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Ninth Circuit Raises the Bar for Obtaining Trademark Injunctions

SUMMARY. The Ninth Circuit’s recent decision in Herb Reed Enterprises, LLC v. Florida Entertainment Management Inc., __F.3d __, 2013 WL 6224288 (9th Cir. 2013), increases the burden on trademark plaintiffs seeking preliminary injunctions. The case is the first decision from a federal appeals court to hold clearly that the 2006 Supreme Court patent case eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), applies in trademark cases to eliminate the long-established rule that a plaintiff demonstrating a likelihood of trademark confusion is thereby entitled to a presumption that it will suffer irreparable harm. The case is also noteworthy for setting a high and arguably ambiguous standard for the amount and type of evidence necessary, in the absence of the jettisoned presumption, to establish irreparable harm.

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