Adios to the Irreparable Harm Presumption in Trademark Law
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The article covers the presumption of irreparable harm, past and present, and explains the complications inherent in losing it, as well as discusses first the plaintiff's and then the defendant's point of view. The question is, has the presumption ship sailed? Written by Anne Gilson LaLonde, author of Gilson on Trademarks, along with her father, Jerome Gilson, the original author of the same text.
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Table of contents
II. The Rise and Fall of the Irreparable Harm Presumption in Trademark Law
A. Irreparable Harm Basics
B. Former Reliance on the Presumption
C. Why the Presumption Existed
D. eBay and Winter
E. The Current State of the Presumption
F. Should eBay and Winter Be Seen As Calling the Presumption Into Question in Trademark Law?
III. A Government of Laws, and Some Appallingly Heedless Courts
IV. Presumptions and Inferences
V. Plaintiff's Case for Preliminary Injunctive Relief — The Basics
1. Groundwork for Showing Reduction in Goodwill or Reputation
2. Reduction in Market Share, Sales or Customers
3. Inferior Quality of Defendant's Goods or Services or Customer Dissatisfaction
4. Parallels Between Current Case and One Finding Irreparable Harm
B. Impending Nature of Harm
C. Lack of Redress with Award of Money
D. Special Cases
3. Holdover Franchises
VI. Defendant's Case Against Preliminary Injunctive Relief — The Basics
A. Plaintiff's Injury is Speculative and Its Evidence is Cursory, Conclusory or Unsupported
B. Excessive Delay
C. Plaintiff's Injuries Could be Compensated by Damages
D. Competition Between the Parties is Too Indirect