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Trademark Infringement and Irreparable Harm: Implications of the Trademark Modernization Act

Proving Harm With and Without Survey Evidence

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Tuesday, May 18, 2021

Recorded event now available

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This CLE course will guide trademark counsel on the courts' treatment of irreparable harm since the eBay decision and the Trademark Modernization Act's (TMA) impact. The panel will also discuss the steps to take to prove irreparable harm and obtain an injunction--both with and without survey evidence.


In eBay v. MercExchange, the Supreme Court rejected the notion that there is a presumption of irreparable harm upon a finding of infringement for purposes of determining whether to grant a permanent injunction in patent cases. Since then, circuit and district courts have varied in the determination of whether eBay’s rule for patent cases applied to trademark cases.

In 2021, the TMA resolved this split. The TMA clarifies that a rebuttable presumption of irreparable harm applies when there has been a finding of infringement in the permanent injunction context or upon a finding of likelihood of success on the merits in the context of preliminary injunctive relief.

Trademark counsel often face the challenge of presenting sufficient evidence of irreparable harm to persuade the court to grant an injunction.

Listen as our authoritative panel examines how the courts are treating the issue of irreparable harm since the eBay decision, including the Supreme Court's denial of certiorari in the Herb Reed case and the implications of that action. The panel also will discuss steps to take to prove irreparable harm and obtain an injunction, both with and without the aid of survey evidence.



  1. Irreparable harm in trademark cases since eBay
    1. Treatment by federal courts of appeal
    2. Treatment by federal district courts
    3. Implications of the TMA
  2. Proving irreparable harm without the aid of survey evidence
  3. Demonstrating irreparable harm using surveys as a proxy


The panel will review these and other key issues:

  • Impact of the TMA for irreparable harm
  • Use of survey evidence as a proxy for proving harm
  • Lessons from rulings regarding irreparable harm in recent trademark infringement cases


Bradley, Jessica
Jessica D. Bradley

Jones Day

Ms. Bradley has more than 15 years of experience litigating trademark, trade dress, false advertising, unfair...  |  Read More

Wilkes, Meredith
Meredith M. Wilkes

Jones Day

Ms. Wilkes is a trial lawyer whose practice is focused on brand protection and enforcement. She has led...  |  Read More

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