Adidas America v. Skechers USA Adidas Adidas |

Background: The End of the Presumption of Irreparable Harm

Impact of Second Circuit's Preliminary Injunction Standard After Salinger, eBay v. Mercexchange Winter v. NRDC, eBay Winter Salinger v. Colting Herb Reed Enterprises v. Florida Entertainment Management, eBay Winter, Adidas |

'Adidas' Decision: The Facts

see image above see image above Sleekcraft Adidas ., after someone else |

Irreparable Harm: Where Adidas Faltered

Adidas |

The Dissent: The Stolen Prestige Theory

Mastercrafters Clock & Radio Co. v. Vacheron & Constantin-Le Coultre Watches, |

Lessons to be Learned

Adidas

  1. Develop all applicable theories of irreparable harm: Adidas discussed two, and there are other recognized forms, such as loss of goodwill and commercial reputation. Relying on only one theory runs the risk of having it rejected.
  1. Irreparable harm theories should be supported by concrete evidence: Each step in an irreparable harm theory may well be scrutinized by a court—and there should be a solid evidentiary basis for it. While Adidas put in ample evidence that it is viewed as a premium brand, its evidence that Skechers is viewed by consumers as a lesser quality “value” brand was scant, and rested on testimony of its own employees, which many courts view with skepticism. Adidas would have been well advised to present additional evidence, such as industry experts or media comments, to support its thesis.
  1. Consider the totality of the circumstances, for both confusion and irreparable harm: In trademark cases, courts must consider the totality of the circumstances as to how the trademarks and goods are presented and viewed when determining likelihood of confusion. Context matters, and that includes, as Adidas illustrates, use of a house mark or logo along with the infringing mark. Adidas shows that this applies at two levels: whether there is confusion and whether there is irreparable harm, and a court may reach different conclusions on the two issues.
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Conclusion

Munaf v. Geren, Winter, Milton Springut is a partner at Springut Law.