Preliminary Injunctions in Trademark Cases: The Four-Factor Test After eBay and the Trademark Modernization Act
By Casey Scott McKay ·
Preliminary injunctive relief decides most trademark disputes long before trial, and the governing rules changed twice in fifteen years. This article traces how eBay and Winter dismantled the old presumption that likely confusion means irreparable harm, and how the Trademark Modernization Act of 2020 wrote a rebuttable presumption back into 15 U.S.C. § 1116(a). It works through each of the four Winter factors as courts actually apply them after the TMA, including what evidence rebuts the presumption, why delay remains the most reliable way to lose a motion you should win, how self-inflicted hardship gets discounted, and when the public interest cuts against the brand owner. It maps the circuit-by-circuit variations in the standard and covers TRO practice and the notice requirement of Rule 65(b), the Rule 65(c) bond, the specificity and scope rules of Rule 65(d), and interlocutory appeals under Section 1292(a)(1) of Title 28. It closes with the recurring fact patterns — holdover licensees, gray goods, departing founders, keyword ads, and mass anonymous-seller cases — and an honest account of what the law has not yet settled. The step-by-step mechanics live in the companion guide and checklist.
IP and Technology > Trademarks | Article | Published 20 August 2025 - Updated 12 July 2026 | Casey Scott McKay - marksy.us
Summary. Preliminary injunctive relief decides most trademark disputes long before trial, and the governing rules changed twice in fifteen years. This article traces how eBay v. MercExchange and Winter v. NRDC dismantled the old presumption that likely confusion means irreparable harm, and how the Trademark Modernization Act of 2020 wrote a rebuttable presumption back into 15 U.S.C. § 1116(a). It works through each of the four Winter factors as courts actually apply them after the TMA — what rebuts the presumption, why delay is the most reliable way to lose a motion you should win, how self-inflicted hardship gets discounted, and when the public interest cuts against the brand owner. It maps the circuit variations, covers TRO practice and notice under Fed. R. Civ. P. 65(b), the Rule 65(c) bond, the scope and specificity rules of Rule 65(d), and interlocutory appeals under 28 U.S.C. § 1292(a)(1). It ends with the recurring fact patterns and an honest account of what the law has not settled. The step-by-step mechanics live in the companion guide and checklist.
Keywords: preliminary injunction · temporary restraining order · trademark modernization act · irreparable harm presumption · winter v. nrdc · ebay v. mercexchange · 15 u.s.c. 1116(a) · rule 65 · injunction bond · rule 65(c) security · likelihood of success on the merits · balance of hardships · public interest · delay and laches · interlocutory appeal · 28 u.s.c. 1292(a)(1) · lanham act remedies · ex parte seizure order · scope of injunction · trademark litigation
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