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United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 22-2075

___________________________ 

H&R Block, Inc.; HRB Innovations, Inc.

 Plaintiffs - Appellees

v.

Block, Inc.

 Defendant - Appellant

____________

Appeal from United States District Court 

for the Western District of Missouri - Kansas City

____________ 

Submitted: September 21, 2022

Filed: January 24, 2023

____________ 

Before GRUENDER, MELLOY, and ERICKSON, Circuit Judges. 

____________

ERICKSON, Circuit Judge.

Block, Inc. appeals from an order granting in part H&R Block, Inc. and HRB 

Innovations, Inc.’s (collectively, “H&R Block”) motion for a preliminary injunction. 

The district court enjoined Block, Inc. from engaging in the following conduct: 

1. from using “Block, Inc.,” or “Block,” or a close variant, such as 

“Blocks,” in connection with or in close proximity to Cash App Taxes 
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or the green square Cash App Taxes logo. This means that Defendant 

cannot operate Cash App Taxes as a feature of Cash App or be linked 

to Cash App through a separate application so long as Cash App also 

refers to Block, Inc. It also means that Cash App Taxes cannot be 

owned by a legal entity with the word “Block” in it.

2. from publicly communicating though advertising, press releases, 

social media, on its websites, or other public tools, that it is associated 

with Cash App Taxes or any platform or internet function that contains 

or embeds Cash App Taxes or other brands or products associated with 

taxes or tax services.

H&R Block claims that use of “Block” and a green square logo in connection 

with tax services: (1) is likely to cause confusion because H&R Block and Block, 

Inc. both offer overlapping services, including tax preparation and filing, other 

related financial services, and charitable services; (2) has confused consumers, the 

media, and investors; and (3) will cause irreparable harm, as it will undermine H&R 

Block’s ability to control its public image and perception and lead consumers to 

incorrectly believe Block, Inc’s tax service is connected to H&R Block or one of the 

“building blocks” in the Block, Inc. family of brands. For the reasons stated below, 

we reverse and vacate the preliminary injunction. 

I. BACKGROUND

H&R Block was founded in 1955 as a bookkeeping business. It now 

specializes in income tax preparation and other tax and financial services. Having

invested billions of dollars on national advertising campaigns, H&R Block has 

developed a broad market presence, both in person and online. H&R Block’s

financial services include: pre-paid debit cards, lines of credit, loans, access to credit 

scores, money management, payment processing, and mobile banking platforms, 

such MyBlock. Under its “Block Advisors” brand, H&R Block offers tax, financial, 

accounting, bookkeeping, and payroll services to small businesses. H&R Block also 

operates a community impact program called “Make Every Block Better.” The 

company asserts that it is known today as not only “H&R Block” but also “Block.” 
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As part of its branding, H&R Block owns several federal trademark registrations and 

uses a green square logo in connection with its products and services. 

Square, Inc., founded in 2009, began with a product called “Square” that was 

a payment card reader and point-of-sale software, which allowed businesses and 

individual sellers to accept customer payments. Over time, Square, Inc. acquired or 

developed other businesses. One of its businesses is Cash App, which started in 

2013 as Square Cash. Cash App is a peer-to-peer money transfer service that allows 

users to deposit and store money on the app. Cash App’s name and logo are federally 

recognized trademarks in the form of a stylized white dollar sign surrounded by a 

green square logo with rounded corners. Cash App is purely digital, there are no 

brick-and-mortar stores, and the services are not available in online marketplaces. 

In November 2020, Square, Inc. acquired free tax service Credit Karma Tax, which 

was rebranded “Cash App Taxes” and integrated into the Cash App platform for the 

2022 tax season. Cash App Taxes users must download and install Cash App to 

access the free tax services. 

 

Square, Inc. was renamed Block, Inc. in December 2021. The company filed 

an application to register the name “Block”.1

 In its trademark application, Block 

1

While this appeal was pending, the United States Patent and Trademark 

Office issued a Non-Final Office Action refusing to grant Block, Inc.’s application 

to register a design mark using the work “Block” because of the similarity of the 

registered mark(s) to the proposed mark and the similarity of the goods and/or 

services is likely to cause consumer confusion. Block, Inc. has been given six 

months from November 15, 2022, to respond with evidence and arguments in 

support of registration. This tentative decision by the USPTO was not before the 

district court when it granted H&R Block’s motion for a preliminary injunction. 

Given its tentative nature, we give this decision little weight. See Everest Cap. Ltd.

v. Everest Funds Mgmt., L.L.C., 393 F.3d 755, 764 (8th Cir. 2005) (upholding the

district court’s exclusion of USPTO decision suspending application of registration 

mark because there may be a likelihood of confusion on the ground that “the 

Trademark Office suspension notice had little probative value because it stated a 

tentative opinion, not an administrative finding of fact based upon an adequate 

record”). 
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stated its intention to use the new name and logo for “holding company services,” 

including business management, administration, promotion, and consulting services 

for subsidiaries. It selected the name “Block” for a number of reasons, including its 

association with “building blocks, neighborhood blocks and their local businesses, 

communities coming together at block parties full of music,2 a blockchain, a section 

of code, and obstacles to overcome[,]” and in connection with the adoption of a 

“House of Brands” marketing architecture, which involves separating the corporate 

identity from the names of the businesses or products the business owns. Block, 

Inc.’s chief executive officer publicized the name change on his Twitter account, 

which has over six million followers. The company’s business units, such as Cash 

App, Square, and TIDAL, were included in publicity surrounding the name change. 

References to Block, Inc. now appear on the Cash App website and in connection 

with its mobile applications. 

After announcement of the rebrand, some social media users posted comments

about whether the name change was too close to H&R Block, while others opined 

that people know the difference between H&R Block and Block, Inc. Some articles 

linked Cash App and its new tax services to “Block.” Other publications contained 

stories about Cash App under profiles about H&R Block. H&R Block’s chief 

executive officer testified that he was not concerned about the green square logos of 

Cash App and Credit Karma3 until Block, Inc.’s name change and its acquisition and 

integration of Credit Karma Tax into Cash App Taxes. 

2

Block, Inc.’s businesses also include TIDAL (a music streaming service), 

Spiral (a business to promote the adoption blockchain-based currency Bitcoin), and 

TBD (a decentralized finance platform in development, which is also based on 

blockchain technology). 

3

Prior to its purchase by Block, Inc., Credit Karma Tax operated within the 

Credit Karma mobile app, which was identified by a dark green square with white 

“ck” script letters.
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Fifteen days after the name change was announced, H&R Block commenced 

this action alleging infringement on its trademark rights, in violation of the Lanham 

Act, 15 U.S.C. § 1114, and Missouri law. Shortly after commencing the action, 

H&R Block moved for a preliminary injunction. After analyzing the familiar 

Dataphase4 factors, the district court granted in part H&R Block’s request for a 

preliminary injunction. Block, Inc. timely filed this interlocutory appeal. We 

granted Block, Inc.’s motion for a stay and expedited the appeal. 

II. DISCUSSION

A preliminary injunction is an “extraordinary remedy never awarded as of 

right.” Progressive Techs., Inc. v. Chaffin Holdings, Inc., 33 F.4th 481, 485 (8th 

Cir. 2022) (quoting Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). 

A plaintiff seeking a preliminary injunction bears the burden of showing that such 

extraordinary relief is warranted. Dataphase, 640 F.2d at 113. Under the familiar 

Dataphase analysis, a party seeking a preliminary injunction must demonstrate: (1) 

the threat of irreparable harm; (2) the state of the balance between the harm and the 

injury granting an injunction will inflict on other parties; (3) the probability it will 

succeed on the merits; and (4) the public interest. Calvin Klein Cosmetics Corp. v. 

Lenox Laboratories, Inc., 815 F.2d 500, 503 (8th Cir. 1987) (citing Dataphase, 640 

F.2d at 113-14). 

While mindful that a movant carries a “heavier” burden when granting a 

preliminary injunction has the effect of awarding the movant substantially the relief 

it could obtain after a trial on the merits, see id., we review the district court’s 

ultimate ruling on a preliminary injunction “for abuse of discretion, with factual 

findings examined for clear error and legal conclusions considered de novo.” 

Brakebill v. Jaeger, 932 F.3d 671, 676 (8th Cir. 2019). “An abuse of discretion 

occurs when a relevant factor that should have been given significant weight is not 

4

Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en 

banc). 
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considered; when an irrelevant or improper factor is considered and given significant 

weight; and when all proper factors, and no improper ones, are considered, but the 

court, in weighing those factors, commits a clear error of judgment.” Novus 

Franchising, Inc. v. Dawson, 725 F.3d 885, 893 (8th Cir. 2013) (quotation omitted). 

A. Probability of Success on the Merits

Trademark infringement may be established by showing “the use of similar 

marks on similar or related products or services if such use creates a likelihood of 

confusion.” Select Comfort Corp. v. Baxter, 996 F.3d 925, 932 (8th Cir. 2021). To 

establish trademark infringement, H&R Block must show: (1) it has a valid, 

protectible mark, and (2) there is a likelihood of confusion between its mark and the 

marks that Block, Inc. is using. Sturgis Motorcycle Rally, Inc. v. Rushmore Photo 

& Gifts, Inc., 908 F.3d 313, 322 (8th Cir. 2018); see also 15 U.S.C. § 1125(a)(1)(A). 

Assuming, without deciding, the disputed issue of whether H&R Block has a 

valid, protectible mark for “Block”, we turn to the second prong required for 

establishing trademark infringement. The district court’s determination on 

likelihood of confusion is a finding of fact that we review for clear error. Select 

Comfort, 996 F.3d at 934. The “core inquiry” when assessing the likelihood of 

confusion is “whether the relevant average consumers for a product or service are 

likely to be confused as to the source of a product or service or as to an affiliation 

between sources based on a defendant’s use.” Id. at 933. Our circuit has set forth a 

list of nonexclusive, nonexhaustive factors to assess likelihood of confusion, which 

includes: “(1) the strength of the owner’s mark; (2) the similarity of the owner’s 

mark and the alleged infringer’s mark; (3) the degree to which the products compete 

with each other; (4) the alleged infringer’s intent to ‘pass off’ its goods as those of 

the trademark owner; (5) incidents of actual confusion; and (6) the type of product, 

its cost and conditions of purchase.” Id. (citing SquirtCo v. Seven-Up Co., 628 F.2d 

1086, 1091 (8th Cir. 1980)). “[N]o one factor controls, and because the inquiry is 

inherently case-specific, different factors may be entitled to more weight in different 

cases.” Cmty. of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus 
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Christ’s Church, 634 F.3d 1005, 1009 (8th Cir. 2011) (quoting Kemp v. Bumble Bee 

Seafoods, Inc., 398 F.3d 1049, 1053 (8th Cir. 2005)). 

In evaluating and weighing each of these factors, the district court found that 

none of the six factors favored Block, Inc. It concluded that one factor—competitive 

proximity—favored H&R Block; two other factors—strength of the mark and

similarity of the marks—“heavily” or “strongly” favored H&R Block; one factor—

actual consumer confusion—“slightly” favored H&R Block, and one factor—

consumer sophistication—tipped in H&R Block’s favor or was neutral. Block, Inc. 

contends the district court (a) legally erred by giving no weight to its evidence 

regarding lack of consumer confusion; (b) wrongly compared H&R Block with 

Block rather than the actual brands used for Block, Inc.’s tax services (Cash App 

and Cash App Taxes); and (c) abused its discretion in weighing the equities. 

1. Strength of H&R Block’s Marks

When examining the likelihood of consumer confusion, “[a] strong and 

distinctive” mark is “entitled to greater protection than a weak or commonplace 

one.” SquirtCo., 628 F.2d at 1091. We have noted that evidence regarding the 

amount of money a company has spent on advertising “is circumstantial evidence of 

commercial strength, but says little about ‘minds of consumers,’ which is the 

relevant unit of analysis for likelihood of confusion.” ZW USA, Inc. v. PWD Sys., 

LLC, 889 F.3d 441, 446 (8th Cir. 2018) (quoting KP Permanent Make-Up, Inc. v. 

Lasting Impression I, Inc., 543 U.S. 111, 117 (2004)). Although the parties disputed 

many of the facts and their significance, there is adequate support for the trial court’s 

finding that H&R Block demonstrated its registered marks are commercially strong 

and its common law mark “Block” was relatively strong. Given the evidence in the 

record, the district court did not clearly error in assessing the strength of H&R 

Block’s marks or by finding this factor weighed in favor of H&R Block.
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2. Similarity of the Marks

When analyzing the similarity of the marks at issue, courts are to examine 

“the impression that each mark in its entirety is likely to have on a purchaser 

exercising the attention usually given by purchasers of such products.” Id. (quoting 

Duluth News-Trib., a Div. of Nw. Publ’ns, Inc. v. Mesabi Publ’g Co., 84 F.3d 1093, 

1097 (8th Cir. 1996)). “Otherwise similar marks are not likely to be confused when 

used in conjunction with the clearly displayed name of the manufacturer.” Id. at 447 

(cleaned up). Here, the district court found visual similarities between H&R Block’s 

standalone green square and the Cash App logo consisting of a dollar sign 

surrounded by a green square logo with rounded corners. It further found that 

“Block” is the distinguishing feature in H&R Block’s family of “Block” marks and 

that Block, Inc. is also using “Block” as its distinguishing feature. The district court 

determined that the similarity factor weighed “strongly” H&R Block’s favor. 

Below (and on appeal), Block, Inc. highlighted social media postsrecognizing

H&R Block and Block, Inc. as different companies. Block, Inc. also pointed to 

market conditions and the way consumers interact with the products to demonstrate

that similarity and confusion between Block, Inc. and H&R Block is diminished. As 

noted by the district court, conditions of purchase provide an opportunity to 

differentiate the parties’ products—Cash App is accessible only by downloading an 

app while H&R Block’s services are widely available in person, through stand-alone 

software sold at many retailers, and on an app. Block, Inc. asserts it only offers tax 

services under Cash App’s branding, not Block, Inc.’s branding. To get to Cash App 

Taxes, Block, Inc. maintains that customers must first download Cash App from 

either the Google Play Store or the Apple App store, navigate through the Cash App 

application, and select the Cash App Taxes feature. During that journey, Block, Inc. 

asserts that consumers encounter its corporate name in “fine print,” such as in the 

Cash App Terms of Service, the Cash App Consent to Disclosure, and other 

necessary legal disclosures that are required to reference the official corporate entity. 

In discounting these aspects of the products, the district court determined that “an 

‘appreciable’ number of consumers are likely to read agreements to which they are 
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committing themselves” and that “Cash App itself has several references to Block, 

Inc.,” although it provided no cite to evidence in the record or other authority 

supporting these findings. Dist. Ct. Order at 36. 

Upon review of the record, there is apparent similarity between the marks at 

issue. The district court’s findings on the similarity factor are a permissible view of 

the evidence; however, there is evidence in the record, as highlighted by Block, Inc., 

to undermine the district court’s ultimate conclusion that the similarity factor 

“strongly” favors H&R Block. When examining all the evidence in the record, there 

are observable differences between the two logos and the competing products. 

While both companies are targeting consumers looking for free tax services, the 

products are available through different means. Based on the record as a whole, it

was clear error for the district court to conclude the similarity factor “strongly” 

favored H&R Block.

3. Product Competition

H&R Block and Block, Inc. provide some overlapping services and compete 

for consumers interested in free tax preparation services. Direct competition can 

increase the likelihood of consumer confusion. ZW USA, Inc., 889 F.3d at 448; see

Anheuser-Busch, Inc. v. Balducci Publ’ns, 28 F.3d 769, 774 (8th Cir. 1994) 

(citations omitted) (noting the likelihood of confusion has an expansive 

interpretation that protects against use of a “mark on any product or service which 

would reasonably be thought by the buying public to come from the same source, or 

thought to be affiliated with, connected with, or sponsored by the trademark 

owner”). Although the products provided by each company are accessible through 

different channels, a reasonable consumer looking for free tax services might assume

that a brick-and-mortar service provider, like H&R Block, could also have an app. 

The district court did not clearly err in finding the two companies are in close 

competitive proximity, which renders confusion more likely, or that this factor 

favored of H&R Block.
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4. Intent to Confuse the Public

The district court found the record had not been fully developed on whether 

Block, Inc. intended to mislead and cause consumer confusion when Square 

acquired a tax business and changed its name to Block, Inc. Without a developed 

record, the court found this factor favored neither party. We find no clear error in 

the district court’s examination of the intent factor.

 5. Evidence of Actual Confusion

In analyzing evidence of actual confusion, the district court relied on articles 

that appeared to associate Cash App with H&R Block and credited the social media 

posts submitted by H&R Block reflecting consumer confusion. The court found

unpersuasive the social media posts from Block, Inc. suggesting confusion would be 

unlikely. H&R Block did not submit evidence identifying any consumer who had 

ever actually confused Cash App taxes with any of H&R Block’s products. H&R 

Block conceded at oral argument that it had “not identified for us a single customer 

who used Cash App, thinking it was an H&R Block product.” Hrg. Tr. 90:19-21. 

The district court clearly erred in finding evidence of actual consumer confusion. 

Cf. Duluth News-Trib., 84 F.3d at 1098 (demonstration of actual confusion through 

several instances of misdirected mail and phone calls failed to raise a factual dispute 

because the evidence was vague, unreliable, de minimis, and showed inattentiveness 

on the part of the caller or sender rather than actual confusion).

6. Consumer Sophistication

When examining consumer sophistication for purposes of trademark 

infringement, a court isto stand “in the shoes of the ordinary purchaser, buying under 

the normally prevalent conditions of the market and giving the attention such 

purchasers usually give in buying that class of goods.” General Mills, Inc. v. 

Kellogg Co., 824 F.2d 622, 627 (8th Cir. 1987) (quotation and citation omitted). The 

district court, in applying this standard, found that even if conditions of purchase 
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provide some opportunity to differentiate the parties’ products, the purchasing 

conditions are not so different that they dispel the risk of confusion. Thus, even 

careful consumers could be confused about whether H&R Block is affiliated with 

Block, Inc., particularly in the context of do-it-yourself tax preparation. The district 

court concluded this factor tips in H&R Block’s favor, or at a minimum, is neutral. 

The district court’s interpretation of the evidence is sustainable on this record, and 

we are not left with a definite conviction that the district court made a mistake in 

analyzing or weighing this factor. 

7. Overall Weighing of Evidence of Likelihood of Confusion

The district court’s weighing of the SquirtCo factors is a factual finding 

subject to clear error review. See Kemp, 398 F.3d at 1053-54 (citations omitted). 

To succeed on the merits of its trademark infringement claim, H&R Block must 

show that Block, Inc.’s use of a protected mark “creates a likelihood of confusion, 

deception, or mistake on the part of an appreciable number of ordinary” consumers. 

Gen. Mills, Inc. v. Kellogg Co., 824 F.2d 622, 626 (8th Cir. 1987). The burden rests 

on H&R Block to demonstrate a likelihood of consumer confusion. See KP 

Permanent Make-Up, Inc., 543 U.S. at 124 (a plaintiff claiming infringement “must 

show likelihood of consumer confusion,” while a defendant claiming a fair use 

defense has no burden to negate confusion); ZW USA, Inc., 889 F.3d at 446 (stating 

the owner of the mark must show “the defendant’s actual practice is likely to produce 

confusion in the minds of consumers about the origin of the goods or services in 

question”). 

Before the grant of a preliminary injunction is warranted, our precedent 

requires H&R Block to “show a probability of confusion, not merely a possibility.” 

Lovely Skin, Inc. v. Ishtar Skin Care Prods., LLC, 745 F.3d 877, 887 (8th Cir. 2014). 

To satisfy the requisite probability standard, “there must be a substantial likelihood 

that the public will be confused.” Vitek Sys., Inc. v. Abbott Laboratories, 675 F.2d 

190, 192 (8th Cir. 1982) (citation omitted).

 
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Analyzing likelihood of confusion is fact-intensive and reasonable minds may 

disagree. “The ultimate inquiry always is whether, considering all of the 

circumstances, a likelihood exists that consumers will be confused about the source 

of the allegedly infringing product.” Hubbard Feeds, Inc. v. Animal Feed 

Supplement, Inc., 182 F.3d 598, 602 (8th Cir. 1999). While actual confusion is not 

required, it is “often considered the best evidence of likelihood of confusion.” 

Safeway Transit LLC v. Discount Party Bus, Inc., 954 F.3d 1171, 1179 (8th Cir. 

2020) (quoting John Allan Co. v. Craig Allen Co., 540 F.3d 1133, 1140 (10th Cir. 

2008)). Moreover, even evidence of several isolated incidents of actual confusion 

occurring initially upon the creation of a potentially confusing mark is insufficient 

to demonstrate a likelihood of confusion. Duluth News-Trib., 84 F.3d at 1098.

As noted above, the district court considered and weighed the six 

nonexclusive factors and found that three factors strongly favor H&R Block: the 

strength of its marks, the similarity of the marks, and competitive proximity. It found 

that one factor, actual consumer confusion, slightly favored H&R Block. Finally, it 

found that the intent to confuse and consumer sophistication factors were neutral. 

After our review of the district court’s factual findings related to the likelihood 

of confusion, we conclude the district court committed clear error in two of its 

SquirtCo factors analysis. First, as discussed in II.A.2, it clearly erred when it found 

that the similarity of the marks strongly favored H&R Block. Second, the district 

court also clearly erred when it found that the actual confusion factor slightly favored 

H&R Block given the totality of the evidence in the record and H&R Block’s 

admission that it had not “identified a single customer who used Cash App thinking 

it was an H&R Block product.” 

After setting aside the clearly erroneous findings on the SquirtCo factors, we 

count only two factors as strongly favoring H&R Block—the strength of its marks 

and the products’ competitive proximity. One factor, the similarity of the marks, 

slightly favors H&R Block. All other SquirtCo factors are neutral.
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While the record supports possible confusion by some consumers, there is a 

paucity of evidence to rise to the level of substantial confusion by an appreciable 

number of ordinary consumers. Thus, it was clear error for the district court to find 

a likelihood of confusion. First, “[a]ctual confusion in the marketplace is often 

considered the best evidence of likelihood of confusion.” Safeway Transit LLC, 954 

F.3d at 1179. Here, the district court clearly erred in finding evidence of actual 

confusion. The record shows several incidents of potential confusion occurring 

shortly after Block, Inc.’s name change. These incidents include social media 

posts—some of which reflect consumer confusion and others that do not—and 

several news articles published within a couple months of Block, Inc.’s name change 

that can be read to reflect confusion about whether the Cash App services are being 

offered by H&R Block. This dubious evidence is insufficient for H&R Block to 

satisfy its burden of showing a substantial likelihood of confusion about whether 

Cash App Taxes is affiliated with H&R Block by an appreciable number of ordinary 

consumers. Second, in the context of this case, we think that the actual confusion 

and similarity factors carry significant weight because an appreciable number of 

ordinary consumers must be likely to be confused. See Select Comfort, 996 F.3d at

933; Gen. Mills, 824 F.2d at 626. Yet here, at most H&R Block has shown that the 

marks are slightly similar, its own marks are strong, and there is competitive 

proximity. Keeping in mind that there must be “a substantial likelihood that the 

public will be confused,” Vitek Sys., 675 F.2d at 192, it was clearly erroneous for 

the district court to conclude there is a likelihood of confusion.

The burden of showing a likelihood of success on the merits is on H&R Block, 

and it has not met its burden to “show a probability of confusion.” See Lovely Skin, 

Inc., 745 F.3d at 887. It was clear error to find a likelihood of confusion from the 

thin evidence here. This error tilts the entire balance in favor of reversal. See

Hubbard Feeds, Inc., 182 F.3d at 601 (quoting Nat’l Credit Union Admin. Bd. v. 

Johnson, 133 F.3d 1097, 1101 (8th Cir. 1998) (stating that a district court abuses its 

discretion when its decision is based on “any clearly erroneous findings of fact or 

any clear error on an issue of law that may have affected the ultimate balancing of 

the factors considered for a preliminary injunction”). 
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B. Irreparable Harm

Without showing a likelihood of confusion, H&R Block is not entitled to a 

rebuttable presumption of irreparable harm. See 15 U.S.C. § 1116(a) (plaintiff 

entitled to a rebuttable presumption of irreparable harm upon a showing of likelihood 

of success on the merits). Regardless of the applicability of the statutory 

presumption, H&R Block has shown, at best, that factual questions exist about 

whether a consumer will likely be confused and nothing more than speculative harm. 

To demonstrate irreparable harm, H&R Block must show harm that “is certain and 

great and of such imminence that there is a clear and present need for equitable 

relief.” Novus Franchising, Inc., 725 F.3d at 895 (quotation omitted). In other 

words, the harm must not only be “more than the mere possibility” of irreparable 

harm, it also “must be more than mere speculation.” Padda v. Becerra, 37 F.4th

1376, 1384 (8th Cir. 2022) (citations omitted). “[F]ailure to demonstrate irreparable 

harm is a sufficient ground to deny a preliminary injunction.” Phyllis Schlafly 

Revocable Trust v. Cori, 924 F.3d 1004, 1009 (8th Cir. 2019) (quoting Gen. Motors 

Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 320 (8th Cir. 2009)). 

The harm H&R Block identifies stems from consumer confusion that 

purportedly risks damaging its brand. Given the paucity of evidence concerning 

consumer confusion, H&R Block’s worry about potential negative publicity and loss 

of intangible assets, such as reputation and goodwill, is speculative and inadequate 

to demonstrate “a clear and present need for equitable relief.” See Padda, 37 F.4th 

at 1384-85 (determining that without more detailed information, movant failed to 

specifically identify the harm he will suffer or how the harm is more than reparable, 

economic damages); see also Calvin Klein Cosmetics Corp., 815 F.2d at 505 

(concluding that because the district court erred in finding success on the merits, its 

findings regarding irreparable harm and the balance of hardships are also insufficient 

to support the grant of a preliminary injunction). Because the record contains 

insufficient evidence demonstrating that H&R Block will suffer irreparable harm 

absent a preliminary injunction, H&R Block is not entitled to injunctive relief. 
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C. Remaining Dataphase Factors 

As to the remaining Dataphase factors, the litigants are million-dollar 

companies. Both parties have invested substantial time and expended millions of 

dollars on advertising and developing their products and services. There is no 

indication that Block, Inc. would be unable to provide adequate compensation if 

found liable for trademark infringement. In contrast, the injunction prohibits Block, 

Inc. from operating Cash App Taxes. The balance of equities does not favor 

injunctive relief. See MPAY Inc. v. Erie Custom Comput. Applications, Inc., 970 

F.3d 1010, 1020 (8th Cir. 2020) (appellant failed to show balance of harm tips in its 

favor when injunction would prevent appellees from using the software that forms 

the basis of their business).

III. CONCLUSION

Our task is to examine “whether the district court abused its discretion in 

assessing whether the balance of equities so favors [the movant] that justice requires 

the court to intervene to preserve the status quo until the merits are determined.” 

Wildhawk Invs., LLC v. Brava I.P., LLC, 27 F.4th 587, 598 (8th Cir. 2022) (cleaned 

up). Because the evidence in the record is inadequate to establish substantial

consumer confusion by an appreciable number of ordinary consumers, nor 

irreparable harm that is concrete and imminent, H&R Block failed to satisfy its 

burden. If there is in fact trademark infringement, H&R Block will have a full 

opportunity to demonstrate that infringement at a trial on the merits. We reverse and 

vacate the preliminary injunction.

5

5

We decline to consider Block, Inc.’s other argument that the preliminary 

injunction violates the First Amendment by restricting commercial speech. See

Anderson v. Rugged Races, LLC, 42 F.4th 955, 962 (8th Cir. 2022) (declining to 

address arguments not presented to the district court). 
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MELLOY, Circuit Judge, Dissenting. 

I respectfully dissent. The district court granted H&R Block a preliminary 

injunction prohibiting Block, Inc. from using “Block” in connection with Cash App 

Taxes. A finding of clear error requires the appellant to clear a high hurdle. Because 

I do not believe the appellant met the burden in this case, I would affirm. It was not 

clear error to find a likelihood of confusion or an abuse of discretion to grant the

limited injunction as applied to tax services. 

A. Likelihood of Success 

The district court wrote a lengthy and detailed opinion analyzing the SquirtCo. 

factors in a well-reasoned opinion. After reviewing all of the SquirtCo. factors the 

district court concluded, “Block, Inc.’s use of ‘Block’ in commerce in the context of 

the relevant market is likely to cause confusion.” I find no clear error in the analysis 

of the individual factors or the weighing of the factors. 

The majority found no clear error in the district court’s conclusion that 

strength of mark and competitive proximity favor H&R Block. 

In my view, strength of mark strongly favors H&R Block. H&R Block has ten 

thousand store fronts, two million small business clients, and a website with over 

fifty million logins. It is one of the most well-known tax service companies in the 

country, serving millions of customers each year. Not only has H&R Block used 

“Block” in connection with tax services for decades, it has also invested billions of 

dollars into the mark. The success of this investment is confirmed by consumer 

surveys which show consumers associate “Block” with H&R Block in the tax space. 

The long-term and wide-spread use shows the strength of H&R Block’s mark. 

Competitive proximity also favors H&R Block. Both H&R Block and Block, 

Inc. service the same population in the tax services market. Both target the 

“underbanked.” Using the name Cash App Taxes does not mean Block, Inc. is not 
-17- 

competing with H&R Block. Cash App Taxes is not a separate entity, therefore 

Block, Inc. is directly competing against H&R Block in this market. Both entities 

use “Block” in the same market to target the same consumers. Additionally, both 

companies offer charitable services under a “Block” umbrella. 

The district court and majority both conclude two factors are neutral, 

consumer sophistication and intent. I agree future development of the record as to 

these two factors is required.

The majority disagreed with the district court as to only two factors: similarity 

of marks and actual confusion. 

I find no error in the district court’s conclusion that the similarity of marks 

factor strongly favors H&R Block. Finding clear error requires finding that 

reasonable minds could not disagree based on the record. The ample evidence 

presented, and the extended litigation, shows that reasonable minds can disagree. 

Both companies use the term “Block” and green square logos in connection with tax 

services. Block, Inc. argues that their “house of brands” model prevents Block, Inc. 

from being associated with the tax services offered by Cash App Taxes. The 

evidence indicates otherwise. 

Block, Inc. publicly connected Cash App Taxes to Block in several ways. 

First, the terms and services for Cash App Taxes, which legally binds the consumer, 

references “Block, Inc.” Second, Block, Inc.’s social media posts and websites 

connect “Block, Inc.” to Cash App Taxes. Finally, when customers complain about 

Cash App Taxes to the Better Business Bureau Block, Inc. responds as “Block, Inc.” 

not Cash App Taxes. 

In addition to the actions taken by Block, Inc., actions by individual 

employees and third parties connect Cash App Taxes to Block. Employees of Cash 

App Taxes publicize that they work for “Cash App at Block, Inc.” The Wall Street 

Journal wrote an article that referred to “Block’s Cash App.” Other media websites 
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linked articles about Cash App Taxes to pages associated with H&R Block. There 

is ample evidence to conclude that both companies use the same word, “Block,” in 

connection with their tax services.

Likewise, I find no error in concluding actual confusion slightly favors H&R 

Block. As discussed above, several companies have used phrases such as “Block’s 

Cash App” or linked articles about Cash App Taxes to H&R Block. Some of the 

connections might have been made by algorithms, but the result is a webpage that is 

easily confusing to the average consumer. Additionally, several people noted on 

social media platforms that Block, Inc.’s new name might be confusing to 

consumers. There is evidence that actual people saw the possibility of confusion. 

By acting quickly to enforce its legal rights, H&R Block got ahead of any potential 

confusion with customers. H&R Block should not be punished for taking swift 

action. Accordingly, the minimal evidence of customer confusion should not be 

used against H&R Block.6

 

Because no factors favor Block, Inc. and several factors strongly favor H&R 

Block, there was no clear error in finding the totality of the factors shows a likelihood 

of confusion. As the majority points out, “no one factor controls, and because the 

inquiry is inherently case-specific, different factors may be entitled to more weight 

in different cases.” Cmty. of Christ Copyright Corp. v. Devon Park Restoration 

Branch of Jesus Christ’s Church, 634 F.3d 1005, 1009 (8th Cir. 2011) (quoting 

Kemp v. Bumble Bee Seafoods, Inc., 398 F.3d 1049, 1053 (8th Cir. 2005)). In a 

case where two companies operating within the same industry, and targeting the 

same customers, use the same mark and a similar logo it is difficult to say it is clear 

6

Presumably there will be significantly more evidence as to this and the other 

facts when the case returns to the district court. As the majority opinion noted, the 

injunction was stayed by our Court. We are now entering the second full tax season 

where Block, Inc. and H&R Block compete. Based on two years of actual tax 

preparation, I anticipate both sides will be able to produce evidence of actual 

consumer confusion or lack thereof. 
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error to find a likelihood of confusion. Reasonable minds may disagree, but it was 

not clear error for the district court to conclude there was a likelihood of confusion. 

B. Irreparable Harm 

Likewise, it was not clear error for the district court to conclude that the threat 

to goodwill was irreparable harm. Even without direct evidence of customer 

complaints or harm to reputation this court has found that it was not clear error to 

conclude that a threat to goodwill was an irreparable harm. United Healthcare Ins. 

Co. v. AdvancePCS, 316 F.3d 737, 742 (8th Cir. 2002). Again, this analysis is very 

fact dependent, and I do not believe the district court clearly erred in its analysis. 

C. Balance of Harms 

Finally, it is not contested that H&R Block has spent a significant amount of 

time and money building a brand around “Block” and that harm to the goodwill of 

“Block” would harm H&R Block’s business. It is also uncontested that an injunction 

would harm Block, Inc. It is not clear error to find that the harm would be greater 

to the entity who has spent decades of time and great sums building a brand, versus 

a company who just recently began using a mark. 

Conclusion

Because I find no clear error in the analysis of individual likelihood-ofconfusion factors or in the overall synthesis of those factors, and because I find no 

abuse of discretion in the balancing of preliminary injunction factors, I would affirm 

the well-reasoned judgment of the district court. 

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