United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1189

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Faegre & Benson, LLP; Felicia J. *

Boyd; John Hinderaker, *

*

Plaintiffs - Appellees, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

William S. Purdy, sued as William *

S. Purdy, Sr., * [UNPUBLISHED]

*

Defendant - Appellant, *

*

Please Don't Kill Your Baby, a *

Minnesota Corporation; Does 1-10, *

*

Defendants. *

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Submitted: March 17, 2005

Filed: April 4, 2005

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Before MURPHY, SMITH, and COLLOTON, Circuit Judges.

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PER CURIAM.

This case is before the court on an interlocutory appeal from a preliminary

injunction. The law firm of Faegre & Benson (Faegre) and two of its partners

brought this action against appellant William S. Purdy under the Anticybersquatting

Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), the Lanham Act, 15 U.S.C.
1

The Honorable Michael J. Davis, United States District Judge for the District

of Minnesota.

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§§ 1114(a), 1125(a), the Minnesota Deceptive Trade Practices Act, Minn. Stat. Ann.

§325D.44, and state tort law, seeking injunctive and declaratory relief as well as

damages. Faegre moved for a preliminary injunction, and the district court1

 granted

the motion. Its order enjoined the defendants from using domain names identical to

or confusingly similar to Faegre's marks unless the protest or critical commentary

nature of the attached website is apparent from the domain name itself; from using

marks identical to or confusingly similar to Faegre's marks; from displaying any

website whose appearance is identical or confusingly similar to the trade dress of

Faegre's website; and from illegally appropriating Faegre names.

Purdy appeals, arguing that the injunction is overbroad, that his websites are

noncommercial and the domain names were used to make critical comments about

Faegre, that his use of Faegre's trademarks in domain names was not likely to cause

confusion as to the sponsor of the sites, and that his speech is protected by the First

Amendment. Faegre responds that the district court did not abuse its discretion in

granting the preliminary injunction because Purdy acted in bad faith under the ACPA,

Purdy's use of its trademarks was likely to confuse the public as to the source and

sponsorship of the websites, Purdy is able to express his views using domain names

that do not create confusion with its marks, and the First Amendment does not protect

unauthorized use of trademarks likely to cause confusion. Faegre also contends that

Purdy waived any challenge to the injunction involving Lanham Act and state law

issues because none were mentioned in his appellate brief.

The standard for deciding whether to grant a preliminary injunction requires

consideration of: (1) the probability of the movant's success on the merits; (2) the

threat of irreparable harm to the movant; (3) the balance between this harm and the

injury that granting the injunction will inflict on other interested parties; and (4)
2

Operating without the advice of counsel, Purdy filed an appeal of a contempt

order for violating the injunction in this case even though in Coca-Cola we had just

dismissed a similar appeal of his, explaining that an order finding a party in contempt

is not a final appealable order. Although we decline to impose sanctions for the

frivolous filing of his attempted appeal from the contempt order issued by the district

court, Purdy can not expect such forbearance in the future.

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whether the issuance of the preliminary injunction is in the public interest. Dataphase

Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). A

party seeking preliminary injunctive relief need not prove a greater than fifty percent

likelihood of success on the merits if the other factors weigh strongly in the party's

favor, id., but it must at least show there is "fair ground for litigation." See Watkins

Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). We review the district court's

injunction decision for abuse of discretion. United Indus. Corp. v. Clorox Co., 140

F.3d 1175, 1179 (8th Cir. 1998).

The parties briefed the issues on appeal and also presented oral argument to the

court, both sides referencing our earlier decision in Coca-Cola v. Purdy, 382 F.3d 774

(8th Cir. 2004), a case with similar but not identical issues. We apply the "pragmatic

approach" adopted in Dataphase, 640 F.2d at 113, to our review at this stage of the

litigation and in the interest of returning the case to the district court without undue

delay. Until now Purdy has proceeded in the district court without an attorney.2

 He

has had the benefit of legal counsel on his appeals, however, and this should help

expedite the further development of this case in the district court.

Based on our review of the record presented in the district court, see Economic

Development Corp. v. Model Cities Agency, 519 F.2d 740, 744 (8th Cir. 1975), the

findings of the district court, and the relevant statutory framework and legal

principles, we conclude that Purdy has not shown that the district court abused its

discretion in issuing the preliminary injunction.
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Accordingly, we affirm and remand for further proceedings. See 8th Cir. R.

47B. Faegre's motion for sanctions is denied.

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