Presuming harm

For a long time, federal courts presumed that misuse of someone's intellectual property — things like patents, copyrights, and trademarks — would cause the owner "irreparable harm". The bad acts, the courts believed, would ipso facto injure the IP owner in ways that mere money could not fix.

Change in the air

But that presumption took a hit when the Supreme Court ruled in eBay Inc. v. MerExchange, L.L.C., 547 U.S. 388 (2006), that the court of appeals had "erred in applying a categorical rule that injunctions should issue upon a showing of valid patent infringement." Ferring Pharmaceuticals, Inc. v. Watson Pharmaceuticals, Inc., No. 13-2290, slip op. at 13 (3d Cir. Aug. 26, 2014). The decision prompted the Federal Circuit to "jettison[] the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief." Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011). The Second and Ninth Circuits jumped on the bandwagon in copyright cases. Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010); Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir. 2011).

False advertising and trademark claims too?

In Ferring Pharmaceuticals, the Third Circuit held that the logic of eBay applied to cases under the Lanham Act, which provides a cause of action for false advertising and for infringement of trademarks, service marks, and trade dress. The district court had declined to presume that statements by a Watson Pharmaceuticals representative would irreparably harm Ferring. The Third Circuit affirmed, ruling "that a party seeking a preliminary injunction in a Lanham act case is not entitled to a presumption of irreparable harm but rather is required to demonstrate that she is likely to suffer irreparable harm if an injunction is not granted." Ferring Pharmaceuticals, slip op. at 21.

The panel went on to review the evidence. It pointed to statements that the "allegedly false statements [about Ferring's drug] would not be repeated." Id. at 24. The court therefore held that the district court "did not clearly err in finding that Ferring failed to demonstrate that it would likely suffer irreparable harm in the absence of preliminary injunctive relief." Id.

So?

You always have to show irreparable harm to get an injunction. Even if your case involves theft of intellectual property. You still must prove that you'll suffer injury money can't compensate for — things like hard-to-calculate loss of opportunities and harm to reputation. Get ready.