Preliminary injunctions, though available in any type of case, are not uncommon in copyright and trademark cases.1 For more than 30 years, federal courts in the U.S. Court of Appeals for the Second Circuit used a two-part test first announced in Jackson Dairy Inc. v. H.P. Hood & Sons Inc., 596 F.2d 70, 72 (2d Cir. 1979), requiring a party in any case seeking a preliminary injunction to show: “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.”
Furthermore, in both copyright and trademark cases, the Second Circuit held that once likelihood of success was shown, there arose a presumption of irreparable harm. Thus, as a practical matter, a trademark or copyright owner seeking a preliminary injunction had to focus on proving a strong likelihood of success on the merits. Once proven, and absent unusual circumstances (most usually delay in seeking relief), entry of a preliminary injunction was almost routine.
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