Herb Reed Enterprises (HRE) claimed that Larry Marshak infringed HRE's trademark rights in "The Platters", a name and mark that relate to a singing group whose hey-day spanned the second half of the 1950s.

The band split up in the 1960s. But nostalgia for "The Great Pretender", "Smoke Gets in Your Eyes", and "Only You" has lived on. And groups using "Platters" in their names have sprung forth and sung their hearts out for the half-century that has ensued.

The district court granted HRE a preliminary injunction, but it didn't make findings in support of its conclusion on the "irreparable harm" requirement for injunctive relief. Old cases held that trademark infringement in itself raises a presumption of harm that defies repair — injury to reputation, loss of sales, damage to relationships, and the like.

The Ninth Circuit ruled that the old cases no longer hold sway. It cited Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), as making clear that "the landscape for benchmarking irreparable harm has changed". Herb Reed Enterprises, LLC v. Florida Entertainment Mgmt., Inc., No. 12-16868, slip op. at 17 (9th Cir. Dec. 2, 2013). No longer may courts presume the harm that dare not call itself repairable. No. "Those seeking injunctive relief must proffer evidence sufficient to establish a likelihood of irreparable harm." Id. at 21.

Blawgletter observes that you may use hearsay and other non-"admissible evidence" to get a preliminary injunction. Id. at 20 n.5. "Due to the urgency of obtaining a preliminary injunction at a point when there has been limited factual development, the rules of evidence do not apply strictly to preliminary injunction proceedings." Id.

How about in class certification proceedings, eh?