## Facts

- Home Box Office, Inc. (HBO) and Showtime/The Movie Channel Inc. (Showtime) competed in premium subscription television.
- Showtime ran a marketing campaign using comparative, joint-reference language, including the slogan: “SHOWTIME & HBO. It’s Not Either/Or Anymore.”
- HBO alleged the campaign could mislead consumers into believing the companies were affiliated or that one endorsed the other, creating a likelihood of confusion and harm to HBO’s goodwill.
- Some Showtime advertisements used disclaimers distinguishing Showtime from HBO; other materials did not.
- HBO sued in the Southern District of New York under federal trademark and unfair competition theories (and related state claims) and moved for a preliminary injunction.
- After an evidentiary hearing, the district court issued a limited preliminary injunction requiring adequate disclaimers for use of the challenged slogan and exempted certain promotional materials shown at the hearing.
- HBO appealed seeking broader relief and challenging the district court’s handling of Showtime’s revised ads presented at the hearing; Showtime cross-appealed, arguing no preliminary injunction should have issued.

## Issues

1. Whether HBO satisfied the Second Circuit standard for preliminary injunctive relief in a trademark/unfair competition dispute based on likely consumer confusion and irreparable harm.
2. Whether the district court properly considered Showtime’s revised advertisements and disclaimers presented during the preliminary injunction hearing.
3. Whether the district court improperly exempted specific promotional materials and effectively approved future use of the slogan so long as a disclaimer was included.
4. Whether the district court’s procedure denied HBO fair notice or a meaningful opportunity to contest the revised materials at the preliminary stage.

## Decision

- The Second Circuit affirmed the district court’s determination that preliminary injunctive relief was warranted based on the record of likely confusion and potential irreparable harm to HBO’s goodwill.
- The court vacated the portions of the order that:
  - exempted specific Showtime promotional materials from the injunction, and
  - treated disclaimers as an across-the-board cure that would automatically permit continued use of the slogan.
- The case was remanded for further proceedings consistent with the appellate ruling.

## Legal Principles

- A preliminary injunction requires irreparable harm and either (a) likelihood of success on the merits or (b) serious questions going to the merits plus a balance of hardships tipping decidedly toward the movant.
- In trademark and unfair competition disputes, likely consumer confusion can support a finding of irreparable harm through threatened damage to goodwill and mark distinctiveness.
- A court may consider a defendant’s proposed remedial steps, but on a limited preliminary record it should not convert a preliminary injunction proceeding into affirmative approval of specific advertisements or future formats.
- The effectiveness of disclaimers in reducing confusion is context-dependent; courts should not treat disclaimers as a categorical “safe harbor” at the preliminary stage.

## Conclusion

The Second Circuit upheld injunctive relief to address a credible risk of consumer confusion from a comparative campaign referencing a competitor’s mark, but rejected ad-by-ad exemptions and a blanket rule that disclaimers alone render such advertising nonconfusing, reserving those determinations for a fuller record.


Home Box Office, Inc. v. Showtime/The Movie Channel Inc., 832 F.2d 1311 (2d Cir. 1987)