preliminary injunction

Impact of Second Circuit’s Preliminary Injunction Standard After Salinger

Preliminary injunctions, though available in any type of case, are not uncommon in copyright and trademark cases.  For over thirty years, federal courts in the Second Circuit used a two-part test first announced in Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979), requiring a party in any case seeking a preliminary injunction to show: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.”  


Furthermore, in both copyright and trademark cases, the Second Circuit held that once likelihood of success was shown, there arose a presumption of irreparable harm.  Thus, as a practical matter, a trademark or copyright owner seeking a preliminary injunction had to focus on proving a strong likelihood of success on the merits.  Once proven, and absent unusual circumstances (most usually delay in seeking relief), entry of a preliminary injunction was almost routine.


In April 2010, in Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), a copyright case,  the Second Circuit held that the Jackson Dairy standard was effectively abrogated by the Supreme Court’s ruling in eBay, Inc. v. MercExchange, LLC,  547 U.S. 388 (2006), a patent case involving a permanent injunction. Salinger adopted a four-part test modeled after eBay.  


Furthermore, with respect to irreparable harm, the Second Circuit, again relying on eBay, rejected prior Circuit law that held that in copyright cases there is a presumption of irreparable harm upon a showing of likelihood of success.  See id. at 82.