The Third Circuit ruled in Ferring Pharmaceuticals v. Watson Pharmaceuticals on August 26 that “a party seeking a preliminary injunction in a Lanham Act case is not entitled to a presumption of irreparable harm but rather is required to demonstrate that she is likely to suffer irreparable harm if an injunction is not granted.” (Slip op. at 21.)
The Third Circuit observed that while it had never recognized such a presumption in false advertising cases, the presumption had long been applied in trademark infringement cases. However, the presumption is no longer tenable in light of the Supreme Court’s rejection of categorical rules that would replace the traditional four-factor test for injunctions in eBay, Inc. v. MercExchange, 547 U.S. 403 (2006), and requirement in Winter v. NRDC, 555 U.S. 7 (2008) that a party seeking a preliminary injunction must demonstrate a probability, not possibility, of irreparable harm.
Although eBay had arisen in the patent context, the court found its reasoning equally applicable to Lanham Act cases, joining the Ninth Circuit in so finding. See Herb Reed Enters. v. Fl. Entm’t Mgmt., 736 F.3d 1239 (9th Cir. 2013). A petition for a writ of certiorari is pending in Herb Reed Enterprises. INTA has submitted an amicus brief in support of a grant of cert.