months after they first became aware of Global's illegal rental activities in November 1991." Id. at 9.
Since the time this motion was fully submitted the parties have completed discovery, and this case has been marked ready for trial.
To obtain injunctive relief, the moving party must show (a) irreparable harm, and (b) either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits and the balance of the hardships tips decidedly in favor of the moving party. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979); see, e.g., Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985) (copyright infringement case).
Irreparable harm normally will be presumed in a copyright infringement case if the moving party can show a reasonable likelihood of success on the merits. See Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 54 L. Ed. 2d 759, 98 S. Ct. 730 (1978). In other words, generally, "the plaintiff's burden for obtaining a preliminary injunction in copyright cases collapses to showing likelihood of success on the merits, without a detailed showing of danger of irreparable harm." 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, P 14.06[A], at 14-84 to -85 (1993) (footnotes omitted).
However, as noted above, defendant argues that plaintiffs' motion should be denied because plaintiffs unreasonably delayed in bringing this motion. Even though defendant contends that plaintiffs learned of defendant's allegedly infringing activities over two and one-half years before they commenced this action on May 25, 1993, it appears that the earliest plaintiffs could have been aware of defendant's infringing activities by use of the Deferred Billing Plan was in March 1991 (when that plan was implemented), just over two years prior to this action. Nevertheless, even if the delay in commencing this action is significantly less than defendant contends, plaintiffs do not adequately explain the delay. Though the Court recognizes that some of the delay must have been attributable to plaintiffs' efforts to sufficiently investigate defendant's practices and secure sufficient evidence to commence an action and bring a preliminary injunction motion, the delay presented far exceeds the time reasonably necessary to accomplish that task.
Plaintiffs expend considerable effort in arguing that their delay does not warrant denying their motion for a preliminary injunction because defendant has not shown prejudice from the delay. However, plaintiffs rely on cases addressing the effect of delay on a request for permanent injunctive relief, and apparently ignore cases addressing the effect of delay in applying for preliminary injunctive relief. Contrary to plaintiffs' argument, the period allowed to elapse prior to seeking a preliminary injunction need not rise to the level of laches to bar preliminary injunctive relief. Majorica, S.A. v. R.H. Macy & Co., 762 F.2d 7, 8 (2d Cir. 1985). Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985). As the Second Circuit stated in Majorica, a trademark infringement case:
Lack of diligence, standing alone, is insufficient to support a claim of laches; the party asserting the claim also must establish that it was prejudiced by the delay. Lack of diligence, standing alone, may, however, preclude the granting of preliminary injunctive relief, because it goes primarily to the issue of irreparable harm rather than occasioned prejudice. "Significant delay in applying for injunctive relief in a trademark case tends to neutralize any presumption that infringement alone will cause irreparable harm pending trial, and such delay alone may justify denial of a preliminary injunction for trademark infringement."