UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1487

BIDZIRK, LLC,

Plaintiff - Appellant,

and

DANIEL G. SCHMIDT, III; JILL PATTERSON,

Plaintiffs,

versus

PHILLIP J. SMITH,

Defendant - Appellee.

Appeal from the United States District Court for the District of

South Carolina, at Greenville. Henry M. Herlong, Jr., District

Judge. (6:06-cv-00109-HMH-WM)

Submitted: February 12, 2007 Decided: March 6, 2007

Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kevin Morgan Elwell, Greenville, South Carolina, for Appellant.

Phillip J. Smith, Appellee Pro Se.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

BidZirk, LLC, Daniel G. Schmidt, III, and Jill Patterson

filed a complaint in federal district court alleging Phillip J.

Smith’s articles on his internet web log violated the Federal

Trademark Dilution Act and state law. BidZirk moved for

preliminary injunctive relief pursuant to 15 U.S.C. § 1116(a)

(2000). Adopting the magistrate judge’s recommendation, the

district court denied a preliminary injunction, and BidZirk

appealed.

We review the grant or denial of a preliminary injunction

for abuse of discretion, “recognizing that preliminary injunctions

are extraordinary remedies involving the exercise of very farreaching power to be granted only sparingly and in limited

circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d

335, 339 (4th Cir. 2001). A district court abuses its discretion

when it applies an incorrect preliminary injunction standard, rests

its decision on a clearly erroneous finding of material fact, or

misapprehends the law with respect to underlying issues in

litigation. Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel,

872 F.2d 75, 78 (4th Cir. 1989).

In determining whether a preliminary injunction is

appropriate, we consider four factors: (1) the likelihood of

irreparable harm to the plaintiff if the preliminary injunction is

denied; (2) the likelihood of harm to the defendant if the
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requested relief is granted; (3) the likelihood the plaintiff will

succeed on the merits; and (4) the public interest. Rum Creek Coal

Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991). “[T]he

balance of harm evaluation should precede the determination of the

degree by which the plaintiff must establish the likelihood of

success on his part.” Direx Israel, Ltd. v. Breakthrough Med.

Corp., 952 F.2d 802, 813 (4th Cir. 1991). 

If, after balancing the irreparable harm to the plaintiff

against the irreparable harm to the defendant, the balance tips

“decidedly” in the favor of the plaintiff, a preliminary injunction

would be appropriate if the plaintiff “raised questions going to

the merits so serious, substantial, difficult and doubtful, as to

make them fair ground for litigation and thus for more deliberate

investigation.” Id. at 812-13. If the balance tips away from the

plaintiff toward equivalency, the plaintiff must demonstrate its

entitlement to a preliminary injunction with “a very clear and

strong case,” because “if there is doubt as to the probability of

plaintiff’s ultimate success on the merits, the preliminary

injunction must be denied.” Id. at 813.

 In light of these principles, we find no abuse of

discretion and we affirm the district court’s order denying a

preliminary injunction. We dispense with oral argument because the

facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the

decisional process.

AFFIRMED