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The Presumption of Irreparable Harm After the Trademark Modernization Act Of 2020: The Good, the Bad and the Ugly
On Dec. 27, 2020, the Trademark Modernization Act of 2020 (TMA) became law. A key component of that legislation was the codification in Section 34(a) of the Lanham Act of the common-law principle that a trademark owner seeking injunctive relief in actions for trademark infringement and unfair competition under Sections 32 and 43 of the Lanham Act is entitled to a rebuttable presumption of irreparable harm. The presumption arises upon the movant demonstrating liability at the proof stage, or a showing of a likelihood of liability in the context of motions for expedited relief seeking a temporary restraining order or a preliminary injunction.
By enacting legislation confirming the existence of the presumption of irreparable harm in cases of trademark infringement and unfair competition, many commentators predicted that litigants would be dissuaded from the forum shopping in which many engaged after the existence of the presumption was called into question following the U.S. Supreme Court decisions in eBay, Inc. v. MercExchange, 547 U.S. 388 (2006), and Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Unfortunately, even with the TMA's confirmation of the presumption's existence, the probability that litigants will continue forum shopping remains high because of Congress's failure to provide additional guidance relating to application of the presumption. This article explores developments (both positive and negative) in the post-TMA world in which courts have wrestled with implementation of the presumption of irreparable harm in trademark cases.
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Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
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Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Coverage Issues Stemming from Dry Cleaner Contamination Suits
In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.