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35
Preliminary Injunctions
Irreparable Harm and the Role
of the Damages Expert
Peter Rybolt
I
n many forms of business litigation, including intellectual prop-
erty but extending to other areas as well, a plaintiff may seek to
enjoin the defendant from its allegedly wrongful conduct during
the pendency of trial, ostensibly preserving the parties’ competi-
tive position through resolution of the dispute.
In 2020, with the passage of the Trademark Modernization
Act (TMA), Congress sought to clarify a long-disputed point:
whether a plaintiff in a trademark action should be entitled to a
presumption of irreparable harm upon demonstrating a likelihood
of success. Historically, some courts and jurisdictions have tended
to grant such a presumption; others have been more deliberative.
Thus, the TMA amended 15 U.S.C. § 1116(a) to state unambigu-
ously that a plaintiff seeking a preliminary injunction “shall be
entitled to a rebuttable presumption of irreparable harm . . . upon
a nding of likelihood of success on the merits.”
That seems to clear the air with respect to trademark cases, but
recent decisions in other cases indicate that most courts, in consid-
ering whether to grant preliminary injunctive relief, continue to
apply the long-standard four-factor test: (1) whether the plaintiff
is likely to succeed on the merits; (2) whether the plaintiff is likely
to suffer irreparable harm in the absence of such relief; (3) whether
the balance of equities favors the plaintiff or the defendant; and
(4) whether the public is best served by the grant of an injunc-
tion or by its denial.1 It will be interesting to see if courts in other
cases adopt a presumption of harm, but for now a clear pattern
has yet to emerge.
This article covers recent rulings involving preliminary injunc-
tions in various settings and then discusses the factors experts and
counsel may wish to consider when choosing to oppose (or seek)
a preliminary injunction.
Recent Cases Involving Preliminary Injunctions
Historically, courts have differed on the question of irreparable
harm. Some have tended toward a presumption of irreparable
harm if the plaintiff has successfully demonstrated that it is likely
to prevail on the merits; others have preferred a more deliberative
process. The U.S. Supreme Court seemed to put the issue to rest in
eBay Inc. v. MercExchange, L.L.C., emphasizing the importance of
Photo by Andrew Brookes/Getty Images
