IP Law Daily, TRADE SECRETS—D.N.J.: Preliminary injunction denied in deer repellant trade secret dispute, (Jun 5, 2024)

By Kevin M. Finson

An injunction was denied because the party claiming ownership of the trade secret at issue did not show a risk of irreparable harm.

A deer repellant service company failed to show it was entitled to an injunction to prevent a former licensee’s use of its proprietary techniques or trademarks, the U.S. District Court in Trenton has held. There was no showing of irreparable harm (New Jersey Deer Control, LLC v. EN Garde Deer Defense, LLC, No. 3:24-cv-05587-MAS-RLS (D.N.J. June 3, 2024)).

New Jersey Deer Control, LLC (NJDC) was in the business of deer repellant services in New York and New Jersey and claimed its “formerly patented” deer formula, in conjunction with proprietary and confidential spraying techniques, constituted a trade secret. NJDC at one time licensed its system and trademarks to En Garde Deer Defense (En Garde), a deer repellant service company operating in Ohio. The license agreement contained various confidentiality, non-disclosure, and restrictive covenants. Upon expiration of NJDC’s patent, En Garde declined to renew the licensing agreement and continued to operate, “on information and belief,” using NJDC’s trade secrets to do so.

NJDC brought suit for trademark infringement, misappropriation of trade secrets, breach of contract, and breach of the covenant of good faith and fair dealing, and sought a temporary restraining order and preliminary injunction asking that En Garde be barred from soliciting or providing deer repellant and deer control services within eight specified counties until 2027 and to cease using its trade secrets. Although the parties focused their briefing on the preliminary injunction factor of the likelihood of success on the merits, the court saw fit to review only the irreparable harm factor.

Irreparable harm. NJDC alleged upon information and belief that En Garde was using its trade secrets. The court held that this speculation, absent specific factual allegations, could not support a finding of irreparable harm. NJDC also alleged that En Garde’s website was a virtual copy of its own and incorporated its trademarks, but admitted in its own brief that this website was changed after the license agreement expired. Past conduct which had been fully ameliorated could not possibly provide a basis for a present injunction. NJDC did not clearly show that En Garde was continuing to use its trademarks, trade secrets, or systems. While the parties could someday expand their operations and come into conflicting geographic regions, at present they did not compete for the same customers and any risk that they would was merely speculative.

The court denied the preliminary injunction, but did allow the parties to engage in expedited discovery and indicated it would entertain a renewed motion if facts obtained through that expedited discovery supported such a motion.

The Case is No. 3:24-cv-05587-MAS-RLS.

Judge: Shipp, M.

Attorneys: Christopher J. Marino (Giordano Halleran & Ciesla, PC) for New Jersey Deer Control, LLC. Peter J. Lamont (Law Offices of Peter J. Lamont) for EN Garde Deer Defense, LLC.

Companies: New Jersey Deer Control, LLC; EN Garde Deer Defense, LLC

Cases: Trademark TradeSecrets NewJerseyNews