Trademark Infringement: Demonstrating Irreparable Harm to Obtain an Injunction

Navigating Inconsistent Court Treatment, Proving Harm With and Without Survey Evidence

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

Conducted on Thursday, April 21, 2016

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to trademark counsel on the courts’ treatment of irreparable harm since the eBay decision. The panel will also discuss the steps to take to prove irreparable harm and obtain an injunction, both with and without survey evidence.


In its 2006 decision, 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, the circuit and district courts have inconsistently applied the presumption in trademark cases.

In Oct. 2014, the Supreme Court denied certiorari in Herb Reed Enterp. v. Florida Entertainment Mgmt., leaving in place the Ninth Circuit’s holding that plaintiffs in trademark infringement actions must show irreparable harm in order to obtain a preliminary injunction. In a Dec. 2014 decision, the Third Circuit went further, holding a court can find irreparable harm by permissible inference. [Groupe SEB USA Inc. v. Euro-Pro Operating LLC (3d Cir. 2014)]

Trademark counsel are now more often faced with the challenge of presenting sufficient evidence of irreparable harm in order 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. The requirement of proving irreparable harm in trademark cases since eBay
    1. Treatment by federal courts of appeal
    2. Treatment by federal district courts
  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:

  • Type of evidence that is sufficient to show a likelihood of irreparable harm
  • Use of survey evidence as a proxy for proving harm
  • Practical lessons from rulings regarding irreparable harm in recent trademark infringement cases


Hudis, Jonathan
Jonathan Hudis

Quarles & Brady

Mr. Hudis counsels clients in trademark, copyright, unfair competition and trade secrets matters and is well...  |  Read More

Uli Widmaier
Uli Widmaier

Pattishall McAuliffe Newbury Hilliard & Geraldson

Mr. Widmaier has been charged with protecting some of the world's most identified brands. He works with clients to...  |  Read More

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