“Changed Circumstances” Prelim Denied in WDNY: But Do People Drive 40 Minutes For Ice Cream?

A motion for preliminary injunctive relief that would otherwise be deemed to be untimely, may be viable if there have been recent material changes to the circumstances. For example, plaintiff, which had been tolerating a geographically remote third-party, may contest that party’s recent expansion into plaintiff’s geographic market. Here, in a dispute between two upstate New York business over the mark LAKE EFFECT for ice cream, plaintiff’s motion for urgent relief was denied, as it failed to establish that ‘changed circumstances’ offset its excessive delay in protesting defendant’s somewhat lengthy use. Defendant had been selling ice cream in a location 40 minutes from plaintiff. Plaintiff began business discussions with defendant in 2013, coinciding with defendant’s expansion of distribution into a third party shop from 2012 until 2014. Defendant opened an ice cream store under its own mark in 2017. Plaintiff resumed negotiations, then…

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