The Irreparably Harmed Presumption? Why the Presumption of Irreparable Harm in Trademark Law Will Survive eBay and Winter

I. INTRODUCTION Trademarks are a unique and potentially valuable form of intellectual property. Unlike patents and copyrights, trademarks serve to indicate the source of commercial goods or services. As source indicators, trademarks function to both represent the acquired goodwill that consumers attribute to the owner of the mark and assure consumers of some quality of the associated goods or services. Because of the communicative function of trademarks, businesses often invest significant time, money, and energy to ensure that dieir trademarks are protected from would-be infringers. In this effort to protect their goodwill and reputation, businesses have traditionally relied on preliminary injunctive relief as "one of the most powerful weapons"1 against trademark infringement. Indeed, "[gjetting a preliminary injunction means that die trademark owner can force the alleged infringer to immediately stop all use of the challenged mark and undergo an expensive change to a significandy different mark."2 Thus, a preliminary injunction serves to "stop the bleeding" early on in litigation and can mitigate potential damage to the trademark owner's reputation. Five basic factors guide judges in determining whether a preliminary injunction should issue.3 To obtain a preliminary injunction, a trademark owner must demonstrate 1. that it is likely to succeed upon an ultimate trial on the merits, 2. that it has suffered an irreparable injury, 3. that remedies available at law, such as monetary damages, are inadequate to compensate for the injury, 4. that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted, and 5. that the public interest would not be disserved by a preliminary injunction.4 Traditionally, trademark owners seeking a preliminary injunction have almost uniformly enjoyed a presumption of irreparable harm upon establishing a likelihood of success on the merits.5 The Third Circuit has even gone so far as to say, "once the likelihood of confusion caused by trademark infringement has been established, the inescapable conclusion is diat there was also irreparable injury."6 However, two recent Supreme Court cases, eBay, Inc. v. MercExchange, L.L.C.7 and Winter v. Natural Resources Defense Council, Inc.,s have called into question whether the presumption of irreparable harm is still valid in the trademark context.9 In eBay, the Supreme Court held invalid the Federal Circuit's "general rule" that plaintiffs in patent disputes are automatically entided to a permanent injunction once validity and infringement are determined.10 In doing so, the Court reaffirmed the requirement for courts to "apply the traditional four factor test for injunctive relief in every case."11 Similarly, in Winter, the Supreme Court overruled the Ninth Circuit's holding that, once a plaintiff has demonstrated a strong likelihood of success on the merits, "a preliminary injunction may be entered based only on a 'possibility' of irreparable harm."12 Like in eBay, the Court in Winter rejected the notion of a lower standard of irreparable harm; however, unlike in eBay, it did so in the preliminary injunction context. The Supreme Court's decisions in eBay and Winter have prompted courts to question the continuing validity of the presumption of irreparable harm in the trademark context.13 Accordingly, some courts have held that Supreme Court precedent has eviscerated the presumption of irreparable harm,14 while others have held that the presumption is alive and well.15 This split in authority has prompted some commentators to set forth arguments both for and against the presumption's survival. However, as of this writing, there has been limited scholarly analysis discussing the presumption's continuing vahdity in light of both eBay and Winter. Further, there has been no legal scholarship discussing, in-depth, Winter's impact on the trademark presumption. …