Irreparable Harm No Longer Presumed in the Third Circuit for Lanham Act Plaintiffs

In a recent decision, the Court of Appeals for the Third Circuit eliminated the presumption of irreparable harm for Lanham Act plaintiffs seeking preliminary injunctive relief. In Ferring Pharms., Inc. v. Watson Pharms., Inc.,No.13-2290 (Aug. 26, 2014), the Third Circuit extended the Supreme Court's ruling in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 403 (2006), and Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), to claims brought under the Lanham Act. Under the Third Circuit's decision, a plaintiff in a trademark infringement or false advertising lawsuit seeking a preliminary injunction in the Third Circuit now needs to prove that irreparable harm is "likely" to occur. Such harm is no longer presumed from a mere showing of likelihood of success on the merits. Instead, a plaintiff needs to present compelling evidence that its brands, products or services will likely be harmed should an injunction not issue.