Big's motion for preliminary injunction starts with the allegations contained in Big's counterclaim, then expands upon them. Thereafter, it deals with several legal questions, the most important of which is the likelihood of confusion. As Big notes, in determining whether a likelihood of confusion exists, the Ninth Circuit Court of Appeals (the Court of Appeals which governs District Courts in Washington) relies on the Sleekcraft test, which we will look at shortly.

Big emphasizes Small's website at, Big's first use (for the newsletter) in 1997, Big's first discovery of in July, 2007, the purported registration of in March, 2007, the use of keywords on, the claim that both parties were trying to sell to the same customers (who are allegedly unsophisticated) and, generally speaking, relies heavily upon a postulated bad motive of Small in the use of and keywords.

Big's motion and the counterclaim are accompanied by a request that the court require fast-track discovery ("discovery" means measures taken by one party to require the other party to disclose virtually every aspect of the other parties case, including interrogatories (questions asked which must be answered), requests for production (requiring a party to produce copies of all documents pertinent to the case), requests for admission (requiring a party to admit or deny certain key matters, upon penalty of having to pay the other parties costs to prove those key matters if the key matters are denied), and depositions (requiring a party to appear and be cross-examined, in effect, under oath).

We will deal with this discovery next. Home       TM Overview       TM Case Index

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