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SPIROL INTL. CORP. v. VOGELSANG CORP.

November 3, 1986

SPIROL INTERNATIONAL CORP. and C.E.M. Co., Inc., Plaintiffs,
v.
VOGELSANG CORPORATION, Defendant



The opinion of the court was delivered by: COWEN

 I. INTRODUCTION

 Plaintiffs, Spirol International Corp. and C.E.M. Co., Inc., come before this Court asking for injunctive and other relief against defendant, Vogelsang Corporation, preventing defendant from infringing on their trademarks and engaging in unfair competition. I will deny the preliminary injunction because I am not satisfied that the plaintiffs have met their burden in showing that they are entitled to injunctive relief.

 II. FACTS

 The defendant, also a manufacturer of fasteners and other similar products and a United States subsidiary of a German competitor of the plaintiffs around the world, has now attempted to manufacture this spiral-shaped pin and thereby capture some of the plaintiffs' market share in this country. To that end, the defendant has advertised in several trade magazines, including some in which the plaintiffs also advertise, calling its product a "COILED SPIRAL PIN."

 Both parties sell their goods primarily, if not exclusively, to original equipment manufacturers (O.E.M.s), e.g., Ford Motor Corp., General Motors Corp., various aerospace and defense contractors, etc.

 The plaintiff argues that the proper and generic name for the product is a "COILED SPRING PIN," the defendant argues that it calls the product what it is; a "SPIRAL PIN," and this is what those purchasing the product normally would call it. Nonetheless, the plaintiffs have alleged that the defendant's use of the word "SPIRAL" in connection with a product they manufacture infringes on their trademark "SPIROL" and their mechanical fastener of the same name, and that this use allows defendant to unlawfully trade on the goodwill and reputation of the plaintiffs.

 The plaintiffs seek an injunction preventing the defendant's further use of this term in connection with this product, compensatory and treble damages, disgorgement of profits for the defendant's use of this trademark, costs and attorneys fees, and the return and destruction of all literature bearing the allegedly infringing terms.

 III. DISCUSSION

 Injunctive relief is not automatically granted; the party seeking an injunction must show that it is entitled to this remedy. Injunctive relief may be granted in the discretion of the court "if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party 'will be irreparably injured pendente lite if relief is not granted'." Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir.1982), citing Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S. Ct. 573, 66 L. Ed. 2d 473 (1980). The court may also consider the possible harm to other interested persons or to the public interest. Kershner, 670 F.2d at 443.

 Whatever factors are considered, the decision to grant or deny the injunctive relief is within the sound discretion of the judge, "who must balance all of these factors in making a decision." Id.

 In considering whether or not to issue an injunction, it has been stated on at least one occasion "to doubt is to deny." Graham v. Triangle Publications, Inc., 233 F. Supp. 825, 829 (E.D.Pa.1964), aff'd, 344 F.2d 775 (3d Cir.1965), citing Madison Square Garden Corp. v. Braddock, 90 F.2d 924, 927 (3d Cir.1937). I, like Judge Higginbotham in Graham, "have doubt in this case." Graham, 233 F. Supp. at 829. I do not ...


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