A federal appeals court has vacated a temporary injunction that prevented Elf Bar manufacturer IMiracle and some distributors from selling Elf-branded products in the United States during a trademark dispute over the “Elf Bar” name.
The Aug. 14 ruling by the U.S. Court of Appeals for the Federal Circuit does not affect the underlying case, which must still be decided by Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida. The decision relates only to the injunction granted by Cannon that prevents Elf Bar's manufacturer and several distributors from selling Elf-branded products in the U.S. while the trademark dispute is in progress.
Following Judge Cannon’s February 2023 injunction, Elf manufacturer IMiracle rebranded Elf Bar products sold in the U.S. as EBDESIGN.
The Federal Circuit Court of Appeals has appellate jurisdiction over all trademark and copyright rulings (and some other special types of cases). All appeals of lower court trademark decisions go to the Federal Circuit.
The trademark lawsuit, filed in 2022 by Florida-based VPR brands, charges Shenzhen Weiboli Technology Co. Ltd. (IMiracle’s affiliated company) and a group of Elf Bar master distributors with unlawfully using VPR’s “Elf” trademark in U.S. commerce.
Judge Cannon could issue a new injunction with more robust legal reasoning, or proceed with the trademark case without issuing an injunction
VPR has held a registered trademark for the “Elf” brand—under the categories “Electronic cigarette lighters; Electronic cigarettes; Smokeless cigarette vaporizer pipe.”— since 2018, but doesn’t appear to have ever sold a nicotine vaping product using the Elf name. (The company does sell a battery for cannabis carts called the “Elf Auto Draw Conceal Oil Vaporizer” under its HoneyStick brand.)
VPR launched a website last year showing several disposable vapes similar to Elf Bar products, which all display the caption “This product is coming soon.” However, no nicotine vaping product can now be legally introduced to the market without first receiving FDA authorization. New products cannot be sold without prior authorization, as they could when IMiracle submitted its PMTAs for synthetic nicotine-based ELFBAR devices in 2021.
For this reason, Shenzhen Weiboli (IMiracle) and its fellow defendants argued that VPR’s trademark was invalid. Judge Cannon rejected the defendants’ unlawful-use defense, and issued an injunction preventing IMiracle from selling Elf-branded products in the U.S. until the case was decided.
But the appeals court found that “the district court committed legal error by misinterpreting the Eleventh Circuit’s guidance and unreasonably rejecting Weiboli’s unlawful-use defense without adequate legal or factual analysis.” Judge Cannon could issue a new injunction with more robust legal reasoning, or proceed with the trademark case without issuing an injunction.
It’s unlikely that IMiracle will now revert to using the Elf Bar name on its products, since the trademark lawsuit has not been decided, and the company could be forced to rebrand a second time if it loses.
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