Trademark Injunction Toolkit: Evidence Declarations, Proposed Orders, and Delay Chronologies

Motions for trademark injunctions tend to be drafted at 11 p.m. by people copying the last one. These are the working papers we would want on the shared drive before the call comes in. Each is short enough to adapt quickly, and each flags the reported decision that explains why the language is there.

How to use this toolkit

Copy what you need and replace every [bracketed placeholder]. Each paper opens with its purpose, who owns it, and when it is due, and closes with drafting notes tied to authority. Papers 1 through 6 mostly serve the movant, papers 7 through 11 mostly serve the opponent, and the rest serve both. Check local rules, standing orders, and your circuit's law before filing anything, and have a lawyer admitted in the forum review it. The reasoning behind these forms appears in Trademark Preliminary Injunctions After the Trademark Modernization Act: The Presumption of Irreparable Harm and the Delay Trap, the process in Winning or Opposing a Trademark Preliminary Injunction: A Practical Guide, and a printable list in Trademark Preliminary Injunction Checklist: A Practical Checklist.

Contents

1. Clock memo and delay chronology
2. Brand executive declaration
3. Harm and customer-impact declaration
4. Test purchase declaration
5. Web capture declaration
6. Attorney certificate for a TRO without notice
7. Survey decision memo
8. Rebuttal evidence matrix
9. Buying-process and no-confusion declaration
10. Injunction cost declaration
11. Opposition outline
12. Bond calculator
13. Proposed preliminary injunction order
14. Schedule of identifiers
15. Alternative narrow order rider
16. Proposed findings skeleton
17. Standstill and tolling letter
18. Cross-examination outline on delay
19. Compliance report

Paper 1: Clock memo and delay chronology

Purpose: Fix the facts on when the company knew what, and why each gap exists. Owner: General counsel or the lead associate, with one designated business contact. Timing: Start the day of first report. Update it daily until filing. A cleaned-up version becomes an exhibit.

Part A, privileged working memo (not for filing)

PRIVILEGED AND CONFIDENTIAL. PREPARED AT DIRECTION OF COUNSEL

Matter: [Plaintiff] / [Accused mark]
Prepared by: [name]     Date opened: [date]

1. Earliest known awareness at the company, by anyone: [date, person, how]
2. Earliest awareness by anyone with enforcement responsibility: [date, person]
3. Earliest awareness by predecessor, parent, affiliate, licensee, or agency: [date, source]
4. Public signals before those dates: USPTO filing [date]; press [date];
   website or social use [date]; trade show [date]; watch notice [date]
5. Has anyone written anything suggesting the use was unimportant? [yes/no; doc]
6. Has anyone proposed money, a license, or a sale? [yes/no; date; doc]
7. Has the scope of use changed? [date; what changed: channel, geography, goods, scale]
8. Witness who can swear to items 1, 2, 7: [name]

Part B, chronology for filing (movant's version)

Drafting notes

• Delay runs from actual and constructive knowledge. Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985) counted both a direct answer and a newspaper notice.
• A transfer of rights doesn't restart the clock under Moon Dot, Inc. v. Q Shack Corp., No. 3:25-cv-00396 (W.D.N.C. Aug. 21, 2025), which is why item 3 is there.
• Item 7 supports an escalation argument. See Tillamook Country Smoker, Inc. v. Tillamook County Creamery Ass'n, 465 F.3d 1102 (9th Cir. 2006), which rejected it on its facts, and the unpublished OpenAI, Inc. v. Open Artificial Intelligence, Inc., No. 24-1963 (9th Cir. Nov. 13, 2024), which accepted it.
• The right-hand column is the one courts care about. Gilead Sciences, Inc. v. Santulli, No. 25-1850 (4th Cir. Aug. 13, 2026, amended Aug. 18, 2026) accepted a ten-month gap because the steps within it made sense. Tough Traveler, Ltd. v. Outbound Products, 60 F.3d 964 (2d Cir. 1995) found a gap of more than a year, with no investigation to explain it, to be a "leisurely pace."
• Item 6 is there because of Total90, LLC v. Nike, Inc., No. 2:25-cv-02325 (E.D. La. June 22, 2026).
• Keep Part A out of the record. If a lawyer's own first knowledge is the critical date, think about privilege and witness issues before you use it, and consider Rule 502(d).

Paper 2: Brand executive declaration

Purpose: Establish rights, strength, and quality control. Owner: Marketing or brand lead, drafted by counsel. Timing: Final draft 5 days before filing.

DECLARATION OF [NAME] IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

I, [Name], declare:

1. I am [title] of [Plaintiff]. I have held this position since [date]. I make
   this declaration from personal knowledge and from business records that
   [Plaintiff] keeps in the ordinary course and that I reviewed.

2. [Plaintiff] has used the mark [MARK] since [date] for [goods/services]. It owns
   U.S. Reg. No. [number], issued [date], a copy of which is Exhibit [A]. The USPTO
   status record, printed [date], is Exhibit [B].

3. Sales of [goods] under the mark in the United States were:
   [year] $[amount]; [year] $[amount]; [year] $[amount]. (Exhibit [C].)

4. Advertising and promotion under the mark were:
   [year] $[amount]; [year] $[amount]; [year] $[amount]. We advertise through
   [channels]. Representative examples are Exhibit [D].

5. We sell through [channels], to [customer types]. A typical purchase costs
   $[amount] and takes about [time and steps].

6. We control the quality of goods sold under the mark by [specific steps: supplier
   approval, lot testing, complaint review]. [Accused Goods] are not subject to any
   of those controls, and we have no ability to inspect or correct them.

7. [Plaintiff] has not authorized [Defendant] to use the mark. [If there was ever a
   license or relationship, describe it and its end date here.]

I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.

Executed on [date] at [city, state].                  [Name]

Drafting notes

• Use 28 U.S.C. § 1746 wording exactly. It is meant to spare you notarizing at midnight.
• Registration's effect comes from 15 U.S.C. § 1057(b) and § 1115; see SoClean, Inc. v. Sunset Healthcare Solutions, Inc., 52 F.4th 1363 (Fed. Cir. 2022) on the shift of burden. For unregistered marks, add first-use and secondary-meaning facts dated before the defendant's first use, as discussed in the OpenAI dissent.
• Paragraph 6 is doing double duty. It speaks to loss of control, which Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc., 736 F.3d 1239 (9th Cir. 2013) recognizes can be irreparable if shown by evidence.
• Evidence admissible at trial and received on the motion stays in the record under Fed. R. Civ. P. 65(a)(2). Don't sign round numbers you would not defend at trial.

Paper 3: Harm and customer-impact declaration

Purpose: Prove irreparable harm independently of the presumption. Owner: Whoever handles customers or dealers directly, not the CEO unless the CEO truly knows. Timing: Filed with the opening papers.

1. I am [title]. I oversee [customer service / dealer relations]. I make this
   declaration from personal knowledge and from records I reviewed, including [logs].

2. Since [date], we have received [number] contacts referring to [Accused Mark] or
   [Accused Goods]. Exhibit [A] lists each by date, channel, and substance, and
   Exhibit [B] contains the underlying messages.

3. [Confusion.] [N] of those contacts assumed that the [Accused Goods] came from
   us. For example, on [date], [customer type] wrote: "[quote]."

4. [Blame.] [N] complained about the quality of [Accused Goods] believing them to be
   ours. For example, on [date], [quote]. We responded by [steps taken].

5. [Relationship.] On [date], [retailer/dealer] told me [what], and it has since
   [reduced an order / asked for assurances / delisted], as shown in Exhibit [C].

6. [Why money does not fix it.] We cannot identify the customers who bought [Accused
   Goods], had a bad experience, and did not contact us. We have no way to reach them
   to correct the impression. [Reason specific to this market, e.g., repeat purchase
   rate; safety; seasonal shelf commitments made on [date].]

7. [Imminence.] [Upcoming event: selling season, catalog close, shelf reset] takes
   place on [date]. After that date, [specific consequence].

Drafting notes

• Keep confusion (paragraph 3) and harm (paragraphs 4 to 6) separate. Herb Reed said a customer's email "simply underscores customer confusion, not irreparable harm."
• The presumption in 15 U.S.C. § 1116(a) can burst on a slight showing under Nichino America, Inc. v. Valent U.S.A. LLC, 44 F.4th 180 (3d Cir. 2022). This declaration is what's left when it does.
• Confused customers' statements generally aren't hearsay when offered to show their state of mind. See Fun-Damental Too, Ltd. v. Gemmy Industries Corp., 111 F.3d 993 (2d Cir. 1997) and Fed. R. Evid. 803(3). At this stage, courts may in any case consider hearsay, per Levi Strauss & Co. v. Sunrise International Trading Inc., 51 F.3d 982 (11th Cir. 1995).
• Paragraph 5 is the kind of proof that mattered in InSinkErator, LLC v. Joneca Co., No. 25-286 (9th Cir. Dec. 29, 2025), where evidence about lost shelf space and private-label bids made an error on the presumption harmless.
• If paragraph 7 is your urgency theory, make sure the calendar supports it. In Total90, the coming World Cup didn't cure nearly a year of waiting.
• If you have no blame or relationship evidence, say less, and do not fill the space with adjectives.

Paper 4: Test purchase declaration

Purpose: Prove sale, source, and forum contact. Owner: Investigator. Timing: Purchase within days of first report.

1. I am [role] employed by [firm]. On [date] at [time zone], at the request of
   [counsel], I visited [URL] from [city, state].

2. The page displayed [mark] and offered [product] for $[price]. Listing identifier:
   [ID]. Seller name displayed: [name]. Exhibit [A] is a capture I made at that time
   as described in the [Name] Web Capture Declaration.

3. I placed an order using [payment method], for delivery to [address, city, state].
   The payment descriptor on my statement reads [text]. (Exhibit [B], redacted.)

4. The order arrived on [date] from [return address], by [carrier], tracking [number].
   I photographed the package unopened (Exhibit [C]), opened it, photographed its
   contents (Exhibit [D]), sealed them in a bag labeled [ID], and delivered it to
   [person] on [date]. (Chain-of-custody log: Exhibit [E].)

5. On [date], I examined [business filings / WHOIS / marketplace seller profile],
   which show [link between seller and Defendant]. (Exhibit [F].)

Drafting notes

• A single investigator purchase supported specific jurisdiction in NBA Properties, Inc. v. HANWJH, 46 F.4th 614 (7th Cir. 2022), but paragraph 5 should still link the sale to the party you've named. Other circuits may differ.
• Paragraph 3 matters because the money trail often identifies the real operator, and Dewberry Group, Inc. v. Dewberry Engineers Inc., 604 U.S. 321 (2025) means you should sue the entity holding the profits. For more forms, see Online Trademark Enforcement Toolkit: Platform Notices, Test Purchase Records, and Contributory Liability Demands.
• Do not have an investigator misrepresent anything beyond what an ordinary buyer would say. Ethics rules on pretexting vary, and it is worth a quick check.

Paper 5: Web capture declaration

Purpose: Authenticate online evidence in a way that survives a technical challenge. Owner: Paralegal, investigator, or IT person who actually did it. Timing: Same day as the capture, then each recapture.

1. I am [title]. On [date and time, with time zone], I captured [URL] using [tool and
   version] on [device and operating system], over [network; note VPN if any].

2. I saved (a) a full-page image; (b) the page source; (c) a [WARC/HAR] archive of the
   responses my browser received. The files are named [names]. Their SHA-256 hashes
   are [values].

3. The captures include the following non-visible content: title tag "[text]"; meta
   description "[text]"; image alt text "[text]"; structured data brand field "[text]."

4. I also ran a search on [engine or marketplace] for "[query]" while [logged out / in
   a clean profile] from [location] on [device]. Exhibit [A] shows what was displayed.
   I understand results may vary with the user, device, and time.

5. Exhibits [A] to [C] are true copies of those files or fair printouts of them.

Drafting notes

• Fed. R. Evid. 901 is the base requirement, and Rule 902 has certification routes for electronic records that may help at trial.
• A hash is a short fingerprint computed from a file's bytes. If one byte changes, the hash changes, so paragraph 2 lets a court know the exhibit is what was captured.
• Paragraph 3 supports order language reaching machine-readable use. Paragraph 4 is candid about personalization, which keeps your credibility if the defendant gets a different result.
• If keyword advertising is your theory, read Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011), which turned in part on how the ads and results page actually looked. Capture the whole results page, labels included.

Paper 6: Attorney certificate for a TRO without notice

Purpose: Satisfy Rule 65(b)(1)(B). Owner: Lead counsel, personally. Timing: With the application.

I, [Name], counsel for [Plaintiff], certify under Fed. R. Civ. P. 65(b)(1)(B):

1. Efforts to give notice: [Describe each: phone, email, registered agent, seller
   portal, with dates and times. If none: "No notice has been given, for the reasons
   below."]

2. Why notice should not be required: Notice would likely render further prosecution
   fruitless because [specific facts]:
   (a) [Defendant] has previously [moved goods / changed seller identity / ignored
   orders] on [dates], as shown in [Decl. ¶].
   (b) Persons similar to [Defendant] have done so: [specific prior matters], as shown
   in [Decl. ¶].
   (c) [Defendant]'s operation has these features: [no fixed address; relisting in N
   days; offshore payment accounts]. See [Decl. ¶].

3. Immediate and irreparable injury before a hearing: [facts in the verified complaint
   or declaration, cited by paragraph].

I understand my duty of candor to the Court in an ex parte proceeding and have
disclosed the material facts known to me that may be adverse to this application,
including: [date of first knowledge; prior correspondence; any contrary facts].

Drafting notes

• Paragraph 2 tracks Reno Air Racing Association, Inc. v. McCord, 452 F.3d 1126 (9th Cir. 2006), which borrowed its test from First Technology Safety Systems, Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993). A movant must do more than assert that a defendant would dispose of evidence. Compare In re Vuitton et Fils S.A., 606 F.2d 1 (2d Cir. 1979).
• Ex parte candor is a real duty under the professional conduct rules (ABA Model Rule 3.3(d) and state analogues), and a judge who later learns of an omitted fact tends to remember it. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423 (1974) explains why courts are wary in the first place.
• For counterfeit seizures, use 15 U.S.C. § 1116(d) and its separate findings. See Counterfeiting, Seizure Orders, and Schedule A Litigation: Fighting Fakes in Federal Court.

Paper 7: Survey decision memo

Purpose: Force a decision in the first week, with reasons that can be defended later. Owner: Lead counsel, with client sign-off. Timing: Day 3 to 7.

Decision: [Full survey / Pilot only / None]
Format: [Eveready / Squirt / Other]. Universe: [describe]. Control: [describe].
Expert: [name]; consulting or testifying: [ ]. Field dates: [ ] to [ ].
Effect on filing date: [none; supplement by ___ / filing moves to ___, because ___ ].
Decided by: [name]; date: [ ].

Drafting notes

• Weight Watchers International, Inc. v. Luigino's, Inc., 423 F.3d 137 (2d Cir. 2005) tolerated a gap partly filled by consumer testing but criticized the plaintiff's pace. That's why the memo records the effect on the filing date.
• Consulting expert protection comes from Rule 26(b)(4)(D), with exceptions. Assume anything shown to a testifying expert is discoverable.
• Rule 702 applies. For weight versus admissibility see Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Management, Inc., 618 F.3d 1025 (9th Cir. 2010).
• For methodology, use Consumer Survey Expert Methodology in Trademark Cases: A Practical Guide and Trademark Consumer Survey Design: A Practical Checklist. A separate form set for distinctiveness surveys is in Distinctiveness Toolkit: Secondary Meaning Declarations, Genericness Surveys, and Brand Usage Guidelines.

Paper 8: Rebuttal evidence matrix

Purpose: Convert the defendant's facts into a rebuttal section, and let the movant anticipate it. Owner: Opposition lead; the movant's lead should fill it out too. Timing: Within 48 hours of service, or before filing for the movant.

Drafting notes

• Under Nichino, the burden is one of production, and the court shouldn't over-scrutinize the evidence. Say so. Also say that lack of plaintiff's evidence doesn't count, so you aren't relying on it.
• Courts apply the statute unevenly, so offer the evidence as if the court will weigh it. Check whether your circuit has spoken beyond the Third.
• Unlike laches, delay doesn't need prejudice. Gilead footnote 19.

Paper 9: Buying-process and no-confusion declaration

Purpose: Supply affirmative evidence for rebuttal and merits. Owner: Sales or customer support lead at the defendant. Timing: With the opposition.

1. I am [title] of [Defendant] and am responsible for [function]. I make this
   declaration from personal knowledge and from records I reviewed.

2. How customers buy. [Product] costs $[amount]. A typical customer is [describe]. A
   typical purchase involves these steps: [list]. It takes about [time]. Our name
   appears at [each step]. Buyers usually consult [advisers/specs/reviews].

3. Consequence of a wrong choice. If a buyer chose the wrong product, [what happens].

4. Searches for confusion. On [date], I searched [systems] for the terms [list],
   covering [dates]. I found [number] references to [Plaintiff]. [Describe each.] I
   also asked [names] whether they had heard of confusion, and [their answers, if not
   barred by your local practice; or have each sign a declaration].

5. Coexistence. We have sold [product] since [date], with these sales: [by year], in
   [channels and geographies]. Plaintiff's products have appeared alongside ours at
   [where] since [date].

6. Current status. [If you've stopped: We stopped selling on [date]. Here is what we
   did to make sure it stays stopped: [controls]. We will agree to an order saying so.]

Drafting notes

• This is the kind of sworn showing Nichino accepted. There the buyers were farmers staking a season on the purchase.
• Paragraph 4 discloses the search method because an unexplained "no confusion" is close to worthless and affirmative evidence must be real. Nichino faulted reliance on the plaintiff's lack of evidence, so build your own.
• Paragraph 6 is drafted to avoid the waiver in AK Futures, where a claim of cessation wasn't tied to irreparable harm below, and where the panel doubted a stop that lacked reliable controls.

Paper 10: Injunction cost declaration

Purpose: Support the hardship argument and the bond request. Owner: CFO, controller, or owner. Timing: With the opposition. Earlier if the movant asks for a TRO.

1. I am [title] of [Defendant]. I am responsible for [financial records], and I make
   this declaration from them and from personal knowledge.

2. If the requested order takes effect on [date] and lasts [N] months, I expect these
   costs:

   a. Lost sales: [units/month] x $[margin/unit] x [N] = $[amount]. Basis: [Exhibit A,
      trailing sales or signed purchase orders].
   b. Inventory: [units] at $[cost] cannot be sold or relabeled. Relabeling is possible
      for [units] at $[cost]. Total $[amount]. (Exhibit B, invoices.)
   c. Rebranding: packaging $[ ], website $[ ], listings lost with reviews $[ ],
      advertising $[ ], regulatory or label approval $[ ]. (Exhibit C.)
   d. Contracts: [customer] order $[ ] due [date]; penalty or cancellation terms:
      [ ]. (Exhibit D.)
   e. Other: [financing covenants, lost season, layoffs].

3. Effect on the business beyond money: [loss of accounts; loss of ranking and review
   history that can't be rebuilt; market position].

4. A shorter period or a sell-off through [date] would reduce the above to $[amount].

Drafting notes

• Use it for two arguments. Under Nichino footnote 14, millions in lost sales during a reapplication counted against an injunction. Whirlpool goes the other way, treating pecuniary harm as "presumptively reparable," and that's why paragraph 3 exists.
• Mead Johnson & Co. v. Abbott Laboratories, 201 F.3d 883 (7th Cir. 2000), amended on denial of rehearing, 209 F.3d 1032, shows a court discounting soft numbers, and then an appeals court saying the bond should reflect the full consequences. So give hard numbers where you can, and estimates where you must.
• Marketplace review history is a real asset tied to a listing ID. If a rename forces a new listing, say what is lost. Have someone confirm the platform's actual rule before swearing to it.

Paper 11: Opposition outline

Purpose: Keep each argument under the heading that preserves it. Owner: Lead counsel. Timing: Fill in at intake.

INTRODUCTION: Why this motion isn't urgent, in three sentences with dates.

FACTS: Who we are; how we chose the name; how customers buy; when plaintiff knew;
what it did; what the order would cost.

ARGUMENT
I.   Standard: Winter; clear showing; burdens track trial (O Centro).
II.  No likelihood of success, so no presumption (15 U.S.C. § 1116(a)).
     A. Rights: [validity, priority, secondary meaning date].
     B. Confusion factors: [local test; strongest first].
     C. Defenses: [fair use, laches, other]. Who bears each burden.
III. No irreparable harm.
     A. Any presumption is rebutted.
        1. Burden is one of production (Fed. R. Evid. 301; Nichino).
        2. Our evidence: [delay; money demands; buyers; coexistence; cessation].
     B. With the presumption gone, plaintiff has no evidence (Herb Reed).
     C. Alternatively, delay independently defeats urgency (Citibank; Benisek).
     D. [If "serious questions" applies: the statutory trigger is not met.]
IV.  Balance of hardships: [costs; status quo; self-inflicted harm answer].
V.   Public interest: [competition; product access; no confusion].
VI.  Security: Rule 65(c). Amount $[ ], per [Decl.]. Request bond hearing.
VII. Scope: Any order must be limited (Rule 65(d); Abitron; alternative order attached).

CONCLUSION and request for stay pending appeal if granted, to preserve Rule 62/FRAP 8.

Drafting notes

• Parts I and III.C rest on Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), Starbucks Corp. v. McKinney, 602 U.S. 339 (2024), and Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).
• Part II.C: a fair use defendant needn't disprove confusion under KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004). If you use the mark as your own brand, Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023) and Vans, Inc. v. MSCHF Product Studio, Inc., 88 F.4th 125 (2d Cir. 2023) close off the Rogers shortcut.
• Part VI matters even if you expect to win, since Vans found no error in omitting security when none was requested.
• A request for a stay in the alternative prepares the way under Rule 62(d) and FRAP 8.

Paper 12: Bond calculator

Purpose: Produce a number each side can defend. Owner: Finance, with counsel. Timing: Movant before filing. Opponent with the opposition.

Sample calculation. Assume a hypothetical seller with 2,000 units a month at $6 of margin, an expected duration of 8 months with a holiday peak (adding 3,000 units), and 12,000 unsalable labeled units at $1.50. New labels cost $0.25 on 4,000 units. Rebranding costs $30,000. There's a $15,000 order at risk with $5,000 margin. It expects to retain 40 percent of sales under a new name.

• B: 2,000 x $6 x 8 = $96,000
• C: 3,000 x $6 = $18,000
• D: 12,000 x $1.50 = $18,000
• E: 4,000 x $0.25 = $1,000
• F: $30,000
• G: $5,000
• I: 40 percent of (B + C) = $45,600
• Total: $122,400

Drafting notes

• Rule 65(c) requires security "in an amount that the court considers proper." The standards differ. See Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999) (mandatory, tied to the gravity of potential harm, may be nominal), Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003), and Doctor's Associates, Inc. v. Stuart, 85 F.3d 975 (2d Cir. 1996).
• Recovery usually stops at the bond, so the defendant should not undersell. Mead Johnson says courts should err on the high side. The plaintiff, for its part, faces real exposure under Nintendo of America, Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032 (9th Cir. 1994), which presumes recovery up to the amount of the bond.
• The numbers in the sample are invented for illustration. Whether fees are recoverable from a bond varies; line J is a prompt to check.
• A surety will charge a premium and may require collateral. Rule 65.1 covers enforcement against the surety.

Paper 13: Proposed preliminary injunction order

Purpose: Give the court an order it can sign and that will hold up on appeal. Owner: Movant's lead counsel. Timing: File with the motion; revise after the hearing.

[CAPTION]

ORDER GRANTING PRELIMINARY INJUNCTION

Having considered the motion, the evidence, and the arguments, and for the reasons
stated in the Findings of Fact and Conclusions of Law entered today, the Court ORDERS:

1. Prohibited acts. Pending final judgment, Defendant [name] shall not use [MARK],
   [listed variants], or any other name or mark confusingly similar to [MARK], in
   connection with the advertising, offering for sale, sale, or distribution of
   [goods] to customers in the United States.

2. Particular uses. Paragraph 1 includes use (a) on goods and packaging; (b) in
   listings identified in Schedule 1 and any new listing for such goods; (c) in visible
   text, page titles, metadata, and structured data on websites and accounts that
   Defendant controls; and (d) in advertising text.

3. Removal. Within [5] business days after this Order takes effect, Defendant shall
   remove or disable the uses in Schedule 1 and shall submit reasonable requests to
   third parties to remove copies Defendant placed with them. Defendant is not in
   violation because of third-party copies it does not control, if it made those
   requests.

4. Transition. Defendant may sell its existing inventory of [number] units until
   [date], if each unit bears [sticker/statement]. [Delete if none.]

5. Permitted uses. Nothing in this Order prohibits [truthful comparative reference;
   descriptive use of the word "[word]" in its ordinary meaning; compliance with legal
   records]. [Tailor.]

6. Revenues. Defendant shall hold in a segregated account [net/gross] revenue from
   sales under the prohibited names after [date] pending further order. [Delete if
   none.]

7. Compliance report. Within 30 days after service of this Order, Defendant shall file
   and serve a written report under oath setting forth in detail the manner and form
   of its compliance. 15 U.S.C. § 1116(a).

8. Persons bound. This Order binds Defendant; its officers, agents, servants,
   employees, and attorneys; and other persons in active concert or participation with
   any of them, who receive actual notice of this Order by personal service or
   otherwise. Fed. R. Civ. P. 65(d)(2).

9. Security. This Order takes effect when Plaintiff posts security of $[amount] with
   the Clerk. Fed. R. Civ. P. 65(c).

10. Duration and modification. This Order remains in effect until final judgment or
    further order. Any party may move to modify it on [N] days' notice.

SO ORDERED. Dated: [date and time]                 [Judge]

Drafting notes

• Paragraph 1 lists what's prohibited without reference to the complaint, as Rule 65(d)(1) requires. Overbroad or vague orders endanger contempt enforcement, as in Reno Air. See Contempt and Enforcing Injunctions: Civil, Criminal, and What an Order Actually Compels.
• "To customers in the United States" follows Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023) and Hetronic International, Inc. v. Hetronic Germany GmbH, 99 F.4th 1150 (10th Cir. 2024). Consider adding commercially reasonable steps, like shipping blocks and geolocation, for a global site. Those measures are imperfect, and Protecting a Trademark Abroad: The Madrid Protocol, Territoriality, and Abitron v. Hetronic is where to turn for foreign rights. For a website term tied to U.S. IP addresses with a disclaimer option, see the order affirmed in dmarcian, Inc. v. DMARC Advisor BV, No. 25-1084 (4th Cir. July 10, 2026).
• Paragraph 3 is mandatory relief, which draws closer attention under Trial Lawyers College v. Gerry Spence's Trial Lawyers College, 23 F.4th 1262 (10th Cir. 2022). Tie it to stopping the current use.
• Paragraph 6 draws support from Vans and Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014), but only if an accounting has been pleaded under 15 U.S.C. § 1117(a). Otherwise Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) is a problem. A third-party bank raises separate jurisdictional issues under Gucci.
• Paragraph 8 tracks Rule 65(d)(2). Trump v. CASA, Inc., 606 U.S. 831 (2025) is one more reason not to name the world.
• A TRO needs more: under Rule 65(b)(2), one issued without notice must state the date and hour, describe the injury, say why it's irreparable, say why it issued without notice, and state an expiration within 14 days.

Paper 14: Schedule of identifiers

Purpose: Make paragraph 2 of the order executable by someone who runs websites. Owner: Investigator plus a technical person. Timing: Refresh on the eve of the hearing.

Drafting notes

• A brand name is rarely how systems identify things. Platforms act on IDs, so an order or a platform notice that names them is far easier to carry out and to verify.
• A separate schedule keeps the order readable, but Rule 65(d)(1) forbids describing acts by reference to "the complaint or other document." So attach it to the order itself.
• Don't name a domain for transfer unless the theory supports that remedy. In OpenAI, the Ninth Circuit noted the defendants could ask the district court about noninfringing use of a domain. For domain-specific remedies, see Lookalike Domain Toolkit: Abuse Reports, Registrar Demands, and UDRP and URS Outlines.
• Keyword purchases are separate from ad text. Think about whether you can defend a keyword ban after Network Automation.

Paper 15: Alternative narrow order rider

Purpose: Give a judge inclined to grant relief a less damaging way to do it. Owner: Opposition lead. Timing: Filed with the opposition, expressly without waiver.

Defendant opposes any injunction. Without waiver, if the Court finds relief warranted,
Defendant proposes the following in place of Plaintiff's proposed order:

A. For goods shipped after [date 30 to 90 days out], Defendant will [use the house mark
   [NAME] in at least equal prominence / add the statement "[statement]" / adopt a
   new name for [product line only]].

B. Defendant may sell inventory on hand as of the Order's date through [date]. It
   will serve an inventory count within [7] days.

C. The Order applies only to [goods] in [channels / geography], where the Court found
   confusion likely.

D. Defendant may make [listed lawful uses].

E. Security of $[amount], per the [Name] Declaration, with a right to seek an increase.

F. The parties shall meet and confer on an expedited schedule under Fed. R. Civ. P.
   65(a)(2) or 16(b), with trial or summary judgment to be heard by [date].

Drafting notes

• Disclaimers have a burden attached. Weight Watchers held that the party offering a disclaimer must show it actually fixes the confusion. If you offer item A's statement, support it, perhaps with a small test.
• A narrow order is more likely to survive and more likely to be accepted. SoClean specifically noted narrowness.
• On geographic limits, compare Dawn Donut Co. v. Hart's Food Stores, Inc., 267 F.2d 358 (2d Cir. 1959) with Guthrie Healthcare System v. ContextMedia, Inc., 826 F.3d 27 (2d Cir. 2016), a post-trial case in which the injunction was held too narrow.
• If the name will have to go anyway, begin planning with Rebranding Without Regret: Clearance, Transition, and Protecting the Old Mark While Launching the New One.

Paper 16: Proposed findings skeleton

Purpose: Satisfy Rule 52(a)(2), and hold up on review. Owner: Whoever expects to win, which means both sides should prepare one. Timing: Filed before or just after the hearing as the court directs.

FINDINGS OF FACT
A. The parties and the mark. [Each fact with record citation.]
B. Defendant's use and how it came about.
C. Chronology: first knowledge; steps taken; filing. [Paragraph by paragraph.]
D. Evidence of confusion.
E. Evidence of harm: [loss of control; complaints; relationships; why not compensable].
F. Defendant's rebuttal evidence and the Court's assessment.
G. Hardship: costs of injunction; costs of no injunction.

CONCLUSIONS OF LAW
1. Jurisdiction: 15 U.S.C. § 1121; 28 U.S.C. § 1338. Personal jurisdiction: [basis].
2. Standard: Winter; Starbucks.
3. Likelihood of success: [validity; each factor; defenses].
4. Irreparable harm:
   a. The presumption applies. 15 U.S.C. § 1116(a).
   b. [Defendant's evidence does/does not rebut it.]
   c. Independently of the presumption, the record shows [harm].
   d. Plaintiff's timing does not undercut urgency, because [finding].
5. Balance of hardships.
6. Public interest.
7. Security under Rule 65(c), and why this amount.
8. Scope: [why each term is needed].

Drafting notes

• UATP IP, LLC v. Kangaroo, LLC, No. 22-2047 (Fed. Cir. Feb. 16, 2024) vacated for inadequate findings and for ignoring a ten-month delay after the complaint, so make your proposed findings address both.
• Rule 52(a)(2) requires findings. Part 4(c) follows the belt-and-suspenders path in Gilead, where the district court found the presumption unrebutted and harm shown even without it.
• Herb Reed reversed where no factual findings supported harm. Tough Traveler vacated because the court adopted a presumption without discussing timing. Part C and 4(d) address that gap.
• University of Texas v. Camenisch, 451 U.S. 390 (1981) says these findings don't bind the court at trial. Still, write them as if a panel will read them next month.
• If you're the opponent, your version of Part 4(b) applies Nichino: production burden met, presumption gone, no independent evidence.

Paper 17: Standstill and tolling letter

Purpose: Let serious talks happen without feeding a delay defense. Owner: Lead counsel on each side. Timing: Before talks start, and with a short fuse.

Re: [Plaintiff] / [Defendant]: Standstill

This confirms our agreement:

1. Term. From [date] until [date no more than 21 days out] (the "Period"), unless
   either party ends it earlier on 2 business days' written notice.

2. Standstill. During the Period, [Defendant] will not [expand use of the name to new
   channels or goods; launch [campaign]; increase inventory above [level]].

3. No filing. During the Period, neither party will file suit against the other about
   [marks], including for a declaratory judgment.

4. Timing. [Defendant] agrees the Period will not count in any argument about laches,
   delay, or lack of urgency, and will not cite these talks for that purpose. All
   limitations periods are tolled during the Period.

5. Confidentiality. These talks are compromise negotiations under Fed. R. Evid. 408.

6. No admission. Nothing here admits any fact or waives any right.

Drafting notes

• A court doesn't have to honor paragraph 4 in deciding urgency, but a defendant who signed will struggle to argue the opposite. Talks without such a term got little credit in Moon Dot.
• The short term is intentional. Total90 shows how a long correspondence reads later.
• Paragraph 2 gives the plaintiff something real, which is also evidence that it wasn't simply sitting by. Rule 408 doesn't bar every use of negotiations, so don't put anything in the talks that you could not live with.

Paper 18: Cross-examination outline on delay

Purpose: Use the hearing to make the chronology undeniable. Owner: Opposition trial lawyer. Timing: After the plaintiff's declarations come in.

1. Lock in the role. You are [title]. You've been responsible for the brand since [date].
2. The monitoring. You have a watch service. It reports to [name]. It reported on [date].
   (Ex.)
3. First knowledge. You saw [document] on [date]. (Ex.) You understood it referred to my
   client.
4. Next step. What did you do the next day? The next week? Point me to the document.
5. Your declaration says "promptly." Read the dates in paragraph [N]. [Count days.]
6. No motion. You didn't ask a court for help on [date], or [date], or [date].
7. Money, if any. You wrote on [date] that you'd accept $[amount]. You wrote that in order
   to resolve this. (Ex.) [Mind Rule 408 and the purpose offered: urgency, not liability.]
8. Harm specifics. Name the customer you lost. Name the retailer. [Only if you know the
   answer, or if any answer helps.]
9. Stop.

Drafting notes

• Point 4 follows Wreal, which focused on the absence of any activity during the gap.
• Point 7 uses Total90, and the Rule 408 note matters. Have your purpose ready, and expect an objection.
• Point 8 follows Herb Reed's demand for evidence over platitudes.
• For the plaintiff's preparation, run this same outline in the conference room and fix what you can't answer. For general witness preparation methods, see Expert Depositions: Taking Apart the Opinion, Protecting Your Own Expert, and Building the Daubert Record where the witness is an expert.

Paper 19: Compliance report

Purpose: Satisfy the sworn report under § 1116(a), and create a clean record. Owner: Enjoined party's officer, with counsel. Timing: Within 30 days after service, unless the order sets another time.

DEFENDANT'S REPORT OF COMPLIANCE (15 U.S.C. § 1116(a))

I, [Name], [title] of [Defendant], state under oath / declare under penalty of perjury:

1. I received the Order on [date] and gave it to [persons] on [dates], with instructions
   to comply.

2. Physical goods: [units] held at [location] were [stickered / relabeled / quarantined /
   destroyed] on [dates]. [Units] remain, and are being handled by [method].

3. Online: As of [date], the following identifiers were changed or removed: [Schedule 1,
   with dates]. Captures are attached as Exhibit [A]. Requests sent to third parties
   are Exhibit [B], with responses: [ ].

4. Advertising: Ad text and accounts changed: [list].

5. Sell-off, if allowed: [units sold through date; revenue held in account [ ]].

6. Items not yet complete: [item, reason, expected date].

7. Ongoing control: [who monitors, and how often].

Drafting notes

• Section 1116(a) requires "a report in writing under oath" if the injunction so directs. A statement under 28 U.S.C. § 1746 generally substitutes for an oath in federal court unless the rule requires otherwise; check whether the order specifies a notarized oath.
• Disclose what isn't done. Paragraph 6 protects a good-faith defendant, while an inaccurate report invites Contempt and Enforcement Checklist: A Practical Checklist. Reno Air shows that a court will look at whether the defendant had fair notice, but a defendant shouldn't bet on that.
• If you plan to appeal, file the report regardless. Rule 62(c) means an appeal doesn't stay the order, and you should move under Rule 62(d) and Nken v. Holder, 556 U.S. 418 (2009) if you need relief. Deadlines for appeal are in FRAP 4 and 28 U.S.C. § 1292(a)(1).

These forms are starting points of a general kind, and they aren't legal advice for any specific dispute; they need a lawyer's adaptation to your facts and forum.

Related Documents

Related Articles

• Trademark Preliminary Injunctions After the Trademark Modernization Act: The Presumption of Irreparable Harm and the Delay Trap: why each form says what it says.
• Preliminary Injunctions and Temporary Restraining Orders: Emergency Relief in Federal Court: Rule 65 in general.
• Counterfeiting, Seizure Orders, and Schedule A Litigation: Fighting Fakes in Federal Court: papers for seizure orders differ.
• Lookalike Domains and Typosquatting: Phishing, Invoice Fraud, and the Legal Tools That Take Them Down: when your Schedule 1 is mostly domains.

Related Guides

• Winning or Opposing a Trademark Preliminary Injunction: A Practical Guide: when and how to deploy each paper.
• Enforcing Trademarks Against Online Sellers and Platforms: A Practical Guide: platform steps that run alongside a motion.

Related Checklists

• Trademark Preliminary Injunction Checklist: A Practical Checklist: the desk list that goes with this file.
• Preliminary Injunction and TRO Application Checklist: A Practical Checklist: the general application checklist.

Related Toolkits

• Trademark Enforcement and Litigation Toolkit: From Watching to Verdict and Appeal: the full enforcement life cycle.
• False Endorsement Toolkit: Talent Releases, Clearance Logs, and Demand Letters: forms for an adjacent § 1125(a) claim.
• False Advertising Toolkit: Substantiation Files, Surveys, and Injunction Briefing: injunction papers for the false advertising side of the same statute.