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 premium CLE webinar with Q&A

Conducted on Thursday, May 10, 2018

Recorded event now available

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Program Materials

This CLE webinar will guide 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 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.

The Supreme Court denied certiorari in Herb Reed Enterp. v. Florida Entertainment Mgmt. (Sup. Ct. 2014), leaving in place the Ninth Circuit’s holding that plaintiffs in trademark infringement actions must show irreparable harm to obtain a preliminary injunction. The same year, the Third Circuit went further, holding a court can find irreparable harm by permissible inference. Groupe SEB USA Inc. v. Euro-Pro Operating L.L.C. (3d Cir. 2014)

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. 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 sufficient to show a likelihood of irreparable harm
  • Use of survey evidence as a proxy for proving harm
  • Lessons from rulings regarding irreparable harm in recent trademark infringement cases


Kagan, Jared
Jared I. Kagan

Debevoise & Plimpton

Mr. Kagan practices in the firm’s Intellectual Property and Media Group. His practice includes litigation and...  |  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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