Citibank waited a little more than ten weeks. It had learned directly in late June 1984 that a Connecticut bank called Citytrust was opening an office on Long Island, near the heart of Citibank territory, and it asked for a preliminary injunction on September 14. The district court granted it. The Second Circuit reversed, and in Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985) it observed that the claim that a major bank could not find out sooner "strains one's credulity."

Forty-one years later, Gilead Sciences waited ten months after a patient in Maryland reported receiving a Turkish version of his HIV medication. It lost nothing for it. The Fourth Circuit affirmed the injunction in Gilead Sciences, Inc. v. Santulli, No. 25-1850 (4th Cir. Aug. 13, 2026, amended Aug. 18, 2026), because those months had gone to investigating the scheme and reporting it to the FDA.

Ten weeks can be fatal and ten months can be fine. That gap is the practical center of trademark preliminary injunction law, and it matters more now that Congress has handed trademark owners a presumption of irreparable harm. Suppose a knockoff of your product launches on Monday and your selling season opens in six weeks. The statute is on your side. Your own calendar may not be.

The short answer

  • The presumption is back, by statute. Under 15 U.S.C. § 1116(a), a plaintiff who shows likely success on a trademark, unfair competition, dilution, or cybersquatting claim under the Lanham Act gets a rebuttable presumption of irreparable harm, at the temporary restraining order stage and the preliminary injunction stage alike.
  • It is a weak presumption where it has been closely examined. Nichino America, Inc. v. Valent U.S.A. LLC, 44 F.4th 180 (3d Cir. 2022) reads it through Federal Rule of Evidence 301. The defendant need only produce evidence from which a reasonable factfinder could conclude irreparable harm is unlikely. If it does, the presumption vanishes and the plaintiff needs actual proof.
  • So build the harm record anyway. A movant who files only the presumption has no fallback once the bubble bursts.
  • Delay is the commonest way to lose. Courts measure from when you knew or should have known. Unexplained gaps of months have defeated motions, and that includes gaps after the complaint was filed. Investigation, documented week by week, is the excuse that works best. Negotiating for money is the excuse that works worst.
  • Everything still starts with the merits. No likelihood of success, no presumption. The other three factors of Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) stay where they were, and Starbucks Corp. v. McKinney, 602 U.S. 339 (2024) confirms that courts stick to that test absent a clear command from Congress.
  • The order is a product, too. The bond caps what a wrongly enjoined defendant can recover, the order must describe the forbidden acts without pointing to other documents, and after Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023) it has to stay tied to domestic use in commerce.

For the general federal framework, read Preliminary Injunctions and Temporary Restraining Orders: Emergency Relief in Federal Court. This article covers what is different when the right at stake is a trademark.

Why trademark cases are so often decided at this stage

A preliminary injunction is a court order, entered before trial, that stops the defendant from doing something while the case proceeds. Its purpose, as the Supreme Court keeps saying, is "merely to preserve the relative positions of the parties until a trial on the merits can be held." University of Texas v. Camenisch, 451 U.S. 390 (1981), quoted in Starbucks. It is customarily granted on less formal procedures and less complete evidence than a trial, and its findings do not bind the court at trial.

In theory, then, it is a placeholder. In practice, it is frequently the case. A brand owner rarely wants money as much as it wants the confusing product gone. A defendant forced to rename a product, relabel inventory, and rebuild its listings has already absorbed most of the cost of losing, and has little appetite for spending more to win back a name it has stopped using. A defendant who defeats the motion has usually learned that the judge doubts the confusion theory, and the plaintiff learns the same thing. Practitioners' notes, including Practical Law's Trademark Litigation: Injunctive Relief note, make the same observation, that many cases settle after the ruling.

Trademark injury also has an unusual shape. A trademark is a promise about source. When a stranger uses a confusingly similar mark, the owner loses control of what that promise means to the public. A bad candle sold under a name that looks like yours makes customers think worse of your candles, and you may never learn which customer walked away or why. The Tenth Circuit described the logic as resting on the difficulty of distinguishing the owner's offering from the competitor's and of quantifying the damage from consumer confusion. Trial Lawyers College v. Gerry Spence's Trial Lawyers College, 23 F.4th 1262 (10th Cir. 2022). For decades that logic made courts comfortable presuming the harm.

How the old presumption died

For most of the twentieth century, federal courts treated irreparable harm in trademark cases as nearly automatic. Show likely confusion and the harm followed. The Ninth Circuit said so in Brookfield, the Second in Omega Importing, and the Third in Opticians Ass'n of America v. Independent Opticians of America, 920 F.2d 187 (3d Cir. 1990) and Kos.

Two Supreme Court cases about other subjects took the foundation out.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) was a patent case about a permanent injunction. The Federal Circuit had a general rule that an injunction follows a finding of infringement. The Court rejected it. A plaintiff must satisfy the traditional four factors, the decision is an act of equitable discretion, and a major departure from equity practice should not be lightly implied. The Court noted that the Copyright Act's similar injunction language had not produced an automatic rule either.

Winter followed in 2008. The Navy sonar plaintiffs had shown a "possibility" of irreparable harm, which the Ninth Circuit thought enough given their strong merits. The Court held that the plaintiff must show irreparable injury is likely, and that an injunction is an extraordinary remedy, never awarded as of right. Two years later, Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) rejected a soft presumption in environmental cases with a memorable phrase: "No such thumb on the scales is warranted."

Lower courts then had to decide what this meant for trademarks. Their answers came slowly and not uniformly.

Herb Reed and the end of "platitudes"

Herb Reed deserves a close read because the plaintiff's failure in that case still describes what a thin harm showing looks like.

The dispute concerned The Platters, the 1950s vocal group, and decades of litigation over who could use the name. The district court found likely success, found irreparable harm, and set a $10,000 bond. The Ninth Circuit agreed the plaintiff was likely to succeed and still reversed. The trial court's reasoning, it held, was "grounded in platitudes rather than evidence." The court had worried about encouraging infringement of vintage music groups and had cited a similar case. Neither was evidence of what would happen to this plaintiff.

The strongest thing in the record was an email from a would-be customer complaining to the defendant's booking agent about wanting Herb Reed's band, not another tribute band. That, said the panel, "simply underscores customer confusion, not irreparable harm." The sentence is worth remembering. Confusion and irreparable harm are separate questions, and a stack of misdirected emails proves only the first. The panel did allow that evidence of loss of control over business reputation and damage to goodwill could constitute irreparable harm. The plaintiff just had not offered it.

Scholars argued about how much this mattered in practice. Mark Lemley's Did eBay Irreparably Injure Trademark Law?, 92 Notre Dame L. Rev. 1795 (2017), is the place to begin on the theory. For practitioners the effect was clear enough: trademark plaintiffs began filing declarations about goodwill, and courts began asking for them.

How Congress brought it back

The Trademark Modernization Act of 2020 became law on December 27, 2020, inside a very large appropriations bill. Most people know it for expungement and reexamination, covered in Expungement, Reexamination, and Letters of Protest: The Trademark Modernization Act in Practice. Section 226 of the Act (Pub. L. 116-260) added one sentence to the injunction statute:

"A plaintiff seeking any such injunction shall be entitled to a rebuttable presumption of irreparable harm upon a finding of a violation identified in this subsection in the case of a motion for a permanent injunction or upon a finding of likelihood of success on the merits for a violation identified in this subsection in the case of a motion for a preliminary injunction or temporary restraining order."

Read the sentence as a lawyer would, and several things stand out.

What it covers. "Any such injunction" refers to the prior sentence, which reaches injunctions to protect "any right of the registrant of a mark registered in the Patent and Trademark Office" or to prevent a violation of 15 U.S.C. § 1125(a), (c), or (d). So the presumption is available for registered marks under § 1114, for unregistered marks and false designation under § 1125(a), for dilution, and for cybersquatting. Section 1125(a) also houses false advertising, so the text reaches that claim, and the Ninth Circuit treated it that way in InSinkErator, LLC v. Joneca Co., No. 25-286 (9th Cir. Dec. 29, 2025), a published opinion about inflated horsepower claims on garbage disposals. For that claim, see False Advertising Under the Lanham Act: Literal Falsity, Materiality, and Competitor Standing.

What it leaves out. State-law claims get nothing from it, and neither do claims under other federal statutes. In AK Futures LLC v. Boyd Street Distro, LLC, 35 F.4th 682 (9th Cir. 2022), the plaintiff had the presumption on its trademark claim only, even though the same counterfeit products drew a copyright claim as well. If your motion rests on state unfair competition law because your federal claim is weak, you are outside the statute and need to look to that state's own standard.

What triggers it. A "finding of likelihood of success on the merits." The presumption does not lower that bar. It operates only after the court has found it cleared. As the court put it in Total90, LLC v. Nike, Inc., No. 2:25-cv-02325 (E.D. La. June 22, 2026), the presumption is "contingent on a finding of a likelihood of success."

The odd rule of construction. Section 226(b) says the Act "shall not be construed to mean that a plaintiff seeking an injunction was not entitled to a presumption of irreparable harm before the date of enactment of this Act." Congress was hedging, declining to concede that Herb Reed and Ferring had been right. Nichino read the clause to mean the plaintiff gets the presumption even if the infringing conduct predated the Act. Trial Lawyers College, reviewing an order entered before the amendment, applied no presumption. These transition questions are now mostly history.

A question nobody has fully answered. The Second and Ninth Circuits let a movant win on "serious questions going to the merits" plus a balance of hardships tipping sharply in its favor, under Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) and Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010). The Fourth Circuit rejected that kind of sliding scale in Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reinstated in relevant part, 607 F.3d 355 (4th Cir. 2010). Check how your circuit stands. The statutory trigger is "likelihood of success." A careful defendant should argue that a "serious questions" finding does not unlock the presumption, and a careful plaintiff should ask the court to find likely success outright so the question never arises.

What the presumption actually does: Nichino read closely

The leading appellate treatment involves pesticide. Nichino sold CENTAUR, a solid insecticide sold by the pallet at about $24 a pound. Valent launched SENSTAR, a liquid at $425 a gallon, with a logo that resembled CENTAUR's colors, fonts, and arrow artwork. The two products went after many of the same insects in the same regions, through distributors.

Judge Stark, then in the District of Delaware, found Nichino narrowly likely to succeed. He tallied five confusion factors for Nichino, two neutral, and three "very important" ones for Valent. He applied the new presumption, found it rebutted, found no independent showing of harm, and denied the motion. The Third Circuit affirmed in an opinion by Judge Matey, who set out to explain how the statute works.

The key move is that the statute says "rebuttable" and says nothing else. So the default rule governs, and that rule is Federal Rule of Evidence 301: the party against whom a presumption runs "has the burden of producing evidence to rebut the presumption," but this "does not shift the burden of persuasion, which remains on the party who had it originally." The panel then laid out three steps.

  1. Merits first, and only merits. The court assesses the plaintiff's evidence as it bears on likely success, using the circuit's confusion factors (in the Third Circuit, the Lapp factors). Commenting on whether that evidence shows harm jumps ahead. If there is no likely success, the motion ends here.
  2. Then the burden of production shifts. The court assumes irreparable harm "even if the plaintiff has proffered nothing in support." The defendant must introduce evidence sufficient for a reasonable factfinder to conclude that the confusion is unlikely to cause irreparable harm. The court looks at whether that evidence exists and is enough, without weighing it heavily; "[o]ver-scrutinizing the persuasive value of evidence proffered on rebuttal would violate Rule 301."
  3. If rebutted, the presumption is gone. It "has done its work and simply disappears like a bursting bubble." The plaintiff must now point to evidence that irreparable harm is likely.

"Bursting bubble" is the evidence teachers' name for the theory, associated with Thayer, that a presumption has no weight of its own once the other side produces evidence. It contrasts with approaches where a presumption continues to influence the factfinder.

The panel described the defendant's burden as "slight" and "light." Its footnote is striking on how little will do: in a prior case a borrower's single non-conclusory, self-serving affidavit based on personal knowledge rebutted a Rule 301 presumption.

What counted and what did not

Valent's rebuttal was the sophistication of its buyers. The relevant class, measured by small commercial farmers rather than large agribusiness, bought an expensive seasonal product, often on expert advice, knowing that misapplying it could destroy a crop. That made it plausible, the panel said, that they would confirm their selection "before staking their farms on an inadvertent purchase."

One thing did not count. The district court had also relied on Nichino's failure to produce evidence of actual confusion. The panel called that a "slight error": at the rebuttal stage, the defendant cannot meet its burden by pointing at what the plaintiff lacks. It has to bring something of its own.

Three implications that are easy to miss

First, the presumption can be rebutted with the same facts that nearly lost the merits. Valent's sophistication evidence was already a Lapp factor. A defendant who loses the confusion fight narrowly can recycle its best confusion evidence and pop the bubble. That means a close merits case tends to produce a rebutted presumption, which means the movant with the closest case, who most needs the presumption, gets the least from it.

Second, the real work moves to the plaintiff's opening papers. Nichino "did not independently show irreparable harm," and that ended things. A plaintiff that files a harm declaration only in reply, after the opposition lands, may find the court unwilling to consider it. Treat the presumption as a tiebreaker and put the goodwill evidence in the opening brief. InSinkErator shows the payoff. The trial judge wrongly thought the presumption unavailable, and the Ninth Circuit called the mistake harmless, because the plaintiff had proved likely harm without it, through evidence about lost retail shelf space and private-label bidding.

Third, adoption is real but incomplete. The Fifth Circuit cites Nichino with approval in Whirlpool Corp. v. Shenzhen Sanlida Electrical Technology Co., 80 F.4th 536 (5th Cir. 2023). The Federal Circuit applied the presumption without elaboration in SoClean, Inc. v. Sunset Healthcare Solutions, Inc., 52 F.4th 1363 (Fed. Cir. 2022), where the defendant "did not attempt to rebut" it. AK Futures and Gilead apply the statute without adopting the bursting-bubble vocabulary. I am not aware of a circuit rejecting Nichino's Rule 301 reading, but most have not been asked to decide it directly, and in some circuits the older instinct persists. The Sixth Circuit, in Libertarian National Committee, Inc. v. Saliba, 116 F.4th 530 (6th Cir. 2024), treated likelihood of success as typically dispositive of a trademark preliminary injunction. Check your circuit before you assume how much weight the presumption carries there.

Worked example: the sensor company and the bursting bubble

Suppose Corvane Instruments sells industrial vibration sensors, registered mark CORVANE, at about $40,000 per installation, through a direct sales force. A new entrant launches CORVANA sensors at $28,000. Corvane sues and moves.

The judge finds likely success: the marks are nearly identical and the goods overlap. Corvane's brief then says, in one paragraph, that the statute presumes harm. The opposition attaches a declaration from the new entrant's sales director, with six months of sales records, showing every purchase runs through a site survey, a technical review, and a signed quotation on letterhead. It also attaches Corvane's own marketing, boasting that its customers run formal procurement.

Under Nichino, that likely rebuts. Corvane has no declaration on goodwill and no lost-customer evidence, and it filed nothing about what confusion would do to its business. The bubble bursts and Corvane has an empty record on the second Winter factor. Had its opening papers included its sales chief's account of a customer who delayed a renewal after a CORVANA sensor failed on a neighboring line, the presumption's disappearance would have cost it little.

The delay trap

The presumption rests on a premise: this harm is urgent and cannot be repaired later. A trademark owner who knows about the infringement and does nothing has offered evidence against the premise with its own conduct.

The Supreme Court has endorsed the logic in general terms. "[A] party requesting a preliminary injunction must generally show reasonable diligence." Benisek v. Lamone, 585 U.S. 155 (2018). The trademark doctrine goes back further and is more pointed. In Citibank, the Second Circuit held that "[s]ignificant delay in applying for injunctive relief in a trademark case tends to neutralize any presumption that infringement alone will cause irreparable harm pending trial, and such delay alone may justify denial of a preliminary injunction for trademark infringement."

Congress wrote "rebuttable" against that background. Courts applying the statute have pulled the old delay cases forward without hesitation, and nearly all of the post-Act denials in this section rest on them.

The cases, in a table

Case Gap Result Why
Citibank (2d Cir. 1985) Over 10 weeks from direct notice; over 9 months from press notice Injunction reversed A large bank could easily have checked
Tough Traveler, Ltd. v. Outbound Products, 60 F.3d 964 (2d Cir. 1995) At least 9 months to sue, 4 more to move Injunction vacated "Leisurely pace"; a seasonal-sales excuse failed
Weight Watchers International, Inc. v. Luigino's, Inc., 423 F.3d 137 (2d Cir. 2005) About 4 months from discovery, including consumer testing Delay not fatal Testing and talks explained most of it
Voice of the Arab World (1st Cir. 2011) Years of acquiescence Injunction vacated Presumption inapplicable after long delay
Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244 (11th Cir. 2016) Over 5 months after filing the complaint Denial affirmed Unexplained, and no discovery meanwhile
UATP IP, LLC v. Kangaroo, LLC, No. 22-2047 (Fed. Cir. Feb. 16, 2024) (nonprecedential) Over 10 months after filing the complaint Injunction vacated as to trade dress Trial court never addressed the delay, and its findings were inadequate
Total90 (E.D. La. 2026) Nearly 11 months from first contact to suit Denied No likely success; as an alternative ground, letters sought payment and a coming World Cup did not help
Moon Dot, Inc. v. Q Shack Corp., No. 3:25-cv-00396 (W.D.N.C. Aug. 21, 2025) Nearly 20 years by predecessor's parent; about 5 months by plaintiff Denied Assignment did not restart the clock
Ultra Marine Europe, s.r.o. v. Ultra Marine West, Inc., No. 1:26-cv-21899 (S.D. Fla. Sept. 21, 2026) Years Denied Plaintiff's principal knew; suit followed a contract termination
Diamonds Painting, Inc. v. CC Brand Holdings, LLC, No. 26-cv-3900 (E.D.N.Y. July 21, 2026) Disputed; defendant argued over a year Denied Delay plus defendant's remedial changes rebutted the presumption, on a false advertising claim
OpenAI, Inc. v. Open Artificial Intelligence, Inc., No. 24-1963 (9th Cir. Nov. 13, 2024) (unpublished) 8 years from first use to suit Injunction affirmed Confusion threat arose only in late 2022
Gilead (4th Cir. 2026) 10 months Injunction affirmed Investigation and an FDA report

Weight Watchers itself collects other Second Circuit data points: a four-month gap from first hearing of the activity, and three weeks from definite knowledge, not unreasonable; a five-month hunt followed by a motion within two weeks of examining the product, not unreasonable; suit seven months after release, not unreasonable. Other courts report less forgiving outcomes. The district court in Moon Dot cited a three-month gap in Two Hands IP LLC v. Two Hands America, Inc., 563 F. Supp. 3d 290 (S.D.N.Y. 2021), and an eight-week gap weighing against the movant in a North Carolina case. Ultra Marine cites nine months in BeatStars, Inc. v. Space Ape Ltd., 624 F. Supp. 3d 681 (W.D. Tex. 2022), which it describes as collecting denials at five to eighteen months.

There is no bright line and no safe harbor, and anyone who gives you a number is guessing. Reading across these opinions, a working rule of thumb is that weeks are safe, a few months need an explanation, and anything past six months needs a good one with paper behind it.

When the clock starts

Knowledge, including what you should have known. Citibank counted nine months from a press report, not just ten weeks from a direct answer. In Moon Dot, the plaintiff argued that the products were hard to find online. The court pointed to a "Merchandise" menu category on the defendant's site and Facebook photos of its rubs. The practical upshot for a brand team: your watch service reports, your sales rep's text about a competitor at a trade show, and your paralegal's search result all have dates. A defendant will find them in discovery, or sooner, by asking for them in expedited discovery. Marksy.us and similar search tools help you see conflicts early, but a monitoring system also creates the record of when you saw them, so someone must own what happens next.

Your predecessor's knowledge. Moon Dot found no authority that the clock "starts over" with the sale of a business. If you bought a brand, you bought its history of tolerating things. Do diligence on that before closing, along the lines of Who Owns the Brand: Trademark Ownership Disputes Between Co-Founders, Bands, Licensees, and Distributors.

The escalation exception. A trademark owner need not sue over every trivial use, and the clock can begin when a small use becomes a real threat. The classic formulation is the progressive encroachment doctrine discussed in Tillamook Country Smoker, Inc. v. Tillamook County Creamery Ass'n, 465 F.3d 1102 (9th Cir. 2006): an owner may wait until the junior user "moves into direct competition." Tillamook itself shows the limit, because the "cheese people" lost on laches after a quarter century of letting the "meat people" alone. In the OpenAI memorandum, the Ninth Circuit applied it to a claim of eight years' delay, finding that only in November 2022 did confusion threaten the plaintiff's goodwill. That is an unpublished disposition with a dissent on other grounds. It is useful but not something to build a strategy around. If you plan to rely on escalation, your papers must identify the date on which things changed and show what you did right after. Voice of the Arab World shows a further limit. The district court thought a change to the defendant's websites in August 2009 had revived the presumption after almost ten years of acquiescence, and the First Circuit disagreed.

When the clock keeps running

After the complaint. Do not assume that suing stops it. Wreal sued Amazon over Amazon's Fire TV, in a reverse-confusion dispute about its FyreTV mark. Despite "the alacrity with which" it filed, it conducted no discovery and made only routine filings for five months before moving. The Eleventh Circuit said Wreal had pursued its motion "with the urgency of someone out on a meandering evening stroll rather than someone in a race against time," and it affirmed on irreparable harm without reaching the other factors. Tough Traveler made the same point, counting nine months before suit and four months after. And in UATP, an adventure park dispute, the Federal Circuit held it was error for a district court not to address a ten-month gap between complaint and motion. The opinion is nonprecedential, but the lesson is easy to apply: a trial court that skips the question hands the other side an appellate issue, so a movant should want it answered in the order.

While you negotiate. Good faith talks can explain some delay. Some older district court decisions excused several months of real negotiation. But the recent trend is cold. Moon Dot noted that the parties "had been talking since November 2024" and held that the talks still did not reflect the urgency claimed. Total90 is more pointed. The plaintiff had first contacted Nike's counsel in December 2024 and then, over nearly eleven months and "numerous communications," sought monetary payment in exchange for abandoning its registration. Addressing the plaintiff's World Cup argument in a footnote, the court said it saw the tournament more as an opportunity for financial gain, that it did not mean to express any disapproval of financial gain, but that "irreparable harm, by its very definition, cannot be compensated by money." A demand for a check is an admission that a check would do. For demand-letter drafting with this problem in mind, see Trademark Cease-and-Desist Letters: Sending and Responding: A Practical Guide.

During a slow season. Tough Traveler argued that its rival's child carrier sales ran from January through June, so it saw nothing to enjoin when it first noticed the product in mid-1993. The panel replied that this could not explain why it let the entire 1994 selling season pass. Seasonal products get some sympathy, but only if you move before the season starts.

While you build the survey. Weight Watchers commissioned a survey that finished in November and did not move until January. It survived, but only just, with a remark that it "did not act as promptly as it could have." Time spent on evidence counts as diligence only while the evidence is actually being built, and the weeks between finishing and filing are hard to explain.

What stops the clock

The best answer remains the one Tough Traveler preserved and Gilead just applied: delay may not undo the presumption if it results from ignorance of the competing product or "good faith efforts to investigate the alleged infringement."

Gilead is worth reading on this because the facts were useful ones. Gilead learned of the Turkish Biktarvy in February 2024 and sued in December. In between, it asked the patient to send the medicine to its quality team, reported the incident to the FDA, and looked into the broader scheme. The district court said Gilead "did not sit on its hands." The defendants quoted Tough Traveler's "inoperative" language, and the panel pointed to its next clause and said they had not "come close" to showing an abuse of discretion. The facts likely helped: an arrangement with several participants that took work to uncover, and a prescription drug with obvious safety stakes. A plaintiff with a single knockoff on a marketplace should not expect ten months.

Delay is not laches

Citibank drew the line: a period of delay may fall short of laches and still indicate an absence of irreparable harm. Laches, the equitable defense for unreasonable delay that prejudices the defendant, goes to whether the plaintiff gets relief at all. Preliminary injunction delay asks a narrower question about urgency.

Gilead footnote 19 adds a sharp corollary. The defendants argued on appeal that a critical witness had died during the delay. The panel called the argument peculiar, because prejudice belongs to laches, and the laches factors "shed no light on the irreparable harm assessment." So defendants do not need to show prejudice to win on delay at the preliminary stage, and plaintiffs do not defeat a delay argument by showing none occurred. Plaintiffs also should remember that winning the delay fight at this stage does not settle laches for trial.

Worked example: a delay chronology, then and now

Suppose Kettlewick, a Duluth candle maker with a registered mark, gets the following sequence. A customer emails a photo of "KettleWyck" candles from a craft fair on March 3. Marketing forwards it to the founder with "ugh." Nothing happens until June 10, when a large online listing goes up. Counsel sends a demand letter on June 20. The seller replies on July 1 offering to talk. Talks run until August 15. Counsel files on September 5, seeking a preliminary injunction in time for the holiday season.

A defendant will say six months. Kettlewick will say twelve weeks, on the theory that the craft fair was de minimis and the online listing changed the threat. That argument has real support in the escalation cases, and the June 10 date is defensible if someone can testify to it. The trouble is July 1 to September 5. If Kettlewick's letters said "stop," the talks may help. If they said "we would consider a license at 8 percent," Total90 is coming. And the "ugh" email is going to be Exhibit 1 to the opposition.

If Kettlewick had filed a complaint and motion on June 25, this section of the opposition would not exist.

Other ways to rebut

Delay and sophisticated buyers are the two tested routes, but they are not the only ones.

Stopping. A defendant can try the argument that there is nothing left to enjoin. In AK Futures, the defendant's chief executive said the store had stopped selling and had no plans to resume. The panel held the argument waived because it had been made on a different issue below, then said it "strongly" doubted that the stated intent would have defeated the presumption, given admissions about the store's inability to control its supply. If you are a defendant and truly have stopped, say so under oath, offer a stipulated order, and put it under the irreparable harm heading. Courts are wary of a voluntary halt that can be reversed at will, but a real fix can count. In Diamonds Painting, the defendant overhauled its price displays, advertising, and country-of-origin statements after the motion was filed. The plaintiff invoked the demanding voluntary-cessation test from mootness cases. Judge Cogan answered that the question was irreparable harm, not mootness, and held that the delay and the remedial measures together rebutted the presumption, even if the changes were, as the plaintiff said, "incorrect or at best incomplete." A defendant with a cheap way to cure should think hard about curing early.

Coexistence. In Whirlpool, the Chinese manufacturer of KitchenAid-style stand mixers claimed the products had coexisted in the market for years. It raised that for the first time on appeal and with no factual support, and the court was unimpressed. The lesson is about record-building. Coexistence with real dates and real sales, offered below, is a serious argument, and it pairs with a lack of actual confusion that you can prove affirmatively.

Plaintiff's own valuation of the harm. Practical Law's note collects district court decisions finding the presumption rebutted when damages could be readily calculated, such as a plaintiff who offered to sell its business for a set sum or parties with a prior profit-sharing formula. Licensing offers cut the same way, though eBay itself warned that willingness to license does not categorically defeat irreparable harm. Fit the argument to the record: a past offer to license this defendant, on this mark, is much stronger than a general licensing program.

Plaintiff's unclean hands or thin rights. These usually go to merits or equities, but a mark with very weak commercial presence offers less goodwill to lose. Herb Reed is an example of how much the record matters, and defendants should point out when the plaintiff's own declarants identify no particular customer, channel, or relationship at risk.

The trigger: likelihood of success

The presumption fires only after a finding on the merits, and that finding is where most hard preliminary injunction fights happen. A full treatment of the confusion analysis belongs elsewhere, in Trademark Likelihood-of-Confusion Analysis: A Practical Checklist and, for the Second Circuit's special features, Polaroid Factors on Summary Judgment in the Second Circuit: A Practical Guide. Three stage-specific points deserve attention here.

Burdens track trial

"[T]he burdens at the preliminary injunction stage track the burdens at trial." Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006). The movant must show valid rights and likely confusion, and it carries that burden with no presumption to help. Registration supplies the first element for now: under 15 U.S.C. § 1057(b) and § 1115, it is prima facie evidence of validity and ownership. As the SoClean panel explained, for a contestable registration that shifts a burden to the defendant. Ultra Marine offers a nice corrective to overreliance: registration does put a thumb on the scale, the court wrote, but "it is a thumb, not an anvil." It does not resolve a rival's claim of decades of prior use.

The burden on affirmative defenses stays on the defendant, subject to KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004), which holds a fair use defendant has no independent burden to negate confusion. Unregistered marks are harder, because the plaintiff must also prove distinctiveness and, for descriptive marks, secondary meaning by the date of the defendant's first use. Judge Collins's dissent in OpenAI is a useful read on how easily that date can get muddled in a hurried order.

Each circuit has its factor list, and the factors do unequal work

The test goes by different names: Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961) in the Second Circuit, AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) in the Ninth, Lapp in the Third, the "digits of confusion" in the Fifth. All of them ask about mark strength, similarity, proximity, channels, intent, buyer care, and actual confusion.

Barton Beebe's An Empirical Study of the Multifactor Tests for Trademark Infringement, 94 Cal. L. Rev. 1581 (2006), remains the best account of how judges use them. A few factors tend to drive the result, and the rest often line up behind. Knowing that helps at a stage when nobody has time for all of it.

Shortcuts that actually work

Some fact patterns compress the analysis.

Counterfeits. In AK Futures, the defendant did not even contest the finding that it was selling counterfeits of the plaintiff's Cake vaping products. The fight moved to a statutory question about whether delta-8 THC products could carry protectable marks.

Holdover licensees and terminated franchisees. When a former licensee keeps using the very mark it was licensed to use, consumers have every reason to assume the relationship continues. Courts treat these as strong cases. In S & R, a terminated Jiffy Lube franchisee kept using the mark, and the Third Circuit reversed the denial of an injunction and ordered one entered, reasoning that the franchisor's right to terminate did not depend on the franchisee's other grievances. The dispute tends to shift to whether the termination was valid. For more, see Trademark Licensing and Quality Control: How Naked Licensing Kills a Brand.

Gray goods with material differences. Gilead applied the "low threshold of materiality" from Zino Davidoff SA v. CVS Corp., 571 F.3d 238 (2d Cir. 2009), under which even a slight difference consumers would consider relevant can make imported goods infringing. The defendants' pitch for cheap medicine failed on the public interest prong because it assumed the drugs were genuine. For background, read Gray Market Goods and the First Sale Doctrine: Parallel Imports, Exhaustion, and Border Enforcement.

Parody and expressive use, after Jack Daniel's. Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023) removed a shortcut for defendants. When the defendant uses the plaintiff's mark as a source identifier for its own goods, the threshold Rogers test does not apply and the ordinary confusion analysis governs. Vans, Inc. v. MSCHF Product Studio, Inc., 88 F.4th 125 (2d Cir. 2023) shows the consequence at this stage. MSCHF made the "Wavy Baby," a warped version of the Old Skool sneaker, and sold 4,306 pairs in one hour. ("Vans, unsurprisingly, was not amused.") The Second Circuit affirmed the TRO and preliminary injunction over both First Amendment objections. See Trademark Fair Use: Descriptive Use, Nominative Use, and Expressive Works After Jack Daniel's.

Shortcuts that fail. Plaintiffs like the "internet trinity," a short list of factors that the Ninth Circuit once featured for online cases. In Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011), a dispute over buying a competitor's mark as a search keyword, the court reversed a preliminary injunction and vacated it. The opinion stresses that the Sleekcraft factors must be applied flexibly and that the default level of consumer care online has risen. If your theory is keyword-based, see Trademark Liability Online: Keyword Advertising, Marketplaces, and Contributory Infringement After Tiffany v. eBay.

Building the record at speed

Evidence rules bend, but credibility does not

A court may rely on affidavits and hearsay that would not be admissible at a permanent injunction hearing, if the evidence is appropriate given the character and objectives of the proceeding. Levi Strauss & Co. v. Sunrise International Trading Inc., 51 F.3d 982 (11th Cir. 1995). The Ninth Circuit said much the same in Flynt Distributing Co. v. Harvey, 734 F.2d 1389 (9th Cir. 1984), and the general principle comes from Camenisch. Customer statements showing confusion often clear the hearsay bar anyway, because they are offered for the speaker's state of mind. Fun-Damental Too, Ltd. v. Gemmy Industries Corp., 111 F.3d 993 (2d Cir. 1997). So a screenshot and a declarant's account of a call from a confused retailer can come in. But evidence received at this stage that would be admissible at trial becomes part of the trial record under Rule 65(a)(2), so sloppy declarations follow you, and declarants may be cross-examined if the court holds a hearing.

Rule 65(a)(2) also lets the court consolidate the hearing with a trial on the merits, which occasionally happens when a case is simple and the parties want finality. Unless told otherwise, do not assume your motion papers will be your only chance. Trial Lawyers College illustrates that a court has discretion to consider evidence submitted after an evidentiary hearing.

Surveys at the preliminary stage

No statute or case requires a survey to win a preliminary injunction, and many motions succeed without one. But if confusion is truly contested and the defendant is a well-funded competitor, a survey may matter a great deal. The two standard designs are the Eveready format, which suits top-of-mind marks and asks respondents who they think makes the product, and the Squirt format, which shows respondents the marks in a simulated market setting and is better for weaker marks that appear in proximity. Jerre Swann's articles in The Trademark Reporter, including Likelihood of Confusion Studies and the Straitened Scope of Squirt, 98 TMR 739, and Shari Diamond's Reference Guide on Survey Research in the Federal Judicial Center's Reference Manual on Scientific Evidence are good guides to what a court expects.

The survey decision is also a delay decision, because a defensible survey takes weeks to design and field. Weight Watchers' survey was in the record at both its original hearings and its later motion to modify, and the time spent testing was part of what the court counted. Consider running a small pilot while drafting, and file on schedule even if the full study will arrive only with the reply. A flawed study can hurt more than none, and courts generally treat technical flaws as going to weight once a survey is admitted, as in Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Management, Inc., 618 F.3d 1025 (9th Cir. 2010). The 2023 amendment to Rule 702 sharpened the proponent's burden on expert reliability; how strictly a court applies that at an expedited hearing varies, and you should not count on leniency. For methodology, see Consumer Survey Expert Methodology in Trademark Cases: A Practical Guide and Daubert Challenges to Consumer Survey Experts in Trademark Litigation: A Practical Guide.

What a good harm declaration says

If the presumption bursts, a judge wants to see specifics about this plaintiff. Good declarations identify the quality or safety gap between the products, why it matters to this customer base, and which channels are at stake (authorized dealers, for instance, who may drop a line once the market is polluted). They describe the plaintiff's quality control and how a stranger's goods escape it, and they say why sales numbers will not capture the loss. Gilead credited a risk to goodwill and reputation among patients and healthcare providers that the district court called "stark and acute." It also found the presumption unrebutted, which is the safest way to win: both grounds at once.

Balance of hardships and the public interest

The defendant's side of the scale has more to it than plaintiffs admit, and less than defendants hope.

Nichino in a footnote saw no error in a finding that an injunction would cost Valent millions in lost sales while it reapplied and awaited approval for a new trademark, and that the public benefited from continued access to an innovative product. A defendant who can document that kind of relaunch cost has something better than a general complaint about disruption.

By contrast, Whirlpool dismissed the defendant's loss of markets and revenue as pecuniary and "presumptively reparable," then weighed that against the plaintiff's presumption. That is a useful asymmetry for plaintiffs, but note the catch: it is precisely the money a bond exists to cover, so a court persuaded by this reasoning should be open to a real bond. Defendants who lose this argument should immediately turn to Rule 65(c).

Self-inflicted hardship carries less weight, especially if the defendant launched with knowledge of the mark. The public interest usually follows the merits, on the theory that the public should not be confused. Whirlpool recognized that the public has an interest in competition but also in effective enforcement of the trademark laws.

TROs, ex parte relief, and asset freezes

A temporary restraining order is a very short order, usually issued within days of filing and sometimes without telling the other side. The statute's presumption applies at this stage too. Three rules dominate.

Without notice, the bar is high. Under Rule 65(b)(1), the movant needs specific facts showing that immediate and irreparable injury will occur before the adverse party can be heard, and counsel must certify efforts to give notice and the reasons notice should not be required. The Supreme Court explained in Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423 (1974) that our jurisprudence runs against court action before notice. The classic trademark exception is In re Vuitton et Fils S.A., 606 F.2d 1 (2d Cir. 1979), where the Second Circuit used mandamus to require an ex parte order because counterfeit networks would simply ship their stock elsewhere on receipt of notice.

The caution is Reno Air Racing Association, Inc. v. McCord, 452 F.3d 1126 (9th Cir. 2006). A merchandise seller at the Reno air races got hit with a TRO the day the complaint was filed, on the theory that he might leave the area and destroy or conceal his goods once he heard about the suit. The Ninth Circuit said a movant must do more than assert the defendant might dispose of evidence, and it must show a history of disposal or disobedience by the defendant or by similar persons. The order was also not specific enough, and the panel vacated the contempt sanctions. Reno Air is good reading for anyone tempted to use an ex parte form from the last case.

It runs out fast. An ex parte TRO expires in no more than 14 days unless extended for good cause or by consent, and a TRO extended beyond that can be treated as an appealable preliminary injunction under Sampson v. Murray, 415 U.S. 61 (1974).

Counterfeits have their own track. 15 U.S.C. § 1116(d) allows ex parte seizure of goods and records in a case involving a counterfeit mark, with demanding requirements and liability for wrongful seizure. Courts in the so-called Schedule A cases, which name dozens or hundreds of online sellers by store name, have spent years balancing speed against fairness, and jurisdiction there can rest on a single test purchase, as in NBA Properties, Inc. v. HANWJH, 46 F.4th 614 (7th Cir. 2022). Practice in that corner is shifting and varies by judge; see Counterfeiting, Seizure Orders, and Schedule A Litigation: Fighting Fakes in Federal Court.

Asset freezes depend on the remedy. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) bars prejudgment freezes in aid of ordinary money damages. Trademark plaintiffs route around it by seeking an accounting of profits, which is equitable. Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014) approves that route, while requiring personal jurisdiction over a nonparty bank before compelling it to comply. Levi Strauss affirmed a freeze with a $2,000-a-month living allowance. Vans took it a step further and upheld an order escrowing gross revenues from completed sales, because the plaintiff proves only sales under 15 U.S.C. § 1117(a) and the defendant had not established its costs. Disgorgement itself no longer requires willfulness under Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. 212 (2020), although it reaches only the named defendant's own profits under Dewberry Group, Inc. v. Dewberry Engineers Inc., 604 U.S. 321 (2025). If affiliates hold the money, name them.

The bond

Rule 65(c) says a court may issue the order "only if the movant gives security" in an amount the court considers proper to pay the costs and damages of a party found to have been wrongfully enjoined. The bond matters more than most litigants realize, and for one reason: the damages for a wrongful injunction generally cannot exceed the bond. A Lanham Act false advertising case from the Seventh Circuit put it bluntly. An error setting the bond too low "produces irreparable injury," and "district courts should err on the high side." Mead Johnson, 201 F.3d 883 (7th Cir. 2000), amended on denial of rehearing, 209 F.3d 1032. That bond was $1 million in a dispute where a single point of market share was conceded to be worth $10 million.

The circuits vary on how mandatory the requirement is.

Circuit authority Position
Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999) Mandatory; failure to require one is reversible error, but the amount can be nominal when harm is remote
Doctor's Associates, Inc. v. Stuart, 85 F.3d 975 (2d Cir. 1996) and Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003) Discretion as to amount, "if any"; may dispense with one where there is no realistic likelihood of harm
Vans (2d Cir. 2023) No error in omitting security where the opposing party never asked for it

Vans should be taped to the wall of every defense lawyer. MSCHF didn't request security, so it lost the point. If you oppose, ask for a number and support it with a declaration on the very first day.

How high can it go? Nintendo of America, Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032 (9th Cir. 1994) is the cautionary tale for movants. Nintendo posted a $15 million bond to stop sales of the Game Genie in a copyright case, then lost. The district court awarded Galoob the whole amount, the Ninth Circuit affirmed, and it held that a wrongfully enjoined party is presumptively entitled to recover its provable damages up to the amount of the bond. An earlier appeal had upheld the injunction itself, which shows that an order can survive review and the defendant can still turn out to have been wrongly enjoined.

Objections to the amount are reviewed for abuse of discretion, as InSinkErator recites, so build the record below. Plaintiffs should also budget for the premium, which is usually small relative to the face amount for a solvent company, as Mead Johnson noted, but which requires collateral for a smaller one.

Scope: what the order can reach

Specificity

Rule 65(d)(1) requires an order to state its reasons, state its terms specifically, and describe the acts restrained "in reasonable detail, and not by referring to the complaint or other document." An order that says "do not infringe the Marks as defined in the Complaint" invites reversal. Reno Air's TRO failed here too. A party facing contempt deserves to know exactly what it has to do; read Contempt and Enforcing Injunctions: Civil, Criminal, and What an Order Actually Compels.

What "stop using the mark" means on a computer

A software-literate drafter thinks about where the mark actually lives. It is rarely just on the box.

Location System-level reality Order language to consider
Marketplace listing Identified by listing ID or ASIN, not by brand name; sellers can relist under a new ID in minutes Name the IDs, and bar new listings using the mark or a confusingly similar variant
Website pages Visible text, but also title tags, meta descriptions, alt text, and structured data that search engines index Reach both visible and machine-readable uses
Paid search Purchased keyword is invisible to users; ad text is visible Separate the two; keyword bans are harder to justify after Network Automation
Domain and redirects DNS points the name at a server; a redirect can keep traffic flowing long after a page changes Address redirects and control of the domain, without overreaching. OpenAI left open whether the defendants could use open.ai for noninfringing purposes
Social handles, app stores Platform accounts that may be controlled by a contractor Cover persons in active concert, and set a transition date
Cached and third-party copies Search caches and resellers persist beyond the defendant's control Require good faith removal requests, not an impossible guarantee

Rule 65(d)(2) binds the parties, their officers, agents, servants, employees, and attorneys, and others in active concert who receive actual notice. A marketplace is not automatically in active concert with a seller, so a plaintiff who wants a platform to act usually relies on the platform's own procedures, as discussed in Enforcing Trademarks Against Online Sellers and Platforms: A Practical Guide.

Section 1116(a) adds a helpful feature that plaintiffs often forget: the injunction may direct the defendant to file a sworn report within 30 days describing how it has complied. Ask for it. And the injunction may be served anywhere in the United States.

Prohibitory versus mandatory

Stopping is one thing and fixing is another. Many courts impose a higher burden on orders requiring affirmative action. Not every affirmative term fails: InSinkErator affirmed an order making a competitor place a specific disclaimer on its sales materials and packaging, backed by a $500,000 bond. Still, Trial Lawyers College affirmed a trademark preliminary injunction but held the court "went too far" in making the defendants remove two sculptures from a ranch, an order the panel characterized as mandatory. Recall orders, corrective advertising, and takedown commitments may draw the same scrutiny. The Second Circuit's treatment of refund language in Vans, where it expressly reserved judgment on the suggested ultimate relief, shows appellate courts watching this line.

Geography at home

An injunction should reach where confusion is likely. Dawn Donut Co. v. Hart's Food Stores, Inc., 267 F.2d 358 (2d Cir. 1959) denied relief where a plaintiff with no retail presence in the defendant's market had no reasonable expectation of arriving. Guthrie Healthcare System v. ContextMedia, Inc., 826 F.3d 27 (2d Cir. 2016) pushes back against reading that too broadly. A permanent injunction limited to one geographic area, with nationwide internet use allowed, was too narrow. A senior user with a proven claim need not show the same high probability of harm in each additional territory, and a court can keep a proven infringer "safely away from the perimeter of future infringement." Remember Guthrie was a post-trial case, and at the preliminary stage a court will be more cautious.

Geography abroad

Abitron held that § 1114(1)(a) and § 1125(a)(1) extend only to claims where the infringing use in commerce is domestic. The district court in that case had enjoined use anywhere in the world, and the Tenth Circuit had already trimmed that. On remand, the Tenth Circuit went the rest of the way: "any permanent injunction issued against it cannot extend beyond Abitron's qualifying domestic conduct." Hetronic International, Inc. v. Hetronic Germany GmbH, 99 F.4th 1150 (10th Cir. 2024). Two later appeals show how that plays out. dmarcian, Inc. v. DMARC Advisor BV, No. 25-1084 (4th Cir. July 10, 2026) affirmed a preliminary injunction against a Dutch company because it rested on the company's conduct in the United States, and it said the effects-focused test of Steele v. Bulova Watch Co. "is no longer good law." The district court had rewritten that order after Abitron, and one term bars using the mark in the United States or on websites accessible from U.S. IP addresses unless a disclaimer accompanies the use. (The Chief Justice denied the Dutch company's application to stay that order on September 9, 2026, in No. 26A298.) In Commodores Entertainment Corp. v. McClary, No. 24-13225 (11th Cir. Sept. 29, 2025) (not for publication), the trial court had trimmed its permanent injunction so it no longer reached purely extraterritorial use, such as performances abroad, while the defendant's use of a New York booking agent to arrange those shows stayed enjoined as domestic use. The Eleventh Circuit affirmed the fee award that followed, noting the district court's finding that the worst litigation positions had nothing to do with the injunction's foreign reach. Writing an order in light of those decisions, ask where the mark is used in commerce under 15 U.S.C. § 1127: goods sold or transported in the United States and services rendered or advertised here. A foreign seller shipping to Ohio is within reach. The same seller's Berlin sales usually are not. A website accessible everywhere is a harder problem, and the sensible approach is a geographic limit tied to US customers, implemented with shipping restrictions, payment-country checks, and IP geolocation. IP geolocation is imperfect, because VPNs defeat it, so an order should speak of commercially reasonable measures rather than guaranteed exclusion. For foreign protection, read Protecting a Trademark Abroad: The Madrid Protocol, Territoriality, and Abitron v. Hetronic.

Universal injunctions, briefly

Trump v. CASA, Inc., 606 U.S. 831 (2025) held that universal injunctions likely exceed the equitable authority Congress gave federal courts, and it explained that "complete relief" means relief between the parties. That was a dispute about executive orders, and private trademark injunctions were never universal in that sense. It does have some spillover. A movant who wants an order against the world, or against unnamed future sellers who are not acting in concert with the defendant, now faces a recent Supreme Court statement that equity's default is party-specific relief. Courts in multi-defendant online cases may be more careful as a result.

What Starbucks v. McKinney adds

Starbucks came out of a labor dispute. The National Labor Relations Board sought an interim injunction, and the Sixth Circuit applied a deferential two-part test. The Supreme Court held that the ordinary four-factor test applies. When a statute gives courts equitable power, the Court said, there is "a strong presumption" that they will exercise it "in a manner consistent with traditional principles of equity," and "absent a clear command from Congress, courts must adhere to the traditional four-factor test."

There are three reasons trademark lawyers should care.

First, the opinion marks the clear-statement baseline. Section 1116(a) is a clear command about one thing, irreparable harm, and only one thing. A plaintiff who argues that the Act relaxes likelihood of success, the equities, or the public interest runs straight into Starbucks. So does anyone who treats "shall be entitled" as making an injunction automatic.

Second, the Court repeated Winter's language that a plaintiff must make "a clear showing" on each factor. This sits uneasily with sliding-scale approaches, and defendants in circuits that use them may cite Starbucks in support. It did not address those tests directly, however, and a court applying Cottrell is still bound by it until told otherwise.

Third, Starbucks reiterates the purpose of the remedy as preserving relative positions. That language helps a defendant facing an order to do more than maintain the status quo, and it helps a plaintiff whose newly launched rival is trying to establish a new status quo.

Appeal

An order granting or denying a preliminary injunction is immediately appealable under 28 U.S.C. § 1292(a)(1). A TRO generally is not. An interlocutory order that has the practical effect of granting or refusing an injunction can be appealed, as the Court explained in Carson v. American Brands, Inc., 450 U.S. 79 (1981), and Sampson treated a TRO extended past the rule's limits that way. The ordinary window is 30 days under Federal Rule of Appellate Procedure 4, and in a case where the whole point was speed, taking all 30 is often a mistake.

The order is not stayed by the appeal under Rule 62(c). The defendant must move first in the district court, under Rule 62(d) and FRAP 8, and show what Nken v. Holder, 556 U.S. 418 (2009) requires, a test that resembles the injunction factors themselves.

Review runs on the familiar tracks: legal questions de novo, facts for clear error, and the ultimate decision for abuse of discretion. Appeals on the merits of confusion are therefore hard. Nichino left the weighing of sound against sight alone as a fact question. The appeals that win tend to find a legal error. Tough Traveler found one in the district court's failure to deal with delay at all, and Voice of the Arab World held that presuming harm after that much delay was an error of law. Plaintiffs can win this way too: Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004) and S & R Corp. v. Jiffy Lube International, Inc., 968 F.2d 371 (3d Cir. 1992) both reversed denials and sent the cases back with directions to enter relief. Rule 52(a)(2) requires findings and conclusions, and an order without them is vulnerable. Herb Reed is a clear example, and UATP vacated on trade dress for this reason, adding that the presumption could not stand on a flawed likelihood-of-success finding. If you win below, then, help the judge write findings on each factor, including both the presumption and an independent basis.

Two appellate traps deserve a mention. Arguments not made below tend to die, as AK Futures and Whirlpool show, and Vans adds the bond. And a motion to reconsider is not a do-over. The OpenAI panel noted that a preliminary injunction is not a final order reachable under Rule 60(b), and it upheld the district court's view that new counsel was asking for "a re-do." For the Second Circuit's standards, see Second Circuit Appellate Standards in Trademark Cases: A Practical Guide.

One late thought on fees. Lackey v. Stinnie, 604 U.S. 192 (2025) held that plaintiffs who won only a preliminary injunction before the case became moot were not prevailing parties under 42 U.S.C. § 1988(b). The Lanham Act's fee provision, in § 1117(a), is a different statute with its own "exceptional cases" limit, but the reasoning about temporary relief will probably travel, so a preliminary win should not be budgeted as a fee-shifting event. On fees generally, see Lanham Act Attorney's Fees Under 15 U.S.C. § 1117(a): A Practical Guide.

Worked example: the defendant's view

Suppose Marrowbone Roasters, a Knoxville coffee company with six employees, gets served on a Tuesday. A national chain has sued over Marrowbone's new "Mornbone" seasonal blend and moved for a preliminary injunction, set for hearing in 12 days. Marrowbone's founder wants to fight everything.

A sensible response in that window has an order to it. First, get the dates: when did the plaintiff first object or show awareness? Marrowbone's trade show booth photo from fourteen months ago, showing the chain's regional manager holding a bag, could be the whole case. Second, get a declaration about real costs: printed bags, roaster's contract, the wholesale accounts committed through February. Third, ask for a bond, with numbers. Fourth, offer a narrow alternative in writing, for instance a sell-off of existing bags by January 15 and a changed name for the spring, which a judge can adopt if she finds likely confusion but wants to limit the harm. Finally, preserve everything for appeal by raising each argument under the right heading.

Marrowbone might not win. But it might end up with a short sell-off and a real bond rather than a next-day recall, and that outcome can decide whether the company survives. For what comes next if the name has to change, see Rebranding Without Regret: Clearance, Transition, and Protecting the Old Mark While Launching the New One.

Where the law is unsettled

  • How light is light? Not every court has adopted Nichino's description of the rebuttal burden. Some district courts simply weigh the evidence, which amounts to more scrutiny than the Third Circuit allows.
  • Does delay rebut the presumption, or something else? Courts variously say delay rebuts it, renders it inoperative, or defeats irreparable harm independently. Moon Dot said the presumption "does not apply"; Ultra Marine said it was rebutted. Under Nichino's logic the two should not differ much. A defendant should argue both.
  • Measuring from what? Total90 counted from the first communication, though Nike argued for a longer gap of 15 months. Courts differ on whether to run the clock from first use, first knowledge, or the first real threat.
  • Serious-questions interplay. Whether the presumption attaches when a court finds only serious questions is open, as discussed above.
  • Reverse confusion and goodwill. Cases like Wreal, where a smaller senior user faces a giant, raise distinct harm theories, since the big company swamps the smaller brand's identity rather than trading on it. How the presumption applies there has received little appellate attention.

Before you act

The first thing to do, on either side, is write down the dates. These notes are general information about federal trademark law and won't substitute for advice tuned to your facts, forum, and judge. If you are working out how fast you need to move in a live dispute, the firm is glad to talk through the timing.

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