STUHLVARG INT'L SALES V JOHN D. BRUSH, & CO.

_________________________________________________________________

*Judge Hug was drawn to replace Judge Canby. He has read the briefs,

reviewed the record and listened to the tape of oral argument held on

November 16, 2000.

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COUNSEL

William Roberts (argued), Richard P. McElroy, Timothy D.

Pecsenye, Rachel L. Brendzel, Blank, Rome, Comisky &

McCauley, LLP, Philadelphia; Dennis G. Martin, Willmore F.

Holbrow III, Blakely, Sokoloff, Taylor & Zafman, LLP, Los

Angeles, for appellant John D. Brush & Co., Inc.

Gary M. Anderson (argued), Vern Schooley, Russell C. Pang-

born, Fulwider, Patton, Lee & Utecht, LLP, Long Beach, for

appellee Stuhlbarg International Sales Co., Inc.

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OPINION

McKEOWN, Circuit Judge:

This case, which arises from a trademark dispute over the

use of the term "Fire-Safe," was precipitated by the U.S. Cus-

toms Service's detention of imported safes bearing that mark.

Stuhlbarg International Sales Co., known as Sisco, brought a

suit for declaratory judgment and cancellation of the "Fire-

Safe" trademark owned by John D. Brush & Co. The district

court granted Sisco's request for a preliminary injunction. It

restrained Brush from interfering with Sisco's importation of

safes, and ordered Brush to consent to the Customs Service's

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release of the detained products. On appeal, Brush challenges

the district court's jurisdiction, arguing that exclusive jurisdic-

tion rests with the Court of International Trade and that the

claims are barred by the doctrines of exhaustion and ripeness.

Brush also contests the preliminary injunction. We conclude

that the district court had jurisdiction, was not barred from

hearing the claim, and did not abuse its discretion in issuing

the preliminary injunction.

BACKGROUND

Brush and Sisco are competitors in the home and small

business strongbox market. Each company produces safes

designed to protect the contents from fire. Since about 1930,

Brush has manufactured and sold fire-resistant security stor-

age boxes. Brush claims to have used the mark "Fire-Safe"

for more than 30 years, although its trademark application

indicates only that the mark was used at least as early as 1984.

Brush is the owner of two federally registered trademarks:

1. U.S. Trademark Registration No. 1,395,406, granted in 1986, for "all purpose non-metallic lockable containers for storing valuables;" and 2. U.S. Trademark Registration No. 1,572,870, granted in 1989, for "fire resistant containers in the nature of safes, security chests, and filing cabinets."

Sisco is of somewhat more recent vintage. Morton Stuhl- barg, Sisco's founder and president, is a former Brush employee. After leaving Brush in the late 1970s, he formed the now-defunct Saga International, Inc., and thereafter started Sisco. 1 Sisco manufactures safes which have recently _________________________________________________________________ 1 In 1986 Brush and Saga were involved in a patent and trademark dis- pute that resulted in a Stipulation and Order for Permanent Injunction enjoining Saga from misappropriation of Brush's intellectual property. In an earlier action, the district court determined that Sisco was not bound in any way by the Stipulation. See Saga Int'l, Inc. v. John D. Brush & Co., 44 U.S.P.Q.2d 1947 (C.D. Cal. 1997).

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been sold under the Brinks Home Security label as"The Pro-

tector Firesafe."

For more than ten years, the parties have, in one form or

another, been engaged in a trademark dispute over the term

"Fire-Safe." Since at least 1987, Sisco has used the term "fire-

safe" with Brush's knowledge. 2 Over the years, Brush has

engaged in a series of escalating responses. First, judging that

Sisco's sales were insignificant, Brush made a calculated

judgment to rely on the marketplace. Next, in 1990 Brush

objected in writing to Sisco's use of the term "firesafe." Sisco

responded by denying infringement, stating that the mark was

descriptive and generic, and making clear that it would con-

tinue to use it. Brush did not sue Sisco or take further action

at that time.

When the market picked up in the late 1990s, Brush

decided to take more definite action. In 1997, it unsuccess-

fully attempted to enforce a court-approved stipulation

between Brush and Saga against Sisco. See supra note 1. The

relationship soured still further in 1999 when, according to

Brush, Sisco began targeting Brush's major customers. From

May through October 1999, Sisco secured significant orders

for its products from large retailers who had been buying from

Brush, including Staples, Target, and Kmart. This signaled a

substantial increase in potential sales and market share, and

prompted Brush to take the action that precipitated this law-

suit: in June 1999, Brush recorded its "Fire-Safe " trademark

with the U.S. Customs Service. Thus, on October 8, 1999,

Customs detained nine containers holding approximately

6,400 Sisco safes. The safes were destined for one of Sisco's

new customers, Kmart, and were due at Kmart distribution

centers in late October. Customs did not provide Sisco with

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2 Brush's registered trademarks use the hyphenated term "Fire-Safe,"

whereas Sisco's products use the single word "firesafe." This difference

explains our use of the two terms throughout this Opinion.

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notice of seizure or exclusion. Sisco did not file a protest with

Customs or a complaint in the Court of International Trade.

Instead, five days after detention, Sisco filed suit in federal

district court, seeking a declaratory judgment of non-

infringement and cancellation of Brush's trademarks. Upon

Sisco's motion, the court issued a temporary restraining order; 3

a contempt order; and a preliminary injunction in which it

enjoined Brush from hindering Sisco's importation of safes

bearing the designations "Firesafe," "Fire-Safe," or "Fire

Resistant Safe" and ordered Brush to provide Customs with

written consent to Sisco's importation of safe products. Brush

appeals these orders.

DISCUSSION

I. SUBJECT MATTER J URISDICTION

Brush contends that the district court did not have subject

matter jurisdiction over this case, and that the Court of Inter-

national Trade has exclusive jurisdiction to hear a challenge

to the detention of Sisco's goods. The existence of subject

matter jurisdiction is a question of law reviewed de novo. See

Garvey v. Roberts, 203 F.3d 580, 587 (9th Cir. 2000).

This case lies at the intersection of two legal/factual con-

texts: trademark protection and customs regulation. For

although this case involves goods detained by Customs, at

bottom it is a suit seeking cancellation of federally registered

trademarks and a declaration of non-infringement. Sisco's

beef is with Brush's assertion of its claimed trademark rights.

The complication arises here because those two subjects--

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3 The TRO as originally issued ordered the Customs Service to release

the goods. After the United States protested, arguing that it was not a party

to the case, that it was an indispensable party, and that it had sovereign

immunity, the district court removed all reference to Customs, but left in

place a requirement that Brush consent to the release of the goods.

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trademark and customs--are governed by different jurisdic-

tional provisions.

In general, federal district courts have original jurisdic-

tion over actions based on federal statutes relating to trade-

marks. 15 U.S.C. § 1121, 28 U.S.C. §§ 1331, 1338; see Kmart

Corp. v. Cartier, Inc., 485 U.S. 176, 182 (1988) ("Both the

general federal-question provision . . . and the specific provi-

sion regarding actions . . . relating to trade-marks. . . would,

standing alone, vest the district courts with jurisdiction over

this action."). This grant of jurisdiction is limited, however,

by statutes conferring exclusive jurisdiction on the Court of

International Trade, or CIT. Id. The CIT's exclusive jurisdic-

tion is well defined in four sections of the federal code, 28

U.S.C. §§ 1581-1584, that deal primarily with civil customs

and trade actions by and against the United States. Unless an

action falls within the CIT's exclusive "carve out" jurisdic-

tion, then jurisdiction is proper in the district court.

This dichotomy between district court and CIT jurisdiction

creates a much-litigated distinction between parties who chal-

lenge a seizure of goods (who may sue in district court) and

parties who challenge a denial of a protest of exclusion of

goods (who may challenge the denial only in the CIT). The

difference was summarized by the CIT in R.J.F. Fabrics, Inc.

v. United States, 651 F. Supp. 1431, 1433 (Ct. Int'l Trade

1986): "The practical effect of . . . [exclusion] is to deny entry

into the customs territory of the United States. The importer

may then dispose of the goods as he chooses. In the case of

seizure, however, the government often takes control of the

merchandise, and may ultimately institute forfeiture proceed-

ings."

Here, Brush argues that jurisdiction is properly in the

CIT under 28 U.S.C. § 1581(a), which governs civil actions

against the United States "to contest denial of a protest" under

"the Tariff Act of 1930." This argument fails--Sisco has not

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sued the United States to appeal denial of a protest, but rather

has sued Brush to challenge the Fire-Safe trademark.

Although Sisco was notified that its goods were detained,

Customs did not provide notice indicating that the goods were

seized or excluded. Sisco's goods were in limbo. Indeed, it

appears that Sisco's goods were not, as excluded goods are,

available for disposal outside the United States, were not free

to be diverted elsewhere, and could not be "dispose[d] of . . .

as [Sisco] chooses." R.J.F., 651 F. Supp. at 1433. In this case,

it is not at all clear that the goods were either seized or

excluded. But the record does indicate that there was never a

notice of exclusion, or a protest of exclusion, or a denial of

a protest. Thus, just as in Kmart Corp. v. Cartier, Inc., "this

suit involves no `protest,' much less a denial of one," 485

U.S. at 190-91.

On the other hand, characterizing this as a trademark

action--or alternately, as a seizure action, and not a denial of

an exclusion protest--is consistent with the district court's

jurisdiction over substantive trademark disputes. The CIT

jurisdiction statutes do not divest a federal district court of

jurisdiction over the underlying trademark dispute. 4 Sisco's

complaint does not charge the Customs Service with improper

application of its regulations; rather, it is a declaratory judg-

ment suit under the Lanham Act that concerns substantive

trademark issues. The district court's original trademark juris-

diction is not destroyed simply because Sisco sought the

release of detained goods as a partial remedy. As the district

court noted, "the exclusion-seizure distinction is not disposi-

tive where the underlying dispute involves substantive trade-

mark issues."

The CIT itself has consistently held that substantive trade-

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4 In addition, even if the goods were excluded, the CIT only has jurisdic-

tion over a challenge to a denial of a protest of exclusion. Here, there was

no denial of a protest to challenge.

mark disputes are properly brought in district court, even

where there is denial of a protest of a notice of exclusion. In

Tempco Marketing v. United States, 957 F. Supp. 1276 (Ct.

Int'l Trade 1997), the importer received a notice of exclusion,

which it protested. Ordinarily, this would result in exclusive

jurisdiction in the CIT. But the CIT itself held that jurisdiction

was proper in the district court because the underlying issue

was one of trademark law, and the goods were eventually

seized. Id. at 1279. Similarly, in International Maven v.

McCauley, 678 F. Supp. 300 (Ct. Int'l Trade 1988), the CIT

determined that it had jurisdiction over a challenge to Cus-

toms regulations, but the district court properly had jurisdic-

tion over the substantive trademark issue. Id. at 304. Where

the underlying issue is not trademark law, but Customs regu-

lations, the converse is true: In Milin Industries, Inc. v. United

States, infringing goods were first excluded and then seized.

The eventual seizure did not, however, destroy exclusive

jurisdiction in the CIT because the underlying issue was "the

proper classification of imported merchandise." 691 F. Supp.

1454, 1457 (Ct. Int'l Trade 1988).

We conclude that the district court had jurisdiction over

Sisco's trademark suit.

II. EXHAUSTION AND RIPENESS

Brush lodges two additional threshold challenges to Sisco's

action--exhaustion and ripeness. These arguments are prem-

ised on Brush's view that the case should be viewed as a Cus-

toms case rather than a trademark case.

Generally speaking, the exhaustion doctrine "provides

that no one is entitled to judicial relief for a supposed or

threatened injury until the prescribed administrative remedy

has been exhausted." McKart v. United States , 395 U.S. 185,

193 (1969). Rationales for the doctrine include (1) avoiding

premature interruption of the administrative process; (2) let-

ting the agency develop the necessary factual background for

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decisions; (3) giving the agency the first chance to exercise its

discretion and apply its expertise; and (4) avoiding judicial

interference with an agency until it has completed its action.

Id. at 193-94.

Here, Brush contends that Sisco should have gone through

the Customs Service's detention and administrative process

before it brought suit. That process may be described as fol-

lows. If Customs discovers goods bearing a counterfeit mark,

it seizes the goods for forfeiture. 19 C.F.R. §§ 133.21, 133.22.

However, if Customs discovers goods bearing an infringing

mark,

[s]uch infringing articles are detained by the Cus- toms Service for thirty days, during which time Cus- toms is authorized to provide information to the owner of the allegedly infringed intellectual property to help determine infringement. During the thirty- day detention period, the importer may secure their release by showing that: the foreign and U.S. marks are owned by the same business or are in a parent- subsidiary relationship or are under common owner- ship or control; or that the mark was applied under authorization of the U.S. owner; or that the mark will be removed or obliterated; or that the U.S. recordant gives written consent.

4 MCCARTHY ON TRADEMARKS § 29.42 at 29-81 (1999). If the allegedly infringing party receives notice of exclusion, it then has the following administrative remedies: (1) obliteration of the trademark pursuant to 19 C.F.R. § 133.22(c)(1); (2) initia- tion of a judicial forfeiture proceeding pursuant to 19 U.S.C. § 1608; (3) petition for discretionary remission or mitigation pursuant to 19 C.F.R. § 171.11 and 19 U.S.C.§ 1618; and appeal to the Court of International Trade pursuant to 28 U.S.C. § 1581.

Under this administrative regime, it would have been

futile for Sisco to attempt to exhaust its administrative reme-

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dies, for two reasons: (1) the validity of a trademark cannot

be challenged in a forfeiture proceeding because the CIT does

not have jurisdiction over substantive trademark issues; and

(2) the administrative process would have left Sisco without

any remedy during the detention period.

First, the administrative forum is not the appropriate venue

for the trademark challenge. Most significantly, the validity of

a trademark cannot be challenged in a forfeiture proceeding.

See 4 MCCARTHY ON TRADEMARKS § 29:44 at 29-84 (1999).

Further, if Sisco chose to petition for discretionary remission

or mitigation of forfeiture pursuant to 19 U.S.C.§ 1618, it

would "bind[ ] the plaintiff exclusively to the available

administrative remedies," and foreclose judicial review. Noel

v. United States, 16 Cl. Ct. 166, 171 (1989). In addition, as

noted above, the CIT has no jurisdiction over substantive

trademark issues. Regardless which administrative path Sisco

might take, its trademark dispute would be unresolved and its

goods prevented from entering commerce with the term"fire-

safe." Therefore, none of these options would serve the goals

of maturity, creation of a more complete factual record, appli-

cation of agency expertise, or ripeness under McKart.

Second, the administrative process left Sisco without any

remedy during the detention period. And while Brush argues

that Sisco could have petitioned Customs for relief from

exclusion, seizure, or forfeiture, it is not clear what petition

process was available to Sisco. As noted above, Sisco was

never given an official notice of exclusion. Only after a notice

has been issued can an importer petition for relief under 19

C.F.R. § 171.0, or claim the seized items by giving a bond

under 19 U.S.C. § 1608.

In this case, none of the above options was available. After

Sisco's safes were detained by Customs on October 8, and

absent any notice of seizure, Sisco's goods presumably

entered a 30-day detention period. 19 C.F.R. § 133.25. During

this period, Customs regulations would have allowed the

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release of the detained goods only under specified circum-

stances, such as the removal or obliteration of the offending

mark, 19 C.F.R. § 133.22(c)(1)), or upon consent of the trade-

mark owner, 19 C.F.R. § 133.22.(c)(3). If the detained goods

were not released within 30 days, Customs could seize the

items and initiate forfeiture proceedings. 19 C.F.R.

§ 133.22(f). Therefore, absent Brush's consent, Sisco could

not obtain the release of its goods without undergoing the sub-

stantial delay and expense associated with an effort to relabel

the 6,400 safes.

But Sisco was faced with a delivery deadline of October

28, and needed to obtain the immediate release of its goods

to avoid irreparable harm stemming from lost contracts and

customers, and harm to its business reputation and goodwill.

See Gibson v. Berryhill, 411 U.S. 564, 575 n. 14 (1973) (not-

ing that administrative remedies are deemed inadequate

"[m]ost often . . . because of delay by the agency"). Thus,

given the time constraints involved, relabeling was not an

adequate remedy, and would cause precisely the harm Sisco

sought to avoid. The available administrative remedies, then,

offered no way to obtain a hearing on the trademark dispute,

or even secure release of the goods without obliteration of the

mark. None of the remedies would serve the goals discussed

in McKart and thus were manifestly inadequate. 5

Piggybacking on its exhaustion argument, Brush contends

that in the absence of final agency action, this case is not ripe

_________________________________________________________________

5 In response to the exhaustion dilemma, Brush argues that two key

cases support its position: Luxury International, Inc. v. United States, 1999

Ct. Intl Trade LEXIS 99 (Ct. Int'l Trade September 23, 1999) and Miss

America Organization v. Mattel, Inc., 945 F.2d 536 (2d Cir. 1991). Luxury

is readily distinguished because, unlike here, it involved an exclusion

order issued by the Customs Service. Miss America arose from a copyright

dispute, not a trademark dispute. Unlike trademark, the Customs Service

is specifically authorized to determine copyright infringement in adminis-

trative proceedings. See 19 C.F.R. § 133.431(d). No court has extended

Miss America to the trademark arena and we decline to do so.

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for review under Abbott Laboratories, Inc. v. Gardner, 387

U.S. 136 (1967), and Lee Pharmaceuticals v. Kreps, 577 F.2d

610, 618 (9th Cir. 1978). Ripeness is a question of law

reviewed de novo. See Natural Resources Defense Council v.

Houston, 146 F.3d 1118, 1131 (9th Cir. 1998), cert. denied

526 U.S. 1111 (1999). Abbott Laboratories and Lee Pharma-

ceuticals establish that, just as the case or controversy require-

ment of Article III prevents a court from hearing an abstract

question, the ripeness requirement prevents "the courts . . .

from entangling themselves in abstract disagreements over

administrative policies, and also . . . protect[s ] the agencies

from judicial interference until an administrative decision has

been formalized and its effects felt in a concrete way by chal-

lenging parties." Lee Pharmaceuticals, 577 F.2d at 618.

Ripeness might be an issue if Sisco had sued the Cus-

toms Service, but it did not. Sisco does not challenge a gov-

ernment agency's decision; its dispute is with Brush, and its

professed harm is evident. As required for any suit for declar-

atory judgment, there is a concrete and ripe dispute. In addi-

tion, the cases explaining the need for a "final agency action"

are inapposite because Sisco does not challenge an agency

action -- it challenges the validity of a trademark. 6

III. PRELIMINARY INJUNCTION

Brush argues that the district court abused its discretion

when it granted the preliminary injunction. 7 The grant or

denial of a preliminary injunction will be reversed only when

the district court abused its discretion, or based its decision on

an erroneous legal standard or clearly erroneous findings of

fact. Prudential Real Estate Affiliates, Inc. v. PPR Realty,

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6 Therefore, the recent case of Nippon Miniature Bearing Corp. v.

Weise, 230 F.3d 1131 (9th Cir. 2000), does not affect the analysis.

7 Brush also challenges the temporary restraining order that preceded the

preliminary injunction. Because our analysis is substantially identical for

the injunction and the TRO, we do not address the TRO separately.

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Inc., 204 F.3d 867, 874 (9th Cir. 2000). "[U]nless the district

court's decision relied on erroneous legal premises, it will not

be reversed simply because the appellate court would have

arrived at a different result if it had applied the law to the

facts of the case." Sport Form, Inc. v. United Press Int'l, Inc.,

686 F.2d 750, 752 (9th Cir. 1982).

This circuit's longstanding standard for a preliminary

injunction is well known: The moving party must show either

(1) a combination of probable success on the merits and the

possibility of irreparable injury, or (2) that serious questions

are raised and the balance of hardships tips sharply in favor

of the moving party. Dr. Seuss Enters. v. Penguin Books USA,

Inc., 109 F.3d 1394, 1397 n.1 (9th Cir. 1997). These standards

"are not separate tests but the outer reaches of a single contin-

uum." International Jensen, Inc. v. Metrosound U.S.A., 4 F.3d

819, 822 (9th Cir. 1993) (citation omitted). Here, the district

court evaluated Sisco's motion primarily under the first prong

of this standard. "In an appeal from the granting of a prelimi-

nary injunction, the appellate court will view the facts most

favorable to the plaintiff and all factual conflicts will be

resolved in favor of the prevailing party." 5 M CCARTHY ON

TRADEMARKS § 30:56 at 30-97 (1999).

A. LIKELIHOOD OF SUCCESS ON THE MERITS

Sisco does not dispute that Brush's "Fire-Safe " mark is

incontestible, and is therefore immune from challenge on cer-

tain grounds. See 15 U.S.C. § 1115(b). An incontestible mark

may be challenged, however, on the grounds that the mark is

generic. Id.; see also Park `N Fly, Inc. v. Dollar Park And

Fly, Inc., 469 U.S. 189, 194 (1985).

Whether a mark is generic is a question of fact. See 2

MCCARTHY ON TRADEMARKS § 12:12 (1999), (citing Committee

for Idaho's High Desert v. Yost, 92 F.3d 814 (9th Cir. 1996)).

Here, the district court found that the terms "Firesafe" and

"Fire Safe" are widely used by third parties in the safe indus-

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try, and that Brush was aware of Sisco's use of the terms

since at least 1987. Sisco submitted evidence that thirteen

competitors use the term "fire safe" to refer to a type or cate-

gory of safe, Brush itself had used the term in a generic sense,

and the term is included in at least one dictionary.

To counter this evidence, Brush submitted excerpts from a

consumer survey purportedly showing forty-four percent con-

sumer awareness of the term "Fire-Safe." Surveys in trade-

mark cases may be considered so long as they are conducted

according to accepted principles. See Prudential Ins. Co. v.

Gibraltar Fin. Corp., 694 F.2d 1150, 1156 (9th Cir. 1982)

("Technical unreliability goes to the weight accorded a sur-

vey, not its admissibility.") In considering what weight to

give a survey, the court may consider a variety of factors,

including survey design, nature of the questions asked, and

the experience and reputation of the surveyor. See E. & J.

Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1292-93

(9th Cir. 1992). Here, the district court noted that the survey

excerpts do not indicate whether the consumers were asked to

identify the term "firesafe" as a brand name or a common

name, a critical issue in a case involving genericness. Simply

asserting consumer awareness of the term begs the question.

Nor did the submission address the format of the survey or its

methodology. Without any information regarding the survey

design, questions, or methodology, the district court did not

abuse its discretion by ascribing little weight to the survey

excerpts submitted by Brush. And, although Brush had the

opportunity to present additional evidence (including expert

testimony) about the survey, it declined to do so.

The district court considered all of the parties' submis-

sions, applied the correct standard for determining whether a

term is generic, and found "that the plaintiff has shown a like-

lihood that the defendant's mark is subject to cancellation as

generic." This finding cannot be characterized as clear error;

we therefore conclude that the district court did not abuse its

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discretion in finding a likelihood of success on Sisco's claim

of genericness.

B. POSSIBILITY OF IRREPARABLE HARM

The district court concluded that allowing Brush to use the

Customs Service to detain Sisco's goods would result in the

possibility of irreparable harm to Sisco, especially because the

detained goods were earmarked for initial orders from large

new customers. In addition, the district court determined that,

for purposes of evaluating irreparable injury, the appropriate

status quo was one that permitted unhindered Sisco imports of

safes called "The Protector Firesafe," and Sisco's use of the

term "firesafe" in connection with other products. 8 Brush

responds, as it did before the district court, that the mere pres-

ence in the marketplace of Sisco products called"firesafes"

causes Brush irreparable harm. If that harm does exist, how-

ever, it is not new; Sisco has used the term "firesafe" for

years. The only difference is Sisco's recent success in the

marketplace coupling the "Brinks Home Security " brand

name with its non-trademark use of the term "firesafe."

We conclude that the district court did not abuse its dis-

cretion in its analysis of the preliminary injunction. The dis-

trict court found that, without the injunction, Sisco stood to

lose its newfound customers and accompanying goodwill and

revenue. Evidence of threatened loss of prospective customers

or goodwill certainly supports a finding of the possibility of

irreparable harm. See Tom Doherty Assocs., Inc. v. Saban

Entm't, Inc., 60 F.3d 27, 37-38 (2d Cir. 1995) (in trademark

_________________________________________________________________

8 Although the nature of the mandatory injunction--requiring Brush to

provide the Customs Service with consent to importation--may be some-

what unusual, it was within the broad discretion of the district court to

fashion a remedy to preserve the status quo and prevent irreparable harm.

Brush acknowledged that the court had the authority to order consent,

even while it disagreed with the district court's view of the status quo. The

court itself determined that it could not direct its order at the Customs Ser-

vice, which was not a party, and amended its first TRO appropriately.

licensing case, deprivation of opportunity to expand business

is irreparable harm). On the record before us, that finding is

not clearly erroneous. Nor did the district court misapply the

legal principles governing irreparable harm. Thus, we affirm

the grant of the preliminary injunction.

AFFIRMED.

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