                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 09-3241
                                     _____________

                                 PRIMEPOINT, L.L.C.

                                            v.

                                    PRIMEPAY, INC.,
                                           Appellant

                                     _____________

                        On Appeal from the United States District Court
                               for the District of New Jersey
                                  (Civ. No. 1-06-cv-01551)
                            District Judge: Hon. Renee M. Bumb

                                   Argued: September 23, 2010

       Before: McKEE, Chief Judge, AMBRO and CHAGARES, Circuit Judges


                          (Opinion filed: November 29, 2010)


Philip S. Burnham, II, Esq.
Burnham Law Group
Plaza 1000 at Main Street
Suite 202
Voorhees, NJ 08043

Douglas V. Rigler, Esq. (Argued)
Young & Thompson
209 Madison Street
Suite 500
Alexandria, VA 22314
       Counsel for Appellant
Abbe Fletman, Esq. (Argued)
Flaster Greenberg
1600 John F. Kennedy Boulevard
2nd Floor
Philadelphia, PA 19103

Adam E. Gersh, Esq.
Darren H. Goldstein, Esq.
Flaster Greenberg
1810 Chapel Avenue West
Cherry Hill, NJ 08002
       Counsel for Appellee

                                          __________

                                           OPINION
                                          _________


McKEE, Chief Judge.

          PrimePay, Inc. appeals the district court’s final judgment that Primepoint, L.L.C.

did not infringe upon PrimePay’s trademarks. For the reasons set forth below, we will

affirm.

          Because we write primarily for the parties, we need not repeat the facts and

procedural history of this case. Moreover, the district court has ably summarized that

background and explained the legal issues in this case. See Primepoint, L.L.C. v.

Primepay, Inc., 2009 WL 1884369 (D.N.J. June 30, 2009); Primepoint, L.L.C. v.

Primepay, Inc., 545 F. Supp. 2d. 426 (D.N.J. 2008). On appeal, PrimePay argues that the

district court; (1) legally erred when it failed to enjoin Primepoint’s use of the PrimeTax

mark, and (2) legally and factually erred when it determined that there was no likelihood




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of confusion between the marks of PrimePay and Primepoint, and therefore Primepoint

did not infringe PrimePay’s mark.

       PrimePay argues that the district court erred in failing to enjoin Primepoint’s use

of the mark “PrimeTax.” However, there is no evidence on this record that Primepoint

continued to use that mark after it agreed to cease all use. It agreed to cease the use upon

being notified that its use may infringe PrimePay’s trademark. Although PrimePay

argues that it is nevertheless entitled to the requested injunction, it is clear that the district

court did not err in refusing to enjoin something that was no longer occurring, absent

evidence of the likelihood that an infringing use would occur again in the future.

       While “the court’s power to grant injunctive relief survives discontinuance of the

illegal conduct. the purpose of an injunction is to prevent future violations.” United

States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). Where the illegal conduct has

ceased, the party seeking the injunction bears the burden of proving “that there exists

some cognizable danger of recurrent violation, something more than the mere possibility

which serves to keep the case alive.” Id.

       We also reject PrimePay’s claim that the district court erred when it determined

that PrimePay’s proof did not establish a sufficient likelihood of confusion between the

marks of PrimePay and Primepoint to get relief. Judge Bumb issued a detailed and

thoughtful opinion that carefully and clearly explained her reasons for finding that

PrimePay had not established a likelihood of confusion, see Primepoint, L.L.C. v.

Primepay, Inc., 2009 WL 1884369 (D.N.J. June 30, 2009), and we will affirm

substantially for the reasons set forth by Judge Bumb.


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