OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




    CHURCH OF SCIENTOLOGY INTERNATIONAL, a corporation;  Religious Technology
 Center, a corporation;  and Scientology Missions International, a corporation,
                                   Plaintiffs,
                                       v.
 The ELMIRA MISSION OF the CHURCH OF SCIENTOLOGY, a corporation, a/k/a Church of
    Scientology, Mission of Elmira, a/k/a Dianetics Center, a/k/a Scientology
 Elmira, a/k/a Center for Creative Learning;  Harry Palmer, an individual;  and
                  Avra Honey-Smith, an individual, Defendants.
                                No. CIV-85-412T.
                          United States District Court,
                                 W.D. New York.
                                  Aug. 1, 1985.
  International religious organization, which had brought trademark infringement
 suit against local religious organization, moved for preliminary injunction to
 restrain local organization from further infringement during pendency of suit.
 The District Court, Telesca, J., held that international organization failed to
 show irreparable injury necessary for issuance of preliminary injunction.
  Motion denied.

 [1] COPYRIGHTS AND INTELLECTUAL PROPERTY
 When plaintiff seeks preliminary injunction for violations of trademark or
 copyright law, allegations of irreparable injury need not be very detailed.

 [1] TRADE REGULATION
 When plaintiff seeks preliminary injunction for violations of trademark or
 copyright law, allegations of irreparable injury need not be very detailed.

 [2] TRADE REGULATION
 Plaintiff who demonstrates likelihood of success in trademark infringement
 action will almost inevitably be entitled to presumption of possible
 irreparable injury adequate to sustain granting of preliminary injunction, but
 that inference must always remain open to rebuttal.  Lanham Trade-
 Mark Act, s 32(1), 15 U.S.C.A. s 1114(1).

 [3] EVIDENCE
 District court could take judicial notice of distances separating three cities
 in New York based on data compiled and released by local "Auto Club."
 Fed.Rules Evid.Rule 201, 28 U.S.C.A.

 [4] TRADE REGULATION
 Trademark violation does not pose any threat of irreparable injury, for
 purposes of determining whether to issue preliminary injunction, merely because
 consumers are confused into believing that they are dealing with authorized or
 licensed distributor.  Lanham Trade-Mark Act, s 32(1), 15 U.S.C.A. s
 1114(1).

 [5] TRADE REGULATION
 International religious organization failed to establish "irreparable injury"
 necessary for issuance of injunction against local organization that was
 allegedly using international organization's trade name and marks without
 authorization, where local and international organization were not in direct
 economic competition, and where there was no showing that courses and services
 offered by local organization were inferior to or differed from those offered
 by authorized missions and churches.  Lanham Trade-Mark Act, s 32(1), 15
 U.S.C.A. s 1114(1).
  *501 Harris, Beach, Wilcox, Rubin & Levey, Rochester, N.Y. (Kevin J.
 Arquit, Rochester, N.Y., of counsel), for plaintiffs.
  Weidman & Jordan, Rochester, N.Y. (Mark S. Nunn, Rochester, N.Y., of counsel),
 for defendants.

  TELESCA, District Judge.
  For over a decade, defendant Harry Palmer has been the operator and President
 of the Elmira Mission of the Church of Scientology.  The Elmira Mission
 operated for many years with the blessings of the highest church officials
 until 1984, when the Elmira Chapter ceased paying its regular tithes to the
 mother church in California, Scientology Missions International.  Within a few
 months, Mr. Palmer was notified by the Religious Technology Center (which
 purports to be the owner and protector of the trademarks associated with the
 religion of Scientology) that he had violated the obligations of his license
 agreement.  After the parties failed in attempts at private dispute resolution,
 including arbitration, the Church of Scientology International brought the
 matter to this Court.
  According to the complaint, the Elmira Mission of the Church of Scientology is
 presently using the "Scientology" tradename and marks without the authorization
 of the church organization, and is therefore infringing plaintiffs' rights
 under the Federal Trademark Act of 1946. [FN1]  Consequently, plaintiffs now
 move this Court for a preliminary injunction to restrain defendants from
 further infringement during the pendency of this lawsuit.  For the reasons set
 forth below, that request must be denied.

      FN1. Plaintiffs also assert additional claims arising under New York State
     law, but have expressly based their application for a preliminary
     injunction solely on their claims for relief under Federal Trademark law.

                                     DISCUSSION
                                         I.
  "Perhaps the single most important prerequisite for the issuance of a
 preliminary injunction is a demonstration that if it is not granted the
 applicant is likely to suffer irreparable harm before a decision on the merits
 can be rendered."  Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d
 Cir.1985) (quoting 11 Wright and Miller, Federal Practice and Procedure,
 Section 2948, at 431 (1973)).  Plaintiffs have made no serious attempt to
 explain with evidentiary detail how that requirement might be satisfied under
 the particular facts of this case.  Rather, plaintiffs have placed their
 primary reliance on the argument that the elements of "irreparable harm" are
 established in a trademark action simply by a showing of *502 the likelihood
 of plaintiff's success on the merits.  Plaintiffs apparently take the position
 that they must be entitled to a preliminary injunction if they succeed in
 demonstrating a likelihood of success on their trademark claim, since such a
 showing would entail, as a matter of law, a conclusive and irrebuttable
 presumption of possible irreparable injury.  Although the defendants have never
 contested that position, I draw a contrary conclusion from my reading of the
 applicable case law.
  [1] When a plaintiff seeks a preliminary injunction for violations of
 trademark or copyright law, it is now well settled in this Circuit that
 "allegations of irreparable injury need not be very detailed", because normally
 such injury can be presumed from infringement.  Wainwright Securities, Inc.
 v. Wall Street Transcript Corporation, 558 F.2d 91, 94 (2d
 Cir.1977) (copyright), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d
 759 (1978).  Due to the unique role played by a trademark in commerce, and the
 difficulties in measuring the value of the goodwill that it represents, there
 is a virtually insurmountable presumption that irreparable harm is at least
 possible (if not likely) where infringement is not enjoined.  Consequently,
 when a plaintiff establishes a likelihood of success in a trademark
 infringement action, by demonstrating that defendant's use of a mark is likely
 to cause confusion or mistake, the courts in this Circuit will almost routinely
 find the possibility of irreparable harm and grant preliminary injunctive
 relief.
  In P. Daussa Corp. v. Sutton Cosmetics (P.R.) Inc., 462 F.2d 134, 136 (2d
 Cir.1972), the Court of Appeals announced that, "in trademark cases, confusing
 similarity between marks is sufficient injury to warrant the issuance of a
 preliminary injunction".  Reasoning that "an injunction will issue" when an
 infringing mark is likely to cause confusion, the Second Circuit held that the
 District Court Judge below had abused her discretion in denying a preliminary
 injunction on the ground that the plaintiff had failed to show the necessary
 "irreparable injury".  Id.  Accord, Consumers Union of United States,
 Inc. v. General Signal Corp., 724 F.2d 1044, 1052 (2d Cir.1983) ("A preliminary
 injunction will issue where an advertisement creates a reasonable likelihood of
 confusion by consumers regarding the origin or sponsorship of the product"),
 cert. denied, 469 U.S. 823, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984);  Coca-
 Cola Company v. Tropicana Products, Inc., 690 F.2d 312, 317 (2d
 Cir.1982) (Holding that statistical tests provided "sufficient evidence of a
 risk of irreparable harm because they demonstrate that a significant number of
 consumers would be likely to be misled");  Matter of Vuitton et Fils S.A.,
 606 F.2d 1, 4 (2d Cir.1979) ("In a trademark infringement case such as this, a
 substantial likelihood of confusion constitutes, in and of itself, irreparable
 injury sufficient to satisfy the requirements of Rule 65(b)(1)");
 American Home Products Corporation v. Johnson Chemical Company, Inc., 589
 F.2d 103, 106 (2d Cir.1978).
  In reliance on these and similar pronouncements, many District Courts in this
 Circuit have held that the requisite showing of possible irreparable injury
 follows as a matter of course where there is a likelihood of consumer
 confusion.  Tavaro S.A. v. Jolson, 591 F.Supp. 846, 853-54 (S.D.N.Y.1984);
 Camp Beverly Hills, Inc. v. Camp Central Park, Inc., 217 U.S.P.Q. 783, 785
 (S.D.N.Y.1982);  Cuisinarts, Inc. v. Robot-Coupe International Corp., 509
 F.Supp. 1036, 1044-45 (S.D.N.Y.1981);  Lacoste Alligator S.A. v. F.
 Saltstein, Inc., 216 U.S.P.Q. 985 (S.D.N.Y.1981).
  In a pair of recent trademark decisions, however, the Second Circuit Court of
 Appeals has now made it clear that it will demand a slightly more
 discriminating analysis of the requirements for a preliminary injunction.
 See Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir.1985) and Bell &
 Howell:  Mamiya Company v. Masel Supply Company Corp., 719 F.2d 42 (2d
 Cir.1983).  In both cases, the District Courts below had found that the
 plaintiffs had satisfied their burden of demonstrating a likelihood of
 confusion.  Consequently, in *503 keeping with what had become the customary
 practice within this Circuit, both District Courts granted preliminary
 injunctions against continued infringement without any extended discussion or
 explicit findings with respect to irreparable harm.  In both cases, however,
 the Court of Appeals vacated the preliminary injunction as an abuse of
 discretion, on the grounds that the District Court had failed to adequately
 consider whether there was a sufficient factual foundation for any presumption
 of possible irreparable harm.  Without deciding whether the plaintiffs were
 likely to prevail on the question of trademark infringement, the Second Circuit
 decided in both cases that the type of "confusion" found by the District Court
 did not support an inference of possible irreparable injury. [FN2]

      FN2. Although the Second Circuit's decisions in Bell & Howell and
     Citibank represent a fairly clear departure from prior case law in this
     Circuit, the issue apparently remains somewhat unsettled.  In its most
     recent pronouncement on this subject, in a decision reached subsequent to
     oral argument in the instant case, the Second Circuit Court of Appeals
     stated that, "[i]n a trademark case, irreparable injury will be found"
     where the plaintiff demonstrates a likelihood of success on the issue of
     potential consumer confusion.  Joseph Scott Company v. Scott Swimming
     Pools, Inc., 764 F.2d 62, 66 (2d Cir.1985).  Accordingly, the Court of
     Appeals upheld the District Court's finding of possible irreparable harm
     (and the issuance of a preliminary injunction) simply on the grounds that
     confusion seemed likely, without any further discussion as to how that
     confusion might lead to irreparable injury.  Id., at 67.
     This aspect of the Scott decision is not easily reconciled with the
     other recent decisions by the Second Circuit on this same question,
     although it is consistent with the substantial body of prior case law.  The
     resolution of this tension requires--and surely deserves--further
     clarification from the Court of Appeals for this Circuit.

  Accordingly, although the inference of possible irreparable harm is nearly
 inexorable when a likelihood of confusion is established, that presumption may
 be rebutted.  Citibank, supra, 756 F.2d at 276;  Dow Jones and Company,
 Inc. v. Board of Trade of the City of Chicago, 546 F.Supp. 113, 117
 (S.D.N.Y.1982) (copyright).  As Chief Judge Henry J. Friendly observed, in
 defining the standard for preliminary injunctive relief against trademark
 infringement:  "Where there is, then, such high probability of confusion,
 injury irreparable in the sense that it may not be fully compensable in damages
 almost inevitably follows."  Omega Importing Corp. v. Petri-Kine Camera
 Company, 451 F.2d 1190, 1195 (2d Cir.1971) (emphasis added).  This conclusion
 is compelled by the fundamental principles of equity jurisprudence, since a
 rigid and irrebuttable presumption of irreparable harm would violate the well-
 established maxim that "equitable relief must, by its very nature, be tailored
 to the facts of a particular dispute".  Joseph Scott Company v. Scott
 Swimming Pools, Inc., 764 F.2d 62, 63 (2d Cir.1985).  The Second Circuit has
 repeatedly observed that suits demanding injunctive relief against trademark
 infringement require a "comprehensive analysis of all the relevant facts and
 circumstances", Vitarroz v. Borden, Inc., 644 F.2d 960, 968 (2d Cir.1981),
 since "each trademark infringement case presents its own unique set of
 facts".  Thompsom Medical Co., Inc. v. Pfizer, Inc., 753 F.2d 208, 214 (2d
 Cir.1985).
  [2] For the foregoing reasons, I hold that a plaintiff who demonstrates a
 likelihood of success in a trademark infringement action will "almost
 inevitably" be entitled to a presumption of possible irreparable injury
 adequate to sustain the granting of a preliminary injunction, but that
 inference must always remain open to rebuttal.  Consequently, before granting a
 preliminary injunction against trademark infringement, a Federal Judge must
 first be satisfied that the reasoning traditionally underlying the ordinary
 presumption of "irreparable harm" is consistent with the unique facts and
 circumstances of the particular case.  This duty exists even where, as here,
 the party opposing the injunction has made no serious attempt to explain why
 that ordinary presumption might be inapplicable. [FN3]  Accordingly, I now turn
 to *504 the question of whether there is any realistic possibility that the
 infringing activities alleged in this case, if not enjoined during the pendency
 of this lawsuit, might cause harm which is "irreparable" in the sense that it
 cannot be fully compensated by legal remedies.

      FN3. In their opposition to this motion, defendants have placed primary
     reliance on their arguments as to plaintiffs' likelihood of success on the
     merits.
     With respect to the possibility of irreparable harm, defendants' primary
     contention has been simply that plaintiffs have failed to meet their burden
     of proof, even though defendants have never disputed plaintiffs' position
     that such a possibility can normally be inferred from the likelihood of
     success on the merits.  Beyond that, defendants' only argument as to
     irreparable injury has been their assertion, without the citation of any
     legal authority, that the Church of Scientology is too large to be injured
     economically, and too notorious to suffer any further damage to the
     commercial value of its good will and reputation.
     Fortunately for the defendants, my disposition of the issues raised in this
     opinion renders it unnecessary for me to rule on any of those arguments.

                                         II.
  To prevail on their claim for federal trademark infringement, plaintiffs will
 be required to prove that the defendants' business activities are "likely to
 cause confusion, or to cause mistake, or to deceive".  15 U.S.C. Section
 1114(1).  In trademark cases where the plaintiff appears likely to prevail on
 the merits, the courts of this Circuit will normally presume that such
 "confusion", if not enjoined, will be likely to cause irreparable economic
 injury.  Generally speaking, that possibility of irreparable harm may be
 created in two different ways:  by the defendant's exploitation of protected
 trademarks for its own advantage, or by the defendant's corruption or dilution
 of the value of the goodwill and reputation associated with that trademark.
 Both of those possibilities must now be considered individually in the context
 of this particular factual situation.
                                       A.
  The most common economic injury of trademark infringement occurs when the
 infringer exploits the value of its competitor's trademark in an effort "to
 divert business by misinforming the consumer".  Sutton Cosmetics v. Lander
 Company, 455 F.2d 285, 288 (2d Cir.1972).  The result for the trademark owner
 may be a direct loss of sales, since many consumers are deceived or confused
 into associating the infringer's product or service with the trademark.
 Although the injured trademark owner would be entitled to recover the profits
 on the infringing items, the lost profits may not be fully compensable in
 monetary damages, since it is "notoriously difficult" to prove the loss of
 sales due to infringement.  Omega Importing Corp., supra, 451 F.2d at 1195.
 Consequently, the ordinary presumption of irreparable harm is valid where a
 competitor's activities are likely to "mislead consumers and, as a consequence,
 cause them to shift their purchases from plaintiff's product to defendant's".
 Coca-Cola Company, supra, 690 F.2d at 317.  Accord, Wainwright
 Securities, supra, 558 F.2d at 94 (copyright).
  [3] In the present case, there appears to be no likelihood that defendants'
 allegedly infringing activities would directly divert any business from the
 plaintiffs, since there is no evidence that the parties are in direct economic
 competition.  The plaintiffs have never denied or contradicted the sworn
 deposition testimony of defendant Harry Palmer that the Elmira Mission of the
 Church of Scientology is the only Scientology mission in that city, and that
 "[t]here is no other Scientology organization in Elmira to compete with".
 (Palmer deposition at 38.)  Mr. Palmer also testified, and plaintiffs' counsel
 conceded at oral argument, that the Elmira Mission is the only Church of
 Scientology within a radius of almost 150 miles of that town. [FN4]

      FN4. Mr. Palmer testified that the Elmira Mission is the only Scientology
     Center between Buffalo and New York City.  According to data compiled and
     released by the Auto Club of Elmira, that city is a drive of 144 miles from
     Buffalo, and 240 miles from New York City.  These facts are a proper matter
     for judicial notice.  Federal Rules of Evidence 201.

  All of the evidence presented to this Court indicates that the impact of the
 Elmira *505 Mission's activities is entirely confined to an area where the
 plaintiffs have had no competing business interests at all.  These factors
 suggest that any diversion of plaintiffs' sales by defendants' competition will
 be minimal at best, easily calculated, and readily compensated by monetary
 damages.  I therefore must conclude that there is no realistic possibility that
 the Elmira Mission might irreparably injure the Church of Scientology by
 directly reducing the demand for plaintiffs' services.
  This conclusion is compelled by the decision of the Second Circuit Court of
 Appeals in Sutton Cosmetics, supra, 455 F.2d at 286, in which the court
 upheld a preliminary injunction against apparent trademark infringement,
 "[w]ith the single modification of limiting the geographical scope of the
 injunction to the areas in which [the plaintiff] has sold".  The court reasoned
 that:
   A preliminary injunction under Section 43(a) of the Lanham Act will issue
 only on a showing of a clear likelihood of success on the merits and
 irreparable injury, and [plaintiff] cannot be irreparably injured by
 [defendant's] sales in markets in which [plaintiff] does not itself sell.
 Accordingly, we hold that the order must be modified to encompass only [those
 geographical] areas in which the district court finds that [plaintiff] was
 making sales at the time of the suit.
  Id., at 288-289 (footnote and citation omitted). [FN5]  Applying that
 standard to the instant case, the Church of Scientology's request for a
 preliminary injunction must be denied altogether.

      FN5. It is noteworthy that, in this respect, the Sutton decision is
     also inconsistent with the plaintiffs' argument (see Part I of this
     decision) that a showing of plaintiffs' likelihood of success in a
     trademark action necessarily entails the possibility of irreparable harm
     and the propriety of preliminary injunctive relief.

                                         B.
  Even where the parties to a trademark action are not direct economic
 competitors, irreparable injury is often found where the infringer's activities
 threaten to injure the economic value of the goodwill and reputation associated
 with the trademark.  If consumers are confused into "mistak[ing] defendants'
 inferior goods for those of plaintiffs", the resulting loss of goodwill may not
 be easily translated into money damages.  LaCoste Alligator, supra, 216
 U.S.P.Q. at 989.  Consequently, "if an infringer's product is of poor quality,
 or simply not worth the price, a more lasting but not readily measurable injury
 may be inflicted on the plaintiff's reputation in the market".  Omega
 Importing Corp., supra, 451 F.2d at 1195.  Finally, infringers may also
 undermine the value of a trademark by diluting its distinctiveness, and the
 resulting confusion "may cause purchasers to refrain from buying either product
 and to turn to those of other competitors".  Id.  Once again, however, the
 unusual and undisputed circumstances of this case apparently rule out any
 possibility that the Elmira Mission might irreparably injure the Church of
 Scientology in any of these ways.
  First of all, there is no possibility that the Elmira Mission might confuse or
 deceive anyone into a "mistaken" impression that the Church of Scientology
 International has authorized individual churches and missions to deliver
 Scientology services and materials on a local basis.  On the contrary,
 plaintiffs concede that they have licensed 33 churches and over 80 missions of
 Scientology in the United States alone, and each uses the term "Church of
 Scientology" as a part of its name.  (Affidavit of Warren McShane para. 5).
  Furthermore, plaintiffs have never even alleged, much less offered any
 evidence, that the courses and services offered by the Elmira Mission are in
 any way inferior to, or even different from, those being provided by authorized
 missions and churches. [FN6]  Indeed, all of the available evidence
 *506 points to a contrary conclusion.  Plaintiffs concede that the Elmira
 Mission was an authorized mission of the Church of Scientology "for many years
 and until at least 1982", [FN7] at which time the Elmira Mission was granted by
 Scientology Missions International a written license to use the assorted
 trademarks owned by the Church. [FN8]  Plaintiffs further concede that the
 Elmira Mission was authorized and licensed to use the trademarks and service
 marks of the religion, including the name "Scientology", "until relatively
 recently". [FN9]  Yet, despite these admissions, the plaintiffs have never
 denied or drawn into serious question the testimony of Harry Palmer that the
 Elmira Mission has been providing the same Scientology training and courses for
 more than a decade. [FN10]  Plaintiffs have offered neither allegations nor
 evidence to dispute Palmer's testimony that the Elmira Mission is still
 offering the same services it provided during the decade when it operated with
 the blessings and authorization of top Church officials.  Indeed, when asked by
 this Court whether the defendants are presently teaching Scientology in
 accordance with the established tenets of the religion, plaintiffs' counsel
 replied, "We do not know what they are teaching."  (Tr. oral arg. 11).

      FN6. I must therefore conclude, as the Court of Appeals did in Bell &
     Howell, supra, 719 F.2d at 46, that "there would appear to be ... no
     significant likelihood of damage to [the plaintiff's] reputation" since
     thus far there has been no evidence that the courses and instruction
     offered by the Elmira Mission are inferior to those sold by the Church of
     Scientology.

      FN7. Plaintiffs' Memorandum dated May 2, 1985, at 4.

      FN8. Affidavit of Warren McShane, para. 11.

      FN9. Plaintiffs' notice of motion and motion for preliminary injunction,
     dated May 2, 1985, para. 7.

      FN10. Palmer deposition, at 25.  In fact, far from questioning Palmer's
     assertion that he has been offering the same courses for 12 years,
     plaintiffs have indicated a willingness to adopt that statement as an
     admission against defendants' interest on the issue of infringement.  See
     the affidavit of Kevin J. Arquit, sworn to May 29, 1985, at p. 4.

  In fact, however, plaintiffs have a rather accurate idea of what the
 defendants are teaching at the Elmira Mission of the Church of Scientology.
 Along with this motion for a preliminary injunction, plaintiffs filed on the
 same day the affidavit of Celeste DeFiore, a student at Elmira College who
 visited the Elmira Mission on a number of occasions beginning in late 1984,
 months after the defendants had allegedly repudiated their license agreement.
 Her affidavit contains a detailed narration of what she was shown, sold, and
 taught at the Mission, and includes a number of exhibits of pamphlets and
 brochures that she was sold or given by the defendants.  Those pamphlets
 purport to quote heavily from, and appear to promote the sale of, books and
 materials marketed by the Church of Scientology.  In light of the considerable
 detail provided to the plaintiffs by this affidavit about the "Scientology"
 courses and services offered at the Elmira Mission, it is extremely significant
 that plaintiffs have never alleged that those courses or programs deviate in
 any way from the true teachings of the Church, or from the courses taught by
 the Elmira Mission during the 10 year period when it enjoyed the favor of the
 Mother Church.
  For the foregoing reasons, I conclude that there is no realistic possibility
 that any consumer might be "confused" or "deceived" into believing that the
 form and the substance of the courses offered by the Elmira Mission have met
 the approval of the Church of Scientology.  All of the available evidence shows
 that such an impression would not be mistaken, since the defendants' practices,
 until very recently, enjoyed the authorization of the Church for many years.
 The only respect in which the Elmira Mission is now allegedly in breach of its
 license agreement, and the only reason offered by the plaintiffs for their
 sudden refusal to continue sponsoring that Mission, is the fact that the
 defendants have not paid their tithes to the plaintiffs since July, 1984.
 [FN11]  (Affidavit of Gerald *507 Laws, para. 3.)  Consequently, if the
 Elmira Mission is allowed to continue its allegedly infringing use of the
 "Scientology" name and trademarks during the pendency of this lawsuit, some
 consumers might be "deceived" or "confused" at most into believing that the
 Mission has paid up all of its debts to the Church headquarters in California.
 That sort of "confusion" may well be actionable as a trademark violation, but
 it obviously poses absolutely no danger of irreparable harm to the goodwill and
 reputation enjoyed by the plaintiffs' trademarks.

      FN11. Of course, that aspect of this case (like the fact, discussed in
     part II.A. of this decision, that the parties are not directly competing
     in the same areas) will not necessarily preclude the plaintiffs from
     ultimately prevailing on the merits of their federal trademark claims.
     Nevertheless, for the reasons stated in this opinion, those factors rule
     out any serious possibility that plaintiffs might be irreparably harmed by
     the denial of a preliminary injunction at this point.

  [4] In this respect, the present case is quite similar to the factual
 pattern involved in Bell & Howell:  Mamiya Company v. Masel Supply Company,
 548 F.Supp. 1063 (E.D.N.Y.1982), reversed, 719 F.2d 42 (2d Cir.1983).  The
 District Court in that case found a "substantial likelihood" that the public
 might be led to confuse an unauthorized importer of Japanese cameras with the
 American company which actually owned the legitimate and exclusive rights to
 distribute those cameras in this country.  Id., 548 F.Supp. at 1079.
 Without reaching the merits or questioning that finding by the District Court,
 the Second Circuit Court of Appeals concluded that irreparable injury had not
 been demonstrated, since the plaintiff had not shown that the sale of the
 camera by an allegedly unauthorized distributor was "likely to cause any
 consumer to be misled about the product he or she purchases".  Id., 719 F.2d
 at 46 (emphasis added).  In so doing, the Court of Appeals implicitly
 concluded (as I hold in this case) that a trademark violation does not pose any
 threat of irreparable injury merely because consumers are "confused" into
 believing that they are dealing with an authorized or licensed distributor.
  [5] In summary, although the facts alleged by the plaintiffs in this case
 may well satisfy the legal elements for a case of trademark infringement, the
 economic character of this case bears little resemblance to that of the
 traditional trademark infringement situation.  From the perspective of
 potential economic consequences, the Elmira Mission's alleged "infringement" is
 actually much closer to the case of a bookstore which orders and retails
 authentic "Scientology" books without paying the publisher for the books.
 Nothing could be further from irreparable injury.
                                   CONCLUSION
  For the reasons set forth above, I conclude that the version of the facts
 alleged by plaintiffs in this case, even if true, fails to create any
 possibility that plaintiffs might be irreparably injured if the Elmira Mission
 is not enjoined from its allegedly infringing use of the "Scientology"
 trademarks during the pendency of this lawsuit.  For that reason, and for the
 reasons outlined in this Court's oral decision at the argument of this motion
 on June 5, 1985, the plaintiffs' motion for preliminary injunctive relief must
 be denied.  It is therefore unnecessary for me at this time to reach the merits
 of plaintiffs' trademark claims, or to decide any of the arguments advanced by
 the defendants in opposition to this motion.
  ALL OF THE ABOVE IS SO ORDERED.

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