Earlier this month, in two separate decisions, the Ninth Circuit joined the growing number of appellate courts in rejecting the long-standing presumption of irreparable harm in determining whether a preliminary injunction should issue in intellectual property cases. First, on August 3, 2011, the Court rejected the presumption for copyright cases in Perfect 10 v. Google. And on August 22, 2011, the Ninth Circuit followed up with an opinion rejecting the presumption of irreparable harm in trademark cases in Flexible Lifeline v. Precision Lift. These opinions likely will have a substantial impact on plaintiffs' ability to obtain preliminary injunctive relief in copyright and trademark cases, as irreparable harm must now be demonstrated and not merely presumed upon a showing of likelihood of success on the merits. This sea change in preliminary injunction standards has been developing for some time. In 2006, the Supreme Court, in eBay, Inc. v. MercExchange, L.L.C., held that irreparable harm could not be presumed when determining whether permanent injunctive relief should be granted in patent infringement cases. Since ebay was decided, appellate and district courts have struggled with the question of whether eBay's prohibition on the presumption of harm applies in copyright or trademark cases, in particular when the plaintiff is seeking preliminary relief. While many courts have continued to enter preliminary injunctions based on a finding that the plaintiff is likely to succeed on the merits followed by a presumption of irreparable harm, there has been a growing shift away from this approach. In Perfect 10 v. Google and Flexible Lifeline v. Precision Lift, the Ninth Circuit became the latest court to join this movement. Resolving a split among district courts within its Circuit, the Ninth Circuit found that eBay's rejection of the presumption of irreparable harm in patent cases applies equally to actions for copyright and trademark infringement and to requests for preliminary relief. In light of the decisions in Perfect 10 v. Google and Flexible Lifeline v. Precision Lift, a plaintiff seeking injunctive relief in the Ninth Circuit will have to do more than show a likelihood of success on the merits of its claims and will need to demonstrate through evidence the existence of irreparable harm from ongoing copyright and trademark infringement. – James Blackburn and Alan Veronick
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