In the Supreme Court of Georgia



                                             Decided: March 2, 2015


   S14A1824. INDIA-AMERICAN CULTURAL ASSOCIATION, INC.
                 v. ILINK PROFESSIONALS, INC.


      HINES, Presiding Justice.

      This is an appeal by defendant India-American Cultural Association

(“IACA”) from the grant of plaintiff iLink Professionals, Inc.’s (“iLink”)

emergency motion for an interlocutory injunction in its suit alleging, inter alia,

the infringement of state registered service marks. For the reasons which follow,

we affirm.

             This dispute concerns the use of the service marks, “Miss India

Georgia” and “Miss Teen India Georgia,” (collectively “Marks”). The Marks are

used in connection with beauty pageants, initially hosted in 1987 by IACA, a

nonprofit organization focused on supporting Indian-Americans and preserving

Indian culture. IACA conducted the pageants under the Marks from 1987

through 2010. In 2011, facing budgetary restrictions, IACA decided not to hold

the “Miss India Georgia” and “Miss Teen India Georgia” pageants. In 2012,
iLink, a promoter of beauty pageants and whose president had been involved in

the “Miss India Georgia” and “Miss Teen India Georgia” pageants in the past,

promoted and hosted both pageants, and IACA appeared in the pageants’

program as a sponsor. After iLink announced its intention to host the 2013

pageants, and its scheduled date of July 20, 2013, IACA announced that it

would hold the “Miss India-Georgia” and “Miss Teen India-Georgia” pageants

the week before, on July 13, 2013. Both parties promoted their events and

sought sponsorships.

      On April 12, 2013, iLink filed, with the Office of the Secretary of State

of Georgia, the mark “Miss India Georgia,” and then on April 16, 2013, filed

with that office the mark, “Miss Teen India Georgia.” iLink also acquired an

internet domain name and used that website to advertise its pageant business.

iLink sent IACA a letter dated May 20, 2013, demanding that IACA cease use

of “Miss India Georgia” and “Miss Teen India Georgia.” On May 31, 2013,

IACA sent iLink a letter demanding that it cease its use of the Marks. Neither

party acceded.

      On June 19, 2013, iLink filed in superior court a “Verified Complaint for

Infringement of Registered Service Marks, for Temporary and Permanent

                                      2
Injunctive Relief, and for Other Remedies,” against IACA alleging the

infringement of registered service marks pursuant to OCGA § 10-1-440 et seq.;

service mark infringement as a fraud for which equity will grant relief; violation

of Georgia’s Uniform Deceptive Trade Practices Act, OCGA § 10-1-370 et seq.;

conversion; and tortious interference with contract and business relations.

iLink asked for, inter alia, a temporary restraining order and permanent

injunction enjoining IACA from infringing upon the registered marks and

competing unfairly against iLink, judgment against IACA in an amount to be

proved at trial, interest, attorney fees, litigation expenses, and punitive damages.

On June 26, 2013, the superior court held a hearing on iLink’s emergency

motion for an interlocutory injunction, and following such hearing, on July 1,

2013, issued the now contested interlocutory injunction, enjoining IACA from

“using, displaying, advertising or selling the service marks “Miss India Georgia”

and “Miss Teen India Georgia,” with or without hyphens or in any other

substantially similar or confusingly similar form, and specifically doing any

such things in connection with IACA’s July 2013 pageant or competition.1

       1
        As the superior court commented at the hearing in the matter and as its order reflects, the
interlocutory injunction did not prohibit IACA from holding the pageants, but only that the pageants
not proceed under the subject names.

                                                 3
      In deciding whether to grant an interlocutory injunction, a trial court has

broad discretion, keeping in mind the purpose of an interlocutory injunction

which is to preserve the status quo pending a final adjudication of the merits of

the case. OCGA § 9–5–8; Holton v. Physician Oncology Services, LP, 292 Ga.

864, 866 (2) (742 SE2d 702) (2013). In general, factors for the trial court’s

consideration are whether there is a substantial threat that the moving party will

suffer irreparable injury if the injunction does not issue, whether the threatened

injury to the movant outweighs the threatened harm possible to the party being

enjoined, whether there is a substantial likelihood that the movant will prevail

at trial, and whether the grant of the interlocutory injunction will not disserve

the public interest. Holton v. Physician Oncology Services, LP, at 866 (2). This

Court will not overturn a trial court’s decision to grant an interlocutory

injunction unless an error of law by the trial court contributed to the decision,

or there was no evidence on an element essential to relief, or the trial court

manifestly abused its broad discretion. Id. at 867 (2).

      IACA contends that the superior court did indeed abuse its discretion in

granting the interlocutory injunction because it treated the state trademark

registrations as mandatory for establishing protectable trademark rights rather

                                        4
than as permissive, that IACA owned prior rights in the Marks by virtue of

decades of use, and that because of its status as “senior user” of the Marks, in

order to issue the interlocutory injunction, the superior court must have

wrongfully found that IACA either abandoned its rights in the Marks or

assigned them to iLink. But, IACA’s arguments are unavailing.2

       Again, the purpose of an interlocutory injunction is to maintain the status

quo until the lawsuit can be thoroughly adjudicated. It is a stop-gap measure to

prevent irreparable injury or harm to those involved in the litigation. Thus, a

determination of the status quo is essential. Certainly, it can be argued that

inasmuch as iLink was the last entity, without controversy, to hold the named

pageants prior to the interlocutory injunction hearing, regardless of any issues

of registration of service marks by iLink or abandonment or assignment by

IACA, the status quo was iLink being the host of the events using the Marks.

But, this simplistic approach does not take into account the totality of the

evidence before the superior court at the time of the interlocutory injunction



       2
        IACA’s contentions of error and arguments in support thereof focus on the propriety of the
interlocutory injunction in regard to iLink’s claim of infringement of service marks registered
pursuant to state statutes; therefore, the issuance of injunctive relief based upon iLink’s additional
claims is not at issue in this appeal.

                                                  5
hearing in regard to issues of abandonment or assignment of the Marks. At that

time, the superior court had before it exhibits appended to iLink’s unanswered

verified complaint,3 which exhibits were expressly admitted into evidence by the

superior court at the hearing. These exhibits included copies of the state

registrations of the Marks and advertisements promoting iLink’s presentation

of the pageants under such Marks. The verified complaint also contained the

express “affidavit” by iLink’s president, Salman Molu, swearing to the accuracy

and truthfulness of the factual representations maintained in the complaint,

which included in pertinent part that iLink learned that IACA had discontinued

its attempts to conduct pageants; that on or about November, 2011, Molu

contacted IACA to confirm that IACA had no intention of conducting a pageant

in 2012; that Molu was informed by representatives of IACA, Rina Gupta and

Lakshmi Vedala, that this was true; that IACA had no objection to iLink hosting

the pageants under the names at issue because IACA had no plans to conduct

any pageants, and therefore, IACA had abandoned any claim to the Marks; that

IACA was one of the advertising sponsors of the 2012 pageants and that such


       3
        As noted, the hearing took place on June 26, 2013; IACA filed its “answer, affirmative
defenses, and counterclaims” on July 19, 2013.

                                              6
advertisement was provided at no charge in consideration of IACA’s

abandonment of any claims it had to the Marks which had already “discontinued

and abandoned”; and that because of the success of the pageants, IACA then

decided to renege on its agreement with iLink and sought to “reclaim” its

abandoned pageants and marks.                    Molu was present at the interlocutory

injunction hearing to confirm what was alleged in the verified complaint.4

        The morning of the hearing, IACA filed two affidavits in opposition to

iLink’s motion,5 one from Kaushal Tripathi, the president of IACA, and the

other from Rina Gupta, the vice-president of IACA, which alleged in relevant

part that there were no representations to Molu regarding IACA’s intent to

organize, sponsor, or host the pageants beyond 2012, and that Gupta had no

authority to make such decisions on IACA’s behalf; that IACA remained

committed to continuing the pageants once it was able to obtain the necessary

funding and identify appropriate personnel “to take the pageant forward”; and

        4
        It is plain from the transcript of the hearing, that the superior court accepted Molu’s presence
and represented willingness to confirm the allegations of the complaint as such confirmation.
        5
         IACA complains that the superior court did not consider, for temporal reasons or otherwise,
the affidavits prior to its decision to issue the interlocutory injunction. However, the superior court’s
order is silent on the matter, and inasmuch as the affidavits were filed with the superior court prior
to the hearing and the issuance of the interlocutory injunction five days later, they will be deemed
to have been considered by the superior court for the purpose of the present appeal.

                                                   7
that at no time did IACA decide to “abandon for all time” the pageants or its

trademark rights in them.

      Thus, the evidence regarding abandonment or assignment of the Marks,

was in dispute. And, where evidence is conflicting on an issue relevant to the

issuance of the interlocutory injunction, a trial court cannot be found to have

abused its discretion in either granting or denying such injunction.

Jansen-Nichols v. Colonial Pipeline Co., 295 Ga. 786, 788 (764 SE2d 361)

(2014).

      Further, the judgment of the superior court must be affirmed for yet

another reason. It was undisputed that the Marks were registered with the Office

of the Secretary of State of Georgia as owned by iLink, pursuant to OCGA § 10-

1-440, et seq. As such, the rights and remedies provided in the statutory scheme

applied. The relevant inquiry then is what impact did such registration have,

if any, with regard to the question of the “status quo” of use of the Marks.

      Trade names are protected in this State by statute as well as by common

law. Giant Mart Corp. v. Giant Discount Foods, Inc., 247 Ga. 775 (279 SE2d

683) (1981). OCGA § 10-1-440, et seq., provides for the protection of

trademarks, service marks, labels and advertising by virtue of registration with

                                       8
the Secretary of State of Georgia. Giant Mart Corp. v. Giant Discount Foods,

Inc., at 775-776.        The provisions of OCGA § 10-1-440 et seq., regarding

registration are permissive not mandatory, and registration itself does not

operate to deprive another of a previously acquired trade name. Womble v.

Parker, 208 Ga. 378, 380 (4) (67 SE2d 133) (1951). Nor does registration

under the statutory scheme “adversely affect the enforcement of rights in

trademarks or service marks acquired in good faith at any time in common law.”

OCGA § 10-1-452. However, what registration of a service mark or trademark

does do is permit the owner of the registered mark to invoke the remedy of a

civil action for damages pursuant to OCGA § 10-1-450,6 and more significantly

      6
          OCGA § 10-1-450 provides:

      Subject to Code Section 10-1-452, any person who shall:

               (1) Use, without the consent of the registrant, any reproduction, counterfeit, copy, or
               colorable imitation of a trademark or service mark registered under this part in
               connection with the sale, offering for sale, or advertising of any goods or services on
               or in connection with which such use is likely to cause confusion or mistake or to
               deceive as to the source of origin of such goods or services; or

               (2) Reproduce, counterfeit, copy, or colorably imitate any such trademark or service
               mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels,
               signs, prints, packages, wrappers, receptacles, or advertisements intended to be used
               upon or in connection with the sale or other distribution in this state of such goods
               or services;

      shall be liable to a civil action by the owner of such registered trademark or service mark for
      liquidated damages in the amount of $10,000.00, if such act has been committed with

                                                 9
for the purpose of the present appeal, to invoke injunctive relief pursuant to the

provisions of OCGA § 10-1-451.7 The registration of a “logo” or trade name as

a service mark or trademark is a prerequisite to relief under OCGA§§ 10-1-450;

10-1- 451. Diedrich v. Miller & Meier & Associates, Architects and Planners,

254 Ga. 734, 736 (2) (334 SE2d 308) (1985). But, once such registration is

      knowledge that the trademark or service mark has been registered under this part and such
      act has been committed without previously obtaining the consent of the owner thereof, and
      for any or all of the remedies provided in subsection (a) of Code Section 10-1-451, except
      that actual damages shall not be recoverable when liquidated damages are sought, and except
      that under paragraph (2) of this Code section the registrant shall not be entitled to recover
      profits or damages unless the acts have been committed with knowledge that such trademark
      or service mark is intended to be used to cause confusion or mistake or to deceive.
      7
          OCGA § 10-1-451 provides in relevant part:

      (a) Any owner of a trademark or service mark registered under this part may proceed by
      action to enjoin the manufacture, use, display, or sale of any counterfeits or imitations
      thereof; and any court of competent jurisdiction may grant injunctions to restrain such
      manufacture, use, display, or sale as may be by the court deemed just and reasonable and may
      require the defendants to pay to such owner all profits derived from such wrongful
      manufacture, use, display, or sale, and all damages suffered by reason of such wrongful
      manufacture, use, display, or sale, or both profits and damages. The enumeration of any right
      or remedy in this part shall not affect a registrant's right to prosecute under any penal law of
      this state.

      (b) Every person, association, or union of working men adopting and using a trademark, trade
      name, label, or form of advertisement may proceed by action; and all courts having
      jurisdiction thereof shall grant injunctions to enjoin subsequent use by another of the same
      or any similar trademark, trade name, label, or form of advertisement if there exists a
      likelihood of injury to business reputation or of dilution of the distinctive quality of the
      trademark, trade name, label, or form of advertisement of the prior user, notwithstanding the
      absence of competition between the parties or of confusion as to the source of goods or
      services, except that this Code section shall not deprive any party of any vested lawful rights
      acquired prior to March 4, 1955.



                                                10
accomplished, the plain language of OCGA§§ 10-1-450; 10-1- 451compels the

conclusion that for the limited purpose of invoking these statutory remedies, the

registrant is presumed to be the “owner” or “prior user” of the mark. Indeed, a

prior state registration gives rise to a rebuttable presumption of validity. Kyle

v. Georgia Lottery Corp., 304 Ga. App. 635, 637 (2) (698 SE2d 12) (2010),

quoting Harod v. Sage Products, 188 F. Supp.2d 1369, 1375 (S.D.Ga.2002).

And, while IACA’s offered affidavits may have rendered in dispute iLink’s

claims of abandonment or assignment of the Marks, the superior court was not

required to find that they had “overcome” the statutory presumption of validity,

for the purpose of the grant of interim injunctive relief. Indeed, the statutory

scheme, specifically OCGA § 10-1-451, not only provides for the permissive

grant of injunctions by a court of competent jurisdiction in subsection (a), but

in subsection (b) contains the mandate that such a court “shall grant injunctions

to enjoin subsequent use by another of the same [mark] . . . if there exists a

likelihood of injury to business reputation . . . .”

      Accordingly, there is no basis to overturn the superior court’s grant of

interlocutory injunctive relief to iLink.

      Judgment affirmed. All the Justices concur.

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   S14A1824. INDIA-AMERICAN CULTURAL ASSOCIATION, INC.
                 v. ILINK PROFESSIONALS, INC.


      MELTON, Justice, concurring.

      I write separately to point out that, while the general purpose of an

interlocutory injunction is to maintain the status quo, there are certain

considerations which should be taken into account in reviewing the propriety of

such an injunction. Among the factors to be considered by a trial court in

granting a temporary injunction are whether:

      (1) there is a substantial threat that the moving party will suffer
      irreparable injury if the injunction is not granted; (2) the threatened
      injury to the moving party outweighs the threatened harm that the
      injunction may do to the party being enjoined; (3) there is a
      substantial likelihood that the moving party will prevail on the
      merits of her claims at trial; and (4) granting the interlocutory
      injunction will not disserve the public interest.

(Citation omitted.) SRB Investment Services, LLLP v. Branch Banking and

Trust Co., 289 Ga. 1, 5 (3) (709 SE2d 267) (2011). Although the trial court’s

order in this case does not expressly address these factors, the transcript clarifies

that evidence relating to each factor was discussed and considered. First, with

regard to iLink’s injury, there was argument presented that iLink’s 2013 pageant

would suffer loss of contestants and revenue if it could not solely use the service
marks in issue. Second, the trial court expressly weighed the respective harms

to iLink and IACA at the hearing, and it determined that iLink’s for-profit

business would have more to lose than IACA’s non-profit community

organization. Furthermore, the trial court indicated that it was just employing an

equitable stop-gap measure, and, although it allowed iLink to temporarily use

the service marks, the trial court refused to enjoin IACA from holding its

pageant altogether. Third, based on the rebuttable presumption of iLink’s

ownership in the contested service marks due to state registration, Kyle v.

Georgia Lottery Corp., 304 Ga. App. 635, 637 (2) (698 SE2d 12) (2010), along

with iLink’s sworn contention that IACA had expressed that it no longer had

any intention of using the marks, it cannot be said that the trial court would have

abused its discretion in any determination that iLink had a substantial likelihood

of succeeding on the merits. Fourth and finally, by finding that both pageants

could be held, the trial court’s ultimate ruling limited any possible disservice to

the public. Therefore, considering all of these factors, it cannot be concluded

that the trial court abused its discretion in granting the interlocutory injunction.

      Nonetheless, as the trial court noted, the interlocutory injunction is just a

temporary remedy based on limited facts. A trial remains necessary to determine

the ultimate ownership in the disputed marks.

                                         2
