FLORIDA ENTERTAINMENT MGMT.                  21

when “[o]nce the plaintiff in an infringement action has
established a likelihood of confusion, it is ordinarily
presumed that the plaintiff will suffer irreparable harm if
injunctive relief does not issue.” Rodeo Collection, Ltd. v. W.
Seventh, 812 F.2d 1215, 1220 (9th Cir. 1987) (citing Apple
Computer, Inc. v. Formula International Inc., 725 F.2d 521,
526 (9th Cir.1984)). This approach collapses the likelihood of
success and the irreparable harm factors. Those seeking
injunctive relief must proffer evidence sufficient to establish
a likelihood of irreparable harm. As in Flexible Lifeline,
654 F.3d at 1000, the fact that the “district court made
no factual findings that would support a likelihood of
irreparable harm,” while not necessarily establishing a lack
of irreparable harm, leads us to reverse the preliminary
injunction and remand to the district court.

   In light of our determination that the record fails to
support a finding of likely irreparable harm, we need not
address the balance of equities and public interest factors.

   REVERSED and REMANDED.



WALLACE, Senior Circuit Judge, concurring:

    I agree that the district court’s preliminary injunction
should be reversed. However, I write separately to emphasize
that we are solely reviewing a preliminary injunction, and
that we thus can express no view on issues arising after a trial
dealing with a permanent injunction. See, e.g., Barahona-
Gomez v. Reno, 167 F.3d 1228, 1234–35, 1238 (9th Cir.
1999) (stating that the court, in reviewing a preliminary
22      HRE V. FLORIDA ENTERTAINMENT MGMT.

injunction, “express[ed] no opinion on the ultimate merits of
[the] action”).
