                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 24 2013

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



                            FOR THE NINTH CIRCUIT


AMERICAN RENA INTERNATIONAL                      No. 12-57169
CORP., a California corporation; et al.,
                                                 D.C. No. 2:12-cv-06972-DMG-
              Plaintiffs - Appellees,            JEM

  v.
                                                 MEMORANDUM*
SIS-JOYCE INTERNATIONAL CO.
LTD., a California corporation and ALICE
ANNIE LIN, an individual,

              Defendants - Appellants.


                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                             Submitted July 11, 2013**
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: TASHIMA and BYBEE, Circuit Judges, and BENCIVENGO, District
Judge.***

      American Rena International Company and Sis-Joyce International Co. each

produce skin care, healthcare, and anti-aging products, under the respective brand

names of “Rena” and “ARëna.” Both brands use bottles of similar size, shape, and

style, and appear to share much of the same customer base.

      Rena sought a preliminary injunction in federal district court against Sis-

Joyce, asserting a number of claims relating to trademark infringement and unfair

competition. The district court granted Rena’s motion in part, finding that there

was likely trademark infringement, trade dress infringement, and intentional

interference with economic advantage, and granted Rena a preliminary injunction.

Although Sis-Joyce has not sought a stay of the preliminary injunction, which

remains in effect, Sis-Joyce has timely appealed the preliminary injunction. We

affirm the judgment of the district court.

      We review the district court’s grant of a preliminary injunction for abuse of

discretion. Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). Our review

“does not extend to the underlying merits of the case,” Johnson v. Couturier, 572

F.3d 1067, 1078 (9th Cir. 2009), and we afford particular deference to the district

        ***
             The Honorable Cathy Ann Bencivengo, District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.

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court’s findings of facts, which are reviewed only for clear error, Hawkins v.

Comparet-Cassani, 251 F.3d 1230, 1239 (9th Cir. 2001).

      “A plaintiff seeking a preliminary injunction must establish (1) that he is

likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the

absence of preliminary relief, (3) that the balance of equities tips in his favor, and

(4) and that an injunction is in the public interest.” Toyo Tire Holdings of Ams. Inc.

v. Cont’l Tire N. Am., Inc., 609 F.3d 975, 982 (9th Cir. 2010) (citing Winter v.

NRDC, Inc., 129 S. Ct. 365, 374 (2005)).

      The district court did not abuse its discretion in concluding that Rena was

likely to succeed on the merits of its claims for trademark infringement, trade dress

infringement, and intentional interference with economic advantage. First, given

the lack of evidence in the record supporting Sis-Joyce’s claims of priority, the

district court did not abuse its discretion in concluding that Rena is “the owner of a

valid, protectable [trade]mark,” Grocery Outlet, Inc. v. Albertson’s Inc., 497 F.3d

949, 951 (9th Cir. 2007) (per curiam). The district court also appropriately

considered the eight-factor test set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d

341, 348–49 (9th Cir. 1979), abrogation on other grounds recognized in Mattel,

Inc. v. Walking Mountain Prods., 353 F.3d 792, 800 (9th Cir. 2003), in concluding

that Sis-Joyce is using a confusingly similar mark. Second, the court reasonably


                                            3
found that Rena would likely “prove[] trade dress infringement” by

“demonstrat[ing] that (1) the trade dress is nonfunctional, (2) the trade dress has

acquired secondary meaning, and (3) there is a substantial likelihood of confusion

between the plaintiff’s and defendant’s products.” Art Attacks Ink., LLC v. MGA

Entm’t, Inc., 581 F.3d 1138, 1145 (9th Cir. 2009). Third, the district court

reasonably found that Rena was likely to succeed on the merits of its intentional

interference with prospective economic advantage claim under California law

because it could show (1) the existence of at least one specific economic

relationship between plaintiffs and third parties that may economically benefit

plaintiffs; (2) knowledge by the defendants of this relationship; (3) intentional and

wrongful acts by the defendants designed to disrupt the relationship; (4) “actual

disruption of the relationship”; and (5) economic harm proximately caused by

defendant. Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937, 950 (Cal.

2003). Sis-Joyce’s assertion that “[t]here is no evidence supporting interruption of

relationship” is contradicted by the record, and therefore the district court did not

clearly err in finding facts that support the Korea Supply elements for an

intentional interference claim.

      The district court also did not abuse its discretion in finding that irreparable

harm will likely result in the absence of preliminary injunction relief. Rena has


                                           4
provided “[e]vidence of threatened loss of . . . customers or goodwill,” Stuhlbarg

Int’l Sales Co., v. John D. Brush & Co., 240 F.3d 832, 841 (9th Cir. 2001), and

pointed to a wide range of “intangible injuries, such as damage to ongoing

recruitment efforts and goodwill,” Rent-A-Center, Inc. v. Canyon Television &

Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991), likely to result—and

already resulting—from Sis-Joyce’s infringing practices. Even if Rena’s bad

business practices contributed in some part to its decline in business, the district

court did not clearly err in finding that Sis-Joyce’s actions, too, have significantly

contributed to Rena’s loss of business.

        Moreover, the district court did not abuse its discretion in finding that the

balance of hardships favors Rena. That the present injunction will allegedly drive

Sis-Joyce out of business does not weigh in Sis-Joyce’s favor where it appears that

Sis-Joyce’s entire business model is premised on its infringing use of the ARëna

mark.

        Nor did the district court abuse its discretion in finding that the public

interest favors the injunction. An injunction that prevents consumer confusion in

trademark cases, as this injunction does, serves the public interest. Internet

Specialties W., Inc. v. Milon-DiGiorgio Enters., Inc., 559 F.3d 985, 993 (9th Cir.

2009).


                                             5
      Finally, we do not find this injunction to be unconstitutionally overbroad,

because it does not prevent Sis-Joyce from selling non-infringing products or from

engaging in speech that does not constitute infringement or intentional interference

with economic advantage. Sis-Joyce cannot sow confusion in the marketplace by

violating the trademark rights of others and then escape the consequences by

arguing that any action curtailing its infringing actions impinges on its

Constitutional rights.

      AFFIRMED.




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