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BRAINARD v. CUSTOM CHROME

December 28, 1994

JAY F. BRAINARD, Plaintiff,
v.
CUSTOM CHROME, INC., JOCKEY CYCLE TRAFFIC SUPPLY CO., LTD., SENTRY TRAFFIC SUPPLY CO., LTD., MOUNTAIN CYCLE TRAFFIC SUPPLY CO., LTD., and FRANK LIN, Defendants.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Before this Court is plaintiff's motion pursuant to Fed. R. Civ. P. 65 for a preliminary injunction enjoining and restraining defendants from infringing plaintiff's design patent during the pendency of this action. Plaintiff filed a complaint on June 30, 1994, alleging that defendants have infringed plaintiff's patent for a motorcycle throttle grip by making, using, or selling a certain motorcycle throttle grip during the term of plaintiff's patent. Plaintiff seeks a declaratory judgment, injunction, and damages under 35 U.S.C. §§ 284, 289. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1338.

 In support of his motion for a preliminary injunction, plaintiff has submitted a memorandum of law ("P. Memo"); a reply memorandum of law ("P. R.Memo"); an affidavit of Jay F. Brainard ("Brainard Aff."), with exhibits; an affidavit of Richard J. Miller ("Miller Aft."), with exhibits; and an affidavit of David S. Teske ("Teske Aff."), with exhibits. In opposition to plaintiff's motion, defendant Custom Chrome, Inc. ("Custom Chrome") has submitted a memorandum of law ("D. Memo"); a declaration of Steven D. Dennison ("Dennison Dec."), with exhibits; and a declaration of Harris Zimmerman ("Zimmerman Dec."), with exhibits.

 At oral argument before this Court on December 5, 1994, counsel for both parties agreed that their submissions were sufficient for this Court to decide the matters raised on this motion. After full and careful consideration of the parties' submissions and argument, this Court agrees with that assessment and, for the reasons set forth below, will deny plaintiff's motion for a preliminary injunction.

 FACTS

 Plaintiff Jay Brainard is the president of Jaybrake Enterprises, Inc. ("Jaybrake"), headquartered in Lewiston, New York. (Brainard Aff. P 1.) Jaybrake designs and produces after-market accessories for motorcycles. (Miller Aff. P 4.) On March 25, 1992, plaintiff filed an application (Serial Number 857,593) in the United States Patent and Trademark Office ("PTO") for a design patent for a motorcycle throttle grip. (Brainard Aff. PP 4-5.) United States Design Letters Patent No. D-338,825 ("'825 patent") issued to plaintiff on August 31, 1993. (Brainard Aff. P 6.) Plaintiff describes his motorcycle grip design as:

 
About six to eight rounded circumferentially-spaced longitudinally-extending . . . cushioning strips that extend radially outwardly beyond the outer surface of a tubular cylindrical . . . body so as to create the impression of alternating . . . strips of approximately equal circumferential width, with the cushioning strips extending substantially the entire length of the body between a semi-circular end and an opposite flat end, and a slightly convex rounded distal end cap. *fn1"

 (Brainard Aff. P 8; P. Memo, p. 4.)

 Defendant Custom Chrome sells motorcycle parts and accessories for Harley-Davidson motorcycles through catalogs. (Miller Aff. P 4, exh. A; D. Memo, p. 1.) Plaintiff alleges that a certain motorcycle handgrip ("accused grip") that Custom Chrome sells by catalog infringes his design patent. *fn2" (Miller Aff. P 4, exh. A.) Specifically, he asserts "that the accused grip manufactured by Jockey Cycle Traffic Supply Co., Ltd., Sentry Traffic Supply Co., Ltd., Mountain Cycle Traffic Supply Co., Ltd., and/or Frank Lin and sold in the United States by Custom Chrome, Inc. substantially resembles the design shown in the '825 patent." (Brainard Aff. P 9.)

 DISCUSSION

 Defendant Custom Chrome contends that the accused grip it sells does not infringe plaintiff's patent, and that plaintiff therefore has not met his burden on this motion. Based on the findings of fact and conclusions of law set forth below pursuant to Fed. R. Civ. P. 52, plaintiff has not met his burden, and this Court will deny his motion for a preliminary injunction.

 Preliminary Injunction Standard

 The grant or denial of a preliminary injunction is within the discretionary authority of the district court. Smith International, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1578 (Fed. Cir. 1983). Injunctions may be granted under principles of equity to "prevent the violation of any rights secured by patent, on such terms as the Court deems reasonable." 35 U.S.C. § 283. The law of the Federal Circuit, rather than ...


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