The American Intellectual Property Law Association, Intellectual Property Owners Association, and the International Trademark Association have sent a letter to the Chairman and Ranking Member of the U.S. House of Representatives Judiciary Committee concerning the availability of a presumption of irreparable harm related to injunctions in trademark infringement and dilution. The letter points to the erosion of the presumption by some courts following the U.S. Supreme Court eBay case concerning patent injunctions. The letter states:
Injury in most Lanham Act violations is typically not readily or immediately quantifiable. Injunctive relief (which requires the claimant to meet a four-part test, including a showing of irreparable harm) most often is the only effective remedy to prevent harm to consumers and protect the trademark owner's reputation. For this reason, historically, U.S. federal courts, when considering a claim under the Lanham Act, almost uniformly applied a rebuttable presumption of irreparable harm upon a finding of liability or, in the context of a preliminary injunction, when liability was found to be probable. A rebuttable presumption of irreparable harm is an important avenue to adequate relief, given the difficulty of quantifying this type of injury. . . .
Legislation reestablishing a presumption of irreparable harm under the Lanham Act would provide clarity for the courts and litigants alike. It would provide injunctive relief to trademark owners who prevail on the merits of their claim or who, in preliminary injunction proceedings, demonstrate that they are likely to prevail on the merits, and allow them to appropriately protect their brands and reputations. This will also protect consumers from harm arising from confusion about the source of products or services.
Hat tip to Professor Dennis Crouch of the Patently Obvious Blog.
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