## Facts

- The American Board of Psychiatry and Neurology, Inc. (ABPN) is a nonprofit that certifies physicians and owns a federally registered certification mark for ABPN certification.
- ABPN authorizes use of its mark only by physicians who have met ABPN requirements and received an ABPN certificate or license to use the mark.
- Dr. Gloria Johnson-Powell, a psychiatrist and frequent expert witness, was not ABPN-certified but repeatedly represented under oath that she was ABPN-certified.
- In 1991, she testified in a deposition and at trial that she was ABPN-certified.
- In 1993, she again stated in a deposition that she was ABPN-certified; when challenged at trial, she claimed uncertainty about whether she was certified.
- In 1995, she repeated the claim in a deposition and at trial.
- She circulated a résumé stating she was ABPN-certified and listed a purported certification number.
- ABPN learned of the representations in late 1995, contacted Johnson-Powell, and then filed suit under the Lanham Act alleging infringement of its certification mark.
- In opposing ABPN’s motion for a preliminary injunction, Johnson-Powell submitted an affidavit promising to stop any misuse, provided a revised résumé removing the mark, and asserted she had stopped providing expert testimony.

## Issues

1. Whether the district court abused its discretion in denying a preliminary injunction against alleged infringement of ABPN’s certification mark where past misuse was shown but the court found future infringement unlikely and irreparable harm insufficient.

## Decision

- The First Circuit affirmed the denial of a preliminary injunction.
- The court treated the case as close but held the district court’s prediction that future infringement was unlikely fell within the range of permissible discretionary judgments.
- The court accepted that ABPN showed a strong likelihood of success on the merits based on repeated false claims of certification and résumé use, but held that preliminary relief still required an adequate showing of irreparable harm tied to likely future infringement.
- The court deferred to the district court’s credibility and predictive assessments, including its decision to credit Johnson-Powell’s sworn promise to stop, her revised résumé, and her representation that she had ceased expert-witness work.

## Legal Principles

- A preliminary injunction requires consideration of: (1) likelihood of success on the merits, (2) irreparable harm absent relief, (3) balance of harms, and (4) public interest.
- Likelihood of success, while central, does not alone justify preliminary relief; irreparable harm and a sufficient likelihood of forward-looking injury must also be shown.
- Past infringement, without a sufficient basis to find likely future infringement, may be inadequate to support preliminary injunctive relief.
- In assessing irreparable harm, a court may consider post-suit corrective measures and sworn assurances bearing on the probability of future misconduct.
- Appellate review of preliminary-injunction decisions is for abuse of discretion, with substantial deference to the district court’s credibility determinations and forecasts of future conduct.

## Conclusion

The First Circuit upheld the denial of preliminary injunctive relief because, despite strong evidence of past certification-mark misuse, the district court permissibly found ABPN had not shown a sufficient likelihood of future infringement and irreparable harm warranting an injunction.


Am. Bd. of Psychiatry & Neurology, Inc. v. Johnson-Powell, 129 F.3d 1 (1st Cir. 1997)