With its recent opinion in Ferring Pharms., Inc. v. Watson Pharms., Inc., 765 F.3d 205 (3rd Cir. 2014), the Third Circuit eliminated the presumption of irreparable harm for Lanham Act plaintiffs seeking injunctive relief. The decision reversed longstanding precedent that provided plaintiffs with a presumption of irreparable harm and extends the Supreme Court's ruling in eBay v. MercExchange, LLC, 547 U.S. 403 (2006). It also significantly raises the bar for plaintiffs to obtain injunctive relief by requiring them to prove not only a likelihood of success on the merits, but also that irreparable harm will likely result absent the issuance of an injunction. The Third Circuit's holding in Ferring Pharms. follows the Ninth Circuit's ruling in Herb Reed Enters., LLC v. Florida Entm't Mgmt., Inc., 736 F.3d 1239 (9th Cir. 2013), which also interpreted eBay to remove the presumption. The Third and Ninth Circuit are now the only Courts of Appeals that have expressly decided the issue in the trademark context post-eBay. Until the 2006 eBay opinion, the majority of courts conflated the likelihood of success on the merits element with the irreparable harm element. Now—at least in the Third and Ninth Circuits—plaintiffs must establish both elements, which could make it more difficult to obtain injunctive relief against trademark infringement. Plaintiffs in these jurisdictions will no longer have the benefit of the previously applicable presumption and instead will be required to set forth evidence (actual consumer confusion, loss of market share, loss of sales, etc.) establishing a likelihood of irreparable harm.

Source: Ferring Pharms., Inc. v. Watson Pharms., Inc., 765 F.3d 205 (3rd Cir. 2014).

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