World Trademark Review Daily
When seeking a preliminary injunction in a trademark infringement case, the irreparable harm requirement has traditionally been satisfied upon a showing by the trademark owner of a likelihood of success on the merits of its trademark claim. The recent Ninth Circuit decision in Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc., et al. removes the “presumption” of irreparable harm and requires a trademark owner seeking a preliminary injunction to prove – by way of evidence and not mere presumption – that it will suffer irreparable harm in the absence of the requested relief. The Ninth Circuit’s decision aligns the irreparable harm requirement in the trademark context with that in the patent context, and with the Supreme Court’s decisions in in eBay Inc. v. MercExchange, L.L.C.