While the hearing before the District Court approached a full scale trial, the Judge was not authorized to determine the case on its merits, but only to decide whether plaintiff was entitled to injunctive relief. In order to be entitled to such relief plaintiff had the burden of establishing a clear case of irreparable injury and of convincing the Court that the balance of injury favored the granting of the injunction, Set-O-Type Co. v. American Multigraph Co., 55 F.2d 800 (6th Cir. 1932). Probability of success on the trial must also be shown, H.E. Fletcher Co. v. Rock of Ages Corp., 326 F.2d 13 (2d Cir. 1963).
". . . In order to be entitled to such relief plaintiff had the burden of establishing a clear case of irreparable injury and of convincing the Court that the balance of injury favored the granting of the injunction, Set-O-Type Co. v. American Multigraph Co., 55 F.2d 800 (6th Cir., 1932). Probability of success on the trial must also be shown, H. E. Fletcher Co. v. Rock of Ages Corp., 326 F.2d 13 (2d Cir., 1963)."
In Garlock, Inc. v. United Steel Incorporated, 404 F.2d 256 (C.A. 6, 1968), the Court of Appeals for this Circuit said: "In order to be entitled to such relief plaintiff had the burden of establishing a clear case of irreparable injury and of convincing the Court that the balance of injury favored the granting of the injunction, Set-O-Type Co. v. American Multigraph Co., 55 F.2d 800 (6th Cir. 1932). Probability of success on the trial must also be shown, H.E. Fletcher Co. v. Rock of Ages Corp., 326 F.2d 13 (2d Cir. 1963).
The facts offered to support a temporary injunction should be fully and definitely disclosed. See Set-O-Type Co. v. American Multigraph Co., 55 F.2d 800 (6th Cir. 1932). It would be an abuse of judicial discretion to grant a temporary injunction based upon only the allegations of Counts I and II in this instance. Count III of the complaint alleges that the defendants have failed to act in good faith as required by the Automobile Franchise Dealers Act ( 15 U.S.C. ยง 1222).
It is well settled that the plaintiff's right to a preliminary injunction rests in the sound discretion of the Court, and that to warrant its granting the propriety of the relief must be clearly and convincingly shown. National Commodities Co. v. Viret, 2 Cir., 296 F. 664; Set-O-Type Co. v. American Multigraph Co., 6 Cir., 55 F.2d 800; Caron Corporation v. Maison Jeurelle-Seventeen, D.C., 26 F. Supp. 560. Since I am not convinced of the validity of the plaintiff's patents the motion for a preliminary injunction is denied. Settle order on notice.
"The Court: That is what I think it is." While agreeing that the issuance of a preliminary injunction is within the sound discretion of the Trial Court, defendants urge that, nevertheless, it is an extraordinary remedy and that one should not issue unless both the validity of the patent and infringement are clear; and further, that where a patent has been held valid and infringed in one suit, a preliminary injunction sought in another on the same patent need not be granted, citing a number of authorities, among others: Set-O-Type Co. v. American Multigraph Co., 6 Cir., 55 F.2d 800; Diamond Power Specialty Corporation v. Bayer Co., 8 Cir., 95 F.2d 541; Outlook Co. v. Presto Cloth Mfg. Co., 6 Cir., 267 F. 193; Schick Dry Shaver Incorporated v. General Shaver Corporation, D.C., 21 F. Supp. 718; Automatic Devices Corporation v. Cumo Engineering Corporation, D.C., 34 F. Supp. 144. As above indicated, in the instant proceeding, the validity of the patent is not challenged.
Since there is nothing in the use of words or appearances that makes a clear case of infringement, the Court, in the absence of such a showing at this stage of the proceeding, will not find that there has been an infringement by the defendant of plaintiff's trademark. Set-O-Type Co. v. American Multigraph Co., 6 Cir., 55 F.2d 800; National Commodities Co. v. Viret, 2 Cir., 296 F. 664; Lektro-Shave Corporation v. General Shaver Corp., 2 Cir., 92 F.2d 435. The conclusions the Court has reached respecting the claim of trademark infringement apply with like force and effect to the claim of unfair competition.