Carillon Importer, Ltd. v. Frank Pesce International Group Ltd.

United States Court of Appeals,

Eleventh Circuit.

Nos. 96-4260, 96-4393.

CARILLON IMPORTERS, LTD., Plaintiff-Intervenor-Defendant-
Appellee,

v.

FRANK PESCE INTERNATIONAL GROUP LIMITED, Frank Pesce Group, Inc.,
Frank Pesce, Lion Fine Wines, Inc., Defendants-Appellants,

Michael ROUX, Intervenor-Defendant,

v.

MOSCOW DISTILLERY CRISTALL, Intervenor-Plaintiff.

CARILLON IMPORTERS, LTD., Plaintiff-Intervenor-Defendant,
Counter-Defendant-Appellee,

v.

FRANK PESCE INTERNATIONAL GROUP LIMITED, Frank Pesce Group, Inc.,
Frank Pesce, Lion Fine Wines, Inc., Defendants-Counter-Claimants-
Appellants,

Michael ROUX, Intervenor-Defendant,

v.

MOSCOW DISTILLERY CRISTALL, Intervenor-Plaintiff.

May 15, 1997.

Appeals from the United States District Court for the Southern
District of Florida. (No. 95-1795-CV-DTKH), Daniel T.K. Hurley,
Judge.

Before COX and BARKETT, Circuit Judges, and SMITH*, Senior Circuit
Judge.

PER CURIAM:

This is a consolidated appeal from the district court's order

preliminarily enjoining appellants from continued trade dress

*
Honorable Edward S. Smith, Senior U.S. Circuit Judge for
the Federal Circuit, sitting by designation.
infringement and the district court's order fixing the amount of

the injunction bond. Carillon Importers, Ltd. v. Frank Pesce

Group, Inc., 913 F.Supp. 1559 (S.D.Fla.1996) (order granting

preliminary injunction). We affirm.

Since 1994, Carillon Importers, Ltd. ("Carillon"), has been

the exclusive importer and distributor of Stolichnaya Cristall

Vodka into the United States. In 1995, the Frank Pesce Group, Inc.

and its related companies ("Pesce Group"), began importing and

distributing another line of vodka into the United States bearing

the name Cristall Moscow Signature Series. In conjunction with an

action brought by Carillon alleging, inter alia, trade dress
1
infringement in violation of Section 43(a) of the Lanham Act,

Carillon moved for a preliminary injunction to bar the Pesce Group

from further alleged infringement of the trade dress at issue.2

The Pesce Group contends that the district court failed to make the

necessary findings of fact and conclusions of law required in order

to grant a preliminary injunction. In addition, the Pesce Group

contends that the district court abused its discretion in setting

the amount of the preliminary injunction bond.

The grant or denial of a preliminary injunction is a decision

within the discretion of the district court. See United States v.

Lambert, 695 F.2d 536, 539 (11th Cir.1983). For preliminary

1
15 U.S.C. 1125(a).
2
"Trade dress" generally refers to the complete image of a
product, such as size, color or combination of colors, shape,
texture, graphics and sales techniques. See Epic Metals Corp. v.
Souliere, 99 F.3d 1034, 1037-38 (11th Cir.1996). The trade dress
at issue in this controversy is the complete image of Stolichnaya
Cristall brand, including bottle shape and color, label design,
label graphics, and overall color scheme.
injunctive relief to be warranted, the district court must find

that the movant has satisfied four prerequisites: (1) a

substantial likelihood of success on the merits; (2) irreparable

injury will be suffered unless the injunction issues; (3) the

threatened injury to the movant is greater than any damage the

proposed injunction may cause the opposing party; and (4) the

injunction, if issued, will not disserve the public interest. See

Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th

Cir.1993).

The review of a district court's decision to grant or deny a

preliminary injunction is extremely narrow in scope. See Revette

v. International Ass'n of Bridge, Structural and Ornamental Iron

Workers, 740 F.2d 892, 893 (11th Cir.1984). This court will

reverse the district court's decision only if there is a clear

abuse of discretion. See Id. Furthermore, " "[n]o attention is

paid to the merits of the controversy beyond that necessary to

determine the presence or absence of an abuse of discretion.' "

Cafe 207, Inc., 989 F.2d at 1137 (quoting Di Giorgio v. Causey, 488

F.2d 527, 529 (5th Cir.1973)).3
The district court found that Carillon met its burden of

establishing the elements necessary for a preliminary injunction to

be granted. Our review of the record leads us to conclude that the

court did not abuse its discretion in making this decision.

Following the district court's order granting the preliminary

3
Decisions of the former Fifth Circuit rendered before
October 1, 1981 are binding precedent in this circuit. See
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981)
(en banc).
injunction, Carillon moved for an order to post bond pursuant to

Rule 65(c) and 65.1, Federal Rules of Civil Procedure. The

district court ordered Carillon to post bond in the amount of

$50,000.

The amount of an injunction bond is within the sound

discretion of the district court. See Corrigan Dispatch Co. v.

Casa Guzman, 569 F.2d 300, 303 (5th Cir.1978). The Pesce Group

contends, on appeal, that the amount of the injunction bond is

insufficient. We deem it significant that no objection was made in

the district court as to the sufficiency of the bond. We find no

abuse of discretion.

AFFIRMED.4

4
Appellants' motion for an order striking the October 9,
1996 letter of counsel for Appellee from the record is granted.