2d Circuit: no irreparable injury where website tracks clicks to buy

Carson Optical, Inc.
v. Alista Corp., No. 19-2509, — Fed.Appx. —-, 2020 WL 1683460 (Mem) (2d
Cir. Apr. 7, 2020)
Interesting—the Second
Circuit approves the district
court’s reasoning
that online sales can be tracked perfectly, and thus financial
harm from false advertising is not irreparable. Carson sued to enjoin defendants
from advertising magnifying mirrors on Carson Optical’s product pages on
Amazon.com. The district court relied on a declaration that “Amazon’s tracking
of clicks on Defendants-Appellees’ advertisements on Carson Optical’s Amazon
webpage would provide a basis to estimate Carson Optical’s losses from the
purportedly false advertisements.”  This
was enough to show that the general proposition that “[i]t is virtually
impossible to prove that so much of one’s sales will be lost or that one’s
goodwill will be damaged as a direct result of a competitor’s advertisement.”
Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 316 (2d Cir. 1982), was
in applicable. Carson “failed to show why the data referred to by the
declaration would not provide a reasonable starting point for a suitable
damages analysis.”  [Query whether under
the proposed reversal of eBay to restore a presumption of irreparable
injury in trademark cases, this declaration could have rebutted such a
presumption.]
The court of appeals
further noted that the challenged ads didn’t explicitly refer to Carson’s
mirrors, or compare defendants’ mirrors to Carson’s; they were just allegedly
false. The district court thus didn’t clearly err in finding no irreparable
injury.

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