Seattle Trademark Lawyer

An injunction’s got to be specific enough so it can be understood and enforced.

That’s the problem the Ninth Circuit had with the District of Nevada’s injunction against a home inspection company that encouraged home owners to file construction defect claims against a developer in violation of the Lanham Act and Nevada Deceptive Trade Practices Act.

The district court’s injunction prohibited the defendants from “soliciting and/or performing residential inspections and/or providing inspection reports … by means of illegal, unlicensed and false practices.”

The order gave several examples of prohibited practices: “(1) falsely representing that the defendants are ‘properly licensed under Nevada law to perform structural inspections; (2) properly licensed under Nevada law to … perform, provide or communicate inspection reports; and/or (3) are acting as representatives or agents under the authority of Del Webb.’”

Yet, even with these examples, the Ninth Circuit found “the general prohibition against using ‘illegal, unlicensed and false practices’ is too vague to be enforceable. The examples of prohibited past conduct do not sufficiently define what additional future conduct will be covered.”

The court noted that “Rule 65(d) requires an injunction to ‘state its terms specifically’ and ‘describe in reasonable detail … the act or acts restrained.’ ‘The benchmark for clarity and fair notice is not lawyers and judges, who are schooled in the nuances of [the] law,’ but instead the ‘lay person, who is the target of the injunction.’”

Therefore, the court vacated the vague portion of the injunction.

The case cite is Del Webb Communities, Inc. v. Partington, __ F.3d __, 2011 WL 2854086, No. 10-15975 (9th Cir. July 20, 2011).