                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 26 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


MUNCHKIN, INC., a Delaware                       No. 11-55630
corporation,
                                                 D.C. No. 2:11-cv-00503-AHM-RZ
              Plaintiff-counter-defendant -
Appellee,
                                                 MEMORANDUM*
  v.

PLAYTEX PRODUCTS, LLC, a
Delaware limited liability company,

              Defendant-counter-claimant -
Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                    A. Howard Matz, District Judge, Presiding

                     Argued and Submitted October 14, 2011
                              Pasadena, California

Before: PREGERSON and BYBEE, Circuit Judges, and DAVIDSON, Senior
District Judge.**



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Glen H. Davidson, Senior District Judge for the U.S.
District Court for Northern Mississippi, sitting by designation.
      Playtex Products, LLC appeals the district court’s denial of its request for a

preliminary injunction on its literal falsity claim under Section 43(a) of the Lanham

Act. As an initial matter, the district court applied the correct standard in evaluating

Playtex Products, LLC’s likelihood of success on the merits. See Southland Sod

Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997). In conducting its

review, the district court found that scientific evidence and expert testimony supported

Munchkin, Inc.’s advertising claim and indicated that its test was scientifically

reliable. See id. (“To prove that an advertisement claim based on product testing is

literally false, a plaintiff must do more than show that the tests supporting the

challenged claim are unpersuasive. Rather, the plaintiff must demonstrate that such

tests are not sufficiently reliable to permit one to conclude with reasonable certainty

that they established the claim made.”) (citations and quotation marks omitted). As

such, the district court did not abuse its discretion in denying Playtex Products, LLC’s

request for a preliminary injunction.

      AFFIRMED.




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