Opinion
No. 08-56188.
Argued and Submitted May 5, 2009 Pasadena, California.
May 15, 2009.
Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, District Judge, Presiding D.C. No. CV-08-01281-RSWLCW.
Before: GOODWIN, O'SCANNLAIN, and GRABER, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Manley Toys, Ltd., appeals the district court's denial of its motion for a preliminary injunction. We affirm.
1. We take judicial notice of the documents from the related case ofSLB Toys, USA, Inc. v. Wham-O, Inc., No. 08-55432, that Wham-O, Inc., included in the Excerpts of Record. See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (noting that this court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue" (internal quotation marks omitted)). We do not, and cannot, take judicial notice of Tab 1, a declaration in support of a motion for summary judgment, because it was submitted to the district court in January 2009, well after the district court ruled on the preliminary injunction. See Ball v. Rodgers, 492 F.3d 1094, 1118 (9th Cir. 2007) (holding that the court of appeals cannot consider documents that are not part of the district court's record).
2. "The grant or denial of a preliminary injunction will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact."United States v. Peninsula Commc'ns, Inc., 287 F.3d 832, 839 (9th Cir. 2002). The district court held that Manley "had not sufficiently shown irreparable harm because the purported harm could have been avoided through its own conduct and there are legal remedies available to compensate Manley for its purported harm." The court further held that Manley had "not sufficiently shown likelihood of success on the merits because Manley has not sufficiently shown that Wham-O's conduct was legally wrongful."
The district court did not abuse its discretion in so ruling. Manley's alleged lost profits can be remedied by an award of damages. Additionally, Manley did not demonstrate that Wham-O did anything other than assert its legal rights in its yellow trademark, which the jury inSLB Toys found to be valid.
AFFIRMED.