NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

UATP IP, LLC, UATP MANAGEMENT, LLC,

Plaintiffs-Appellees

v.

KANGAROO, LLC,

Defendant-Appellant

AIR ENTERTAINMENT GROUP, LLC, HAI CHANH 

QUACH, DAN TRINH, RAYMON HUNG, EDGAR 

ALEJANDRO GUERRERO, ALAN TRINH, TINA 

LUU, GOLDEN STAR GROUP, LTD.,

Defendants

______________________ 

2022-2047

______________________ 

Appeal from the United States District Court for the 

Southern District of Texas in No. 4:21-cv-02478, Judge 

Drew B. Tipton.

______________________ 

Decided: February 16, 2024

______________________ 

CHRIS PAUL HANSLIK, BoyarMiller, Houston, TX, argued for plaintiffs-appellees. 

 STEVEN JON KNIGHT, Chamberlain Hrdlicka, Houston, 

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2 UATP IP, LLC v. KANGAROO, LLC

TX, argued for defendant-appellant. Also represented by 

AMBER ALI, AJ FOREMAN, DAVID MIGUEL MEDINA. 

 ______________________ 

Before REYNA, TARANTO, and CHEN, Circuit Judges.

CHEN, Circuit Judge. 

This interlocutory appeal arises from a motion for a 

preliminary injunction filed below by Appellees UATP IP, 

LLC and UATP Management, LLC (collectively, UATP)

based on alleged patent and trade dress infringement by 

Kangaroo, LLC (Kangaroo). The United States District 

Court for the Southern District of Texas granted the preliminary injunction, enjoining Kangaroo from operating 

the “Adventure Hub” in its trampoline park, using certain 

colors, and using UATP’s confidential information. UATP 

IP, LLC v. Kangaroo, LLC, 2022 WL 2898951, at *2 (S.D. 

Tex. June 28, 2022) (Order). After full briefing and argument, we conclude the district court abused its discretion 

by failing to make the requisite findings to support its 

grant of the preliminary injunction. Further, we find that 

UATP failed to prove in its briefing below that it was likely 

to succeed on the merits of its patent infringement claim. 

Accordingly, we reverse the district court’s grant of the preliminary injunction as to the patent infringement claim, 

and vacate and remand as to the trade dress infringement 

claim.

BACKGROUND

UATP and Kangaroo are operators of “adventure 

parks”—indoor play facilities that include trampolines, ziplines, ropes courses, and other attractions. UATP operates at least 160 facilities (known as Urban Air Adventure 

Parks) throughout the country, primarily through franchisees. Kangaroo operates a single play park in Laredo, 

Texas that is located in the same building, and uses much 

of the same equipment, as a previously existing Urban Air 

Adventure Park franchise.

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UATP IP, LLC v. KANGAROO, LLC 3

UATP sued Kangaroo on July 30, 2021 on several 

grounds, including patent and trade dress infringement. 

In its operative complaint, UATP alleges that Kangaroo infringes U.S. Patent No. 10,702,729 (’729 patent), entitled 

“Multi-level Play Equipment.” UATP also alleges that 

Kangaroo infringes its trade dress, which UATP describes 

in its motion for preliminary injunction as “includ[ing] the 

neon orange, yellow, Urban Air Lime Green, and Cosmic 

Dust Blue color scheme prevalent throughout Urban Air 

franchises, Attractions and equipment and the layout and 

placement of the same, signage (content, lettering, and coloring), white ball pit, redundancy trampolines, no hold netting, configuration of the safety harnesses and attachment 

of same to the equipment, and one way directional tracking 

of the zip coaster . . . .” App. 614 (footnotes omitted). 

UATP filed its motion for preliminary injunction on 

June 9, 2022, over ten months after it filed its original complaint. The district court granted the motion on the 

grounds that UATP was likely to succeed on the merits of 

both its patent and trade dress infringement claims, and 

that UATP was entitled to a rebuttable presumption of irreparable harm that Kangaroo failed to rebut. Order, 2022 

WL 2898951, at *1–2.

DISCUSSION

This court generally reviews preliminary injunctions 

according to the law of the regional circuit (here, the Fifth 

Circuit), but “gives dominant effect to Federal Circuit precedent insofar as it reflects considerations specific to patent 

issues,” such as likelihood of success on the merits. Tinnus 

Enters., LLC v. Telebrands Corp., 846 F.3d 1190, 1202–03 

(Fed. Cir. 2017). Both the Federal Circuit and the Fifth 

Circuit review preliminary injunctions for an abuse of discretion. Id. at 1203. A party may establish an abuse of 

discretion “by showing that the court made a clear error of 

judgment in weighing relevant factors or exercised its discretion based upon an error of law or clearly erroneous 

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4 UATP IP, LLC v. KANGAROO, LLC

factual findings.” Abbott Lab’ys v. Andrx Pharms., Inc., 

452 F.3d 1331, 1335 (Fed. Cir. 2006) (quoting Polymer 

Techs., Inc. v. Bridwell, 103 F.3d 970, 973 (Fed. Cir. 1996)).

“A preliminary injunction is an extraordinary remedy 

never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A party seeking a preliminary injunction must establish “a reasonable likelihood of 

success on the merits, irreparable harm in the absence of a 

preliminary injunction, a balance of hardships tipping in 

its favor, and the injunction’s favorable impact on the public interest.” Murata Mach. USA v. Daifuku Co., 830 F.3d 

1357, 1363 (Fed. Cir. 2016) (quoting Nat’l Steel Car, Ltd. v. 

Canadian Pac. Ry., 357 F.3d 1319, 1324–25 (Fed. Cir. 

2004)). Under Federal Rule of Civil Procedure 52(a)(2), a 

district court must offer findings of fact and conclusions of 

law to justify the grant or denial of a preliminary injunction motion. Id. (citing Ali v. Quarterman, 607 F.3d 1046, 

1048 (5th Cir. 2010)).

I 

We turn first to UATP’s patent infringement claim. 

For a preliminary injunction motion, “[t]he burden is always on the movant to show that it is likely to succeed on 

the merits.” BlephEx, LLC v. Myco Industries, Inc., 24 

F.4th 1391, 1398 (Fed. Cir. 2022). To establish a likelihood 

of success on the merits, “the patentee seeking a preliminary injunction in a patent infringement suit must show 

that it will likely prove infringement, and that it will likely 

withstand challenges, if any, to the validity of the patent.” 

Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 

1376 (Fed. Cir. 2009). 

We find that UATP’s showing was legally insufficient 

to demonstrate likelihood of success on the merits of its patent infringement claim. “[W]hether performed at the preliminary injunction stage or at some later stage in the 

course of a particular case, infringement and validity analyses must be performed on a claim-by-claim basis.” 

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UATP IP, LLC v. KANGAROO, LLC 5

Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 

1343, 1351 (Fed. Cir. 2001). But neither UATP’s motion 

for preliminary injunction nor the Order ever identified 

any claim of the ’729 patent that Kangaroo allegedly infringes. Instead of comparing Kangaroo’s allegedly infringing equipment to any of the claims of the ’729 patent, UATP 

and the district court appear to have assumed that Kangaroo’s equipment infringes the patent because it was previously used in an Urban Air Adventure Park. But the 

district court never determined that Urban Air Adventure 

Parks practice a specific claim of the ’729 patent. By assuming that similarities between Kangaroo’s equipment 

and the equipment in an Urban Air Adventure Park constitute infringement without any discussion of the claims, 

the district court erred in finding a likelihood of success on 

the merits.

The district court likewise erred in failing to make any 

findings on irreparable harm, balance of the equities, or the 

public interest in its analysis relating to UATP’s patent infringement claim. See Fed. R. Civ. P. 52(a)(2) (“In granting 

or refusing an interlocutory injunction, the court must []

state the findings and conclusions that support its action.”). 

II

We turn next to UATP’s trade dress infringement 

claim. In the Fifth Circuit, to establish likelihood of success on the merits of a trade dress infringement claim, the 

plaintiff “must prove that: (1) its trade dress qualifies for 

protection; and (2) the trade dress has been infringed by 

demonstrating a likelihood of confusion in the minds of potential consumers.” Beatriz Ball, LLC v. Barbagallo Co. 

LLC, 40 F.4th 308, 317 (5th Cir. 2022). To qualify for protection, a trade dress must be (a) non-functional, and (b) 

distinctive, either inherently or through acquired 

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6 UATP IP, LLC v. KANGAROO, LLC

secondary meaning.1 Wal-Mart Stores, Inc. v. Samara 

Bros., Inc., 529 U.S. 205, 210–11 (2000).

Unlike UATP’s failure to present an adequate patent 

infringement case, UATP briefed all the necessary elements of its trade dress infringement claim in the proceedings below. However, the district court failed to make any 

findings on whether UATP’s alleged trade dress was nonfunctional, inherently distinctive, or had acquired secondary meaning. Instead, the district court found that UATP’s 

“trade dress claim against Kangaroo is likely to succeed on 

the merits, because it has shown that Kangaroo substantially imitated Urban Air’s total image by using the same 

colors, attraction structures, and park layout.” Order, 2022 

WL 2898951, at *1. The district court’s failure to explain 

how it arrived at this finding in view of the relevant trade 

dress likelihood of confusion factors, see Xtreme Lashes, 

LLC v. Xtended Beauty, Inc., 576 F.3d 221, 227 (5th Cir. 

2009), and failure to address the non-functionality or distinctiveness of UATP’s alleged trade dress, render its analysis too conclusory to permit meaningful appellate review. 

1 The parties dispute whether UATP must show that

its alleged trade dress has acquired secondary meaning, or 

whether a showing of inherent distinctiveness suffices. See 

UATP’s Response Brief at 23; Kangaroo’s Reply Brief at 

10–11. Which showing is required depends on whether 

UATP’s alleged trade dress is product packaging or product 

design. While product-packaging trade dress may be 

shown to be inherently distinctive, product-design trade 

dress can never be inherently distinctive and therefore cannot be protected without a showing of secondary meaning. 

Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 

214–15 (2000). We do not reach the issue of whether 

UATP’s alleged trade dress is product packaging or product 

design here, but provide this framing for the benefit of the 

parties and the district court upon remand.

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UATP IP, LLC v. KANGAROO, LLC 7

See, e.g., Gechter v. Davidson, 116 F.3d 1454, 1458 (Fed. 

Cir. 1997) (“A district court therefore may not merely state 

its findings in conclusory terms, but must provide sufficient detail to elucidate the reasoning by which the court 

reached its ultimate finding on an issue of fact or conclusion on an issue of law; otherwise, the appellate court is 

unable to carry out its appellate review function.”).

The district court’s findings relating to irreparable 

harm are also deficient. First, the district court erred in 

failing to address UATP’s ten-month delay in moving for a 

preliminary injunction. See Hybritech Inc. v. Abbott Lab’ys, 

849 F.2d 1446, 1457 (Fed. Cir. 1988) (“The period of delay 

exercised by a party prior to seeking a preliminary injunction in a case involving intellectual property is [] one factor 

to be considered by a district court in its analysis of irreparable harm.”). Second, the district court erred in finding

that UATP was entitled to a rebuttable presumption of irreparable harm under 15 U.S.C. § 1116(a). Section 1116(a)

entitles a plaintiff seeking a preliminary injunction under 

15 U.S.C. § 1125 to a rebuttable presumption of irreparable harm “upon a finding of likelihood of success on the 

merits for a violation.” Because the district court’s analysis 

was premised on a flawed likelihood of success finding, the 

court’s application of the presumption cannot stand. By 

failing to address UATP’s delay in filing its preliminary injunction request, and by improperly applying the statutory

presumption, the district court erred.

Finally, as with its analysis relating to the patent infringement claim, the district court’s analysis relating to 

the trade dress infringement claim failed to make sufficient 

findings on the balance of the equities or the public interest. Because the district court failed to “state the findings 

and conclusions that support its action” in granting the 

preliminary injunction, as required by Federal Rule of Civil 

Procedure 52(a)(2), the court erred. 

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8 UATP IP, LLC v. KANGAROO, LLC

CONCLUSION

We find that the district court abused its discretion by 

failing to make the requisite findings to support its grant 

of the preliminary injunction. Further, we find that there 

was a failure of proof in UATP’s briefing below on the likelihood of success on the merits of its patent infringement 

claim. Accordingly, we reverse the district court’s grant of 

the preliminary injunction as to the patent infringement 

claim. We vacate and remand as to the trade dress infringement claim.

REVERSED-IN-PART, VACATED-IN-PART, AND 

REMANDED

COSTS

Costs to Kangaroo. 

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