Law Commons^™

Press Play To Presume: The Policy Benefits Behind The Trademark Modernization Act's Resurrection Of The Irreparable Harm Presumption In False Advertising Cases, Daniel Stephen

William & Mary Law Review

Part I of this Note provides background information on the history and principles surrounding injunctions generally, the Supreme Court’s rulings in eBay and Winter, federal courts’ rulings after these decisions, and the Trademark Modernization Act of 2020. Part II presents anti-presumption advocates’ arguments against the presumption due to longstanding equitable concerns and because, in their view, requiring a showing of irreparable harm is not too difficult. Lastly, Part III discusses why the irreparable harm presumption in the TMA serves as beneficial policy by presenting counterarguments to anti-presumption reasoning and additional benefits of the presumption.

This abstract has been taken …

Discovering Ebay's Impact On Copyright Injunctions Through Empirical Evidence, Matthew Sag, Pamela Samuelson

William & Mary Law Review

This Article reports on new empirical evidence discrediting the widely held view that judges have resisted applying the Supreme Court’s teachings in eBay Inc. v. MercExchange, L.L.C. about injunctive relief in copyright cases. That 2006 patent law decision ruled that courts should not automatically issue injunctions upon a finding of infringement; instead, plaintiffs must prove their entitlement to injunctive relief. eBay had a seismic impact on patent litigation and greatly reduced the threat that small infringements could be leveraged into billion-dollar settlements. Yet prior empirical work, at least one major copyright law treatise, and many articles assert that eBay had …

Withholding Injunctions In Copyright Cases: Impacts Of Ebay, Pamela Samuelson

William & Mary Law Review

Before the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C., which ruled that courts should exercise equitable discretion when considering whether to issue permanent injunctions in patent infringement cases, courts routinely granted injunctions in copyright cases when plaintiffs proved that defendants had infringed or had likely infringed copyrights. Such findings triggered presumptions of irreparable harm, which were almost never rebutted. Only rarely would courts consider a balancing of hardships or effects of injunctions on public interests.

In the first several years after eBay, commentators reported that eBay had had little impact on the availability of injunctive …

Tailoring Remedies To Spur Innovation, Sarah R. Wasserman Rajec

Faculty Publications

An emerging rule in the district courts—thus far endorsed by the United States Court of Appeals for the Federal Circuit—allows a victorious patent holder to receive a permanent injunction against an infringer if she is able to show that she has suffered a loss of market share due to the infringement. The larger the loss of market share the patent holder can prove, the more likely the court will issue an injunction. This “market share rule” is a response to the Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C., exhorting lower courts to engage in equitable balancing before awarding …

Patently Protectionist? An Empirical Analysis Of Patent Cases At The International Trade Commission, Colleen V. Chien

William & Mary Law Review

The International Trade Commission (ITC) provides a special forum for adjudicating patent disputes involving imports. It offers several advantages over United States district courts to patentees, including relaxed jurisdictional requirements, speed, and unique remedies. Unlike district courts, the ITC almost automatically grants injunctive relief to prevailing patentees, and does not recognize certain defenses to infringement. These features have been justified as needed to prosecute foreign infringers who would otherwise evade U.S. district courts. They have also led to charges that the ITC is protectionist and unfair to defendants and that it fosters inconsistency in U.S. patent law. Based on an …