The Presumption of Irreparable Harm After the Trademark Modernization Act Of 2020: The Good, the Bad and the Ugly

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.

The Good

Prior to the TMA's enactment, largely as a result of the eBay and Winter decisions, a significant debate emerged whether the holdings in these cases should apply to Lanham Act cases involving trademark infringement and unfair competition. Some courts ignored eBay and Winter altogether and found the presumption applicable. Other courts either hinted or expressly held that the presumption no longer applied and therefore required the plaintiff to provide affirmative evidence of irreparable harm to establish that factor.