Preliminary Injunction Motion Checklist for Trademark Cases: Declarations, Bond, and Notice

By Casey Scott McKay · 2026-06-28

This checklist runs a trademark preliminary injunction motion from the first phone call to post-order compliance, in eleven phases a practitioner can work top to bottom. It covers the 48-hour triage that decides whether an injunction case exists at all, the forum and local-rule research that must happen before drafting, the evidence package and how to authenticate it, the five-declarant package and the harm paragraph that survives the "platitudes" objection, and the memorandum. It then works through the proposed order drafted for a contempt proceeding under Fed. R. Civ. P. 65(d), the Rule 65(c) bond from both sides with real numbers, the notice and service mechanics including the Rule 65(b)(1)(B) certification, hearing preparation and the Rule 65(a)(2) consolidation question, and post-order enforcement under 15 U.S.C. § 1116(a). A final phase gives the opposing party its own working list. One matter — Brindle & Co. against Halcyon Beverage Group over BRINDL canned coffee — is carried through every phase so the reader can see what a finished filing looks like, with dates, dollar figures, and order language.

IP and Technology > Trademarks | Checklist | Published 28 June 2026 - Updated 21 July 2026 | Casey Scott McKay - marksy.us

Summary. This checklist runs a trademark preliminary injunction motion from the first phone call to post-order compliance, in eleven phases you can work top to bottom. It covers the 48-hour triage that decides whether you have an injunction case at all; the forum and local-rule research that must happen before you draft; the evidence package and how to authenticate it; the five-declarant package and the harm paragraph that survives the "platitudes" objection; the memorandum; the proposed order drafted for a contempt proceeding under Fed. R. Civ. P. 65(d); the Rule 65(c) bond from both sides with real numbers; notice, service, and the Rule 65(b)(1)(B) certification; hearing preparation and the Rule 65(a)(2) consolidation question; post-order enforcement under 15 U.S.C. § 1116(a); and a final phase for the party opposing the motion. One matter — Brindle & Co. against Halcyon Beverage Group over BRINDL canned coffee — runs through every phase, with dates, dollar figures, and order language.

Keywords: preliminary injunction checklist · temporary restraining order · rule 65 · rule 65(c) bond · injunction security · rule 65(b)(1)(b) certification · harm declaration · 28 u.s.c. 1746 declaration · order to show cause · proposed injunction order · rule 65(d) specificity · expedited discovery · section 1116(a) compliance report · notice and service · trademark litigation · delay defense · sell-off period · civil contempt · opposing a preliminary injunction

What this checklist is for

You have discovered someone using your client's mark, and somebody needs to stop. This is the working list for getting a motion for a preliminary injunction — with or without a temporary restraining order — assembled, filed, argued, and enforced in a United States district court.

Who should use it. Litigators running the motion, in-house counsel supervising outside counsel and approving a budget, and trademark prosecutors who have just handed a matter to litigation and want to know what will be asked of the client. Phase 11 is for the other side.

What it is not. It is not a course in the doctrine. Why the Winter factors look the way they do, what the Trademark Modernization Act's presumption is actually worth after Nichino, and how the circuits differ are all worked out in Preliminary Injunctions in Trademark Cases: The Four-Factor Test After eBay and the Trademark Modernization Act. The narrative version of the same workflow, with model language and cost tables, is Moving for a TRO or Preliminary Injunction in a Trademark Case. This document is the operational distillation of both.

What you need before you start. A signed engagement letter and a cleared conflicts check; the registration certificate and its chain of title; the client's earliest knowledge date, in writing, from the people who would know; a budget authority of at least $95,000 for an uncontested-schedule motion and $290,000 for a contested one; a litigation hold issued; and a decision-maker at the client who can be reached at 9:00 p.m. Diligence you should already have finished before day zero is in the Pre-Litigation Enforcement Checklist. If you have not yet decided between district court and the Board, decide first — the TTAB cannot enjoin anyone from doing anything. See Federal Court vs. TTAB: Where to Bring Your Dispute.

The matter carried through. Brindle & Co. is a Portland cold-brew roaster that owns Reg. No. 5,884,102 for BRINDLE for "coffee; coffee beverages" in Class 30, issued 2019, with a § 15 declaration accepted in 2025. On Wednesday 4 March 2026 a Boise distributor emails to ask whether Brindle has "gone into cans." It has not. Halcyon Beverage Group, Inc., a Colorado corporation, launched BRINDL Cold Brew Energy three weeks earlier into roughly 1,400 convenience stores across eight western states. Every phase below shows what Brindle's counsel actually did.

Phases at a glance

| Phase | What happens | Elapsed | Governing rule | | --- | --- | --- | --- | | 1. Triage and timing | Decide whether this is an injunction case | Days 0-2 | Fed. R. Civ. P. 11(b) | | 2. Forum, judge, and local rules | Pick the court; read its emergency practice | Day 2 | 28 U.S.C. §§ 1338(a), 1391(b) | | 3. Evidence package | Build eight months of record in ten days | Days 3-12 | Fed. R. Evid. 902(13)-(14) | | 4. Declaration package | Convert exhibits into sworn testimony | Days 5-14 | 28 U.S.C. § 1746 | | 5. Complaint, motion, memorandum | Twenty-five pages a judge reads once | Days 6-14 | Fed. R. Civ. P. 7(b), 65(a) | | 6. Proposed order | The only document that matters in six months | Day 4 draft; Day 13 final | Fed. R. Civ. P. 65(d) | | 7. Bond | Propose the number before your opponent does | Days 10-14 | Fed. R. Civ. P. 65(c), 65.1 | | 8. Notice, service, and filing | Get it in front of a judge today | Day 14 | Fed. R. Civ. P. 4, 5, 65(b)(1)(B) | | 9. Hearing preparation | Two witnesses, five questions, one bench memo | Days 15-30 | Fed. R. Civ. P. 43(a), 65(a)(2) | | 10. Post-order enforcement | Turn paper into a market change | Weeks 4-16 | 15 U.S.C. § 1116(a) | | 11. Opposing the motion | Defeat it or shrink it | 7-14 days | Fed. R. Civ. P. 65(b)(4) |

Phase 1 — Triage and the timing decision (48 hours)

[ ] Interview the marketing lead, the sales lead, and whoever runs the watch service, and fix in writing the earliest date the client knew of the accused use.
- Why. The delay clock runs from the client's knowledge, not from the date the file reached your desk, and the client's knowledge is discoverable.
- Trap. A nine-month-old Slack message flagging the defendant will surface as an exhibit to the opposition. Find it now, not then.
[ ] Pull the registration record and confirm the registration number, class, identification of goods, filing basis, § 8 and § 15 status, and recorded chain of title.
- Authority. 15 U.S.C. §§ 1057(b), 1065, 1115(a)-(b).
- Trap. An unrecorded assignment is a standing problem. Do not discover it at the hearing.
[ ] Order certified copies of the registration and of the assignment records from the USPTO the same day.
- Why. A certified copy carries the § 1057(b) presumptions cleanly; a TSDR printout invites an argument you do not need.
[ ] Compare your identification of goods as written against the accused product, side by side.
- Trap. Counsel compare the client's aspirations to the accused product. Brindle's registration covers "coffee; coffee beverages," and Halcyon's product is a canned coffee beverage. Had it covered only "unground coffee beans," Brindle would be litigating relatedness on a two-week record.
[ ] State the harm story in two sentences containing a named person, a dated event, and a consequence. If you cannot, you do not have a motion yet.
- Authority. Herb Reed Enters., LLC v. Fla. Entm't Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013) (harm findings "grounded in platitudes rather than evidence" cannot support relief).
[ ] Apply the timing rule and write the answer in the file memo: under six weeks from knowledge, move; six weeks to three months, move and explain every week; three to six months, move only against a dated escalation; over twelve months, do not move.
- Authority. Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985); Benisek v. Lamone, 585 U.S. 155, 159 (2018) (per curiam).
[ ] Decide the cease-and-desist question deliberately, in writing.
- Why. The letter converts every dollar the defendant spends after receipt into self-inflicted hardship, Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 596 (3d Cir. 2002) — and it also documents your knowledge date. Send it only if you would be content to file two weeks later. Drafting is covered in Sending an Effective Cease-and-Desist Letter and the Trademark Cease-and-Desist Letter — Template.
[ ] Get written budget authority for a range before staffing.
[ ] Issue the litigation hold to the client today.

Trap. Sending the demand letter and waiting for a response. More trademark preliminary injunction motions die here than anywhere else. Put a hard deadline in the letter, calendar it, and file when it passes. Brindle's counsel sent three paragraphs on 6 March with a 10 March deadline and filed on 18 March regardless of the answer.

Brindle, day 2. Knowledge date 4 March, documented by the distributor email. Incontestable registration, direct goods overlap, an identified harm story with named consumers. Decision: file within fourteen days.

Phase 2 — Forum, judge, and the rules you must read before drafting

[ ] Confirm jurisdiction and venue: 15 U.S.C. § 1121(a) and 28 U.S.C. § 1338(a) for the Lanham Act counts, 28 U.S.C. § 1367 for the state unfair competition counts, 28 U.S.C. § 1391(b) for venue.
[ ] Choose among available districts on three criteria in this order: the circuit's formulation of the standard, the district's emergency practice, and time to hearing and to trial.
- Why. The Second and Ninth Circuits allow a serious-questions route where the balance tips sharply; the Fourth does not; the Third makes success and irreparable harm conjunctive gateways.
[ ] Read, in this order and before drafting: Fed. R. Civ. P. 65; the district's local civil rules on injunctions; its CM/ECF administrative procedures; and the assigned judge's individual practice rules.
- Trap. Districts differ in ways that cost a day. Some prohibit bringing the application by order to show cause at all (see, e.g., E.D. Mich. LR 65.1). Some require a TRO application to be accompanied by an OSC fixing the hearing (see, e.g., N.D. Cal. Civ. L.R. 65-1(c)). Some dictate which blanks the judge fills in (see, e.g., E.D. Cal. L.R. 231).
[ ] Extract and put on a one-page cover sheet: page limits, font and spacing, margins, caption requirements, courtesy-copy rules, PDF size caps, and whether a conferral certificate is required.
- Example. In the Southern District of Florida a motion with its incorporated memorandum may not exceed 20 pages and a reply 10, S.D. Fla. L. Civ. R. 7.1(c)(2); text must be 12-point with 1.5 spacing and one-inch margins, L. Civ. R. 5.1(a)(4); electronic files must be text-searchable PDFs segmented under ten megabytes, S.D. Fla. CM/ECF Guidelines § 3G(3); and no good-faith conferral certificate is required for injunctive-relief motions, L. Civ. R. 7.1(a)(3). Districts in New York require the judges' initials in the caption, S.D.N.Y. & E.D.N.Y. L. Civ. R. 11.1(a).
[ ] Call the deputy clerk before filing an emergency application and ask the judge's actual preferences.
- Why. Fifteen minutes on the telephone routinely saves three days in the queue. Ask whether the proposed order should be emailed in Word, whether hard copies are wanted, and whether the judge has a standing preference against ex parte relief.
[ ] Retain local counsel and file the pro hac vice application the same day if you are not admitted.
[ ] Calendar the clerk's duty under 15 U.S.C. § 1116(c) to notify the Director of the USPTO within one month of filing, and confirm who sends it.

Brindle. Halcyon is a Colorado corporation, but its cans are on Oregon and Washington shelves. Brindle files in the District of Oregon: Ninth Circuit standard, home-forum declarants, and the confused distributor within a short flight. Colorado was available and worse.

Phase 3 — The evidence package (days 3-12)

[ ] Assign each evidence category to a named person on day three and run them in parallel.

| Evidence | Owner | Realistic time | Cost | Proves | | --- | --- | --- | --- | --- | | Certified registration and assignment chain | Paralegal | 2-5 days | $15-$100 per copy | Validity, ownership, constructive notice | | Both parties' packaging and specimens | Client and investigator | 3-7 days | Purchase cost | Similarity in commercial context | | Dated, hashed screen captures | Litigation support | 1-3 days | $500-$3,000 | Online use, ad copy, listings | | Shelf and channel photographs | Field sales | 3-7 days | Nominal | Proximity of the goods | | Distributor and retailer declarations | Sales leadership | 5-10 days | Relationship cost | Trade confusion | | Customer inquiries and complaints | Support inbox export | 2-4 days | Nominal | Actual confusion, with names | | Investigator purchases and report | Outside investigator | 4-10 days | $2,500-$12,000 | Point-of-sale confusion | | Sales, ad spend, margin | CFO | 3-7 days | Nominal | Commercial strength and scale | | Consumer survey | Survey expert | 3-5 weeks | $35,000-$90,000 | Confusion, statistically |

[ ] Export and search the support ticketing system, the CRM, the returns log, and the general-inquiry inbox for the accused mark and its obvious misspellings, and print the hits with headers intact.
- Why. Six emails with real names and dates persuade a judge more reliably than a survey, because the judge does not have to trust a methodology to believe them.
[ ] Capture every web page, ad, listing, and social profile with a tool that records the URL, the timestamp, and a hash, and have the operator sign a certification.
- Authority. Fed. R. Evid. 902(13)-(14) permit self-authentication of machine-generated records and copied electronic data on a qualified person's certification; Fed. R. Evid. 201 supplies the faster route for archived pages.
- Trap. A screenshot pasted into a brief with no capture metadata invites an objection you can eliminate for $500. Serve the certification with the motion.
[ ] Engage a professional investigator, scope the assignment in an engagement letter, and require names, dates, store addresses, receipts, photographs, and exact words.
- Authority. Compare Bausch & Lomb, Inc. v. Nevitt Sales Corp., 810 F. Supp. 466 (W.D.N.Y. 1993), and Cottman Transmission Sys., Inc. v. Melody, 851 F. Supp. 660, 668 (E.D. Pa. 1994) (crediting investigator evidence), with Reebok Int'l Ltd. v. K Mart Corp., 849 F. Supp. 252, 267 n.17 (S.D.N.Y. 1994) (rejecting "meager, vague" testimony about unnamed customers in unnamed stores).
- Trap. The ethics line moves once the defendant is represented. ABA Model Rule 4.2 bars contact with a represented person and Rule 8.4(a) stops you doing through an agent what you may not do yourself. Ordinary consumer test purchases have generally been permitted, Gidatex, S.r.L. v. Campaniello Imports, Ltd., 82 F. Supp. 2d 119 (S.D.N.Y. 1999), but do not let an investigator elicit statements about the dispute, and do not record where state law requires two-party consent.
[ ] Decide the survey question on day two, not day twelve, and write the decision down.
- Why. A rushed survey with a defective universe is worse than none — it hands the defendant a clean narrative about your judgment. Design and attack considerations are in Commissioning and Attacking a Trademark Survey and the Trademark Survey Design and Challenge Checklist.
[ ] If you are asserting anything other than a registered word mark, add the extra proof to the schedule now: priority and territory for common-law rights, secondary meaning and non-functionality for trade dress.
- Cross-reference. Common-Law Priority Evidence Checklist, Establishing and Proving Common-Law Trademark Rights, Secondary Meaning Evidence Checklist, and Trade Dress and the Functionality Doctrine.
[ ] Stop at six to eight strong exhibits. Sixty mediocre ones read as a weak case.

Brindle, days 3-12. Certified registration and § 15 acceptance; twelve cans bought by an investigator at four convenience stores in Boise and Bend with receipts and shelf photographs showing BRINDL cans two facings from BRINDLE bottles in the same cold case; nine consumer emails and two retail-buyer inquiries; a declaration from the Boise distributor; three years of sales and advertising figures; and hashed captures of Halcyon's site, its Instagram account, and a Google Ads result served on the query "brindle cold brew." No survey.

Phase 4 — The declaration package (days 5-14)

[ ] Use unsworn declarations under 28 U.S.C. § 1746 — no notary — with the statutory language reproduced exactly, dated and signed.
[ ] Verify the complaint under the same section.
- Why. A verified complaint satisfies the "verified complaint" branch of Fed. R. Civ. P. 65(b)(1)(A) and makes every well-pleaded fact evidence.
[ ] Build five declarants, not nine: an executive, the sales or channel lead, finance, the investigator, and counsel. Add a survey or industry expert only if you have one.
- Trap. More than seven declarations and the judge stops reading. Length discipline: 8-14 pages for the executive, 2-4 for finance, 3-6 for counsel.
[ ] Open every declaration with a personal-knowledge paragraph, use short numbered paragraphs, and key each exhibit by letter with a sentence describing it.
- Why. The reply brief and the court's order will cite these by paragraph number.
[ ] Strike every legal conclusion. A marketing director does not swear that confusion is "likely."
[ ] Write the harm declaration around four concrete jobs: a quality differential, named actual confusion in the consumer's own words, a loss-of-control theory anchored in written quality-control obligations, and a declined business opportunity showing the brand position is a managed asset.
- Authority. adidas Am., Inc. v. Skechers USA, Inc., 890 F.3d 747, 754-56 (9th Cir. 2018) (crediting proof of a managed scarcity strategy and rejecting reputational harm resting on inference).
- Trap. "Brindle will suffer irreparable harm to its goodwill and reputation and will lose control over its brand" proves nothing. Replace it with the ingredient panel, the eleven dated inquiries, the twelve distribution agreements containing cold-chain and date-code controls, and the $2.1 million co-packing offer Brindle declined in 2024.
[ ] Put an affirmative delay paragraph in the moving papers with every date and every reason.
- Why. Courts credit investigation, correspondence, and settlement efforts — but only from a declaration, and only if it is in the opening papers. Raising it first in reply looks defensive and is often too late.
[ ] Have counsel's declaration carry exhibit authentication, the notice efforts, and, if a TRO is sought, the Rule 65(b)(1)(B) certification.
[ ] Make each declarant read every sentence aloud before signing.
- Why. This catches more errors than any other step, and a declarant who has read it aloud survives cross-examination.

Trap. Letting the client draft its own declaration. You will get four pages of company history, three paragraphs of adjectives, and nothing a court can make a finding on. Interview, draft, circulate for correction, sign.

Phase 5 — The complaint, motion, and memorandum (days 6-14)

[ ] Plead the counts you will actually use: § 32 infringement, 15 U.S.C. § 1114; § 43(a) unfair competition and false designation, § 1125(a); state statutory and common-law claims; and, where the facts support them, dilution under § 1125(c) or cybersquatting under § 1125(d).
- Cross-reference. Trademark Dilution Claim Checklist and Cybersquatting and the ACPA. A § 43(c) or § 43(d) count carries the same § 1116(a) presumption on a very different merits showing.
[ ] Plead an equitable accounting of profits under 15 U.S.C. § 1117(a) if you may ever want an asset freeze.
- Why. In an action solely for money damages a court cannot enjoin the disposition of assets before judgment. The equitable claim is the hook. See Proving Trademark Damages and Disgorging Profits After Romag.
[ ] Draft the memorandum to this allocation, in a 20-to-25-page budget: introduction 2; facts 5-7; standard 0.5; likelihood of success 7-9; irreparable harm 3-4; balance of hardships 1.5; public interest 0.5; scope, bond, and relief 1.5.
[ ] Put the side-by-side image of the two products and one customer email on page two.
[ ] Cite a declaration paragraph and an exhibit letter on every factual sentence.
[ ] Weight the confusion factors rather than marching through all of them.
- Why. Equal space for eight factors reads as though you do not know which ones you win. In Brindle three carry it: near-identity of the marks, identity of the goods, and eleven documented instances of actual confusion in three weeks. The framework is in Trademark Infringement: Proving Likelihood of Confusion.
[ ] Invoke the Trademark Modernization Act presumption in one paragraph — 15 U.S.C. § 1116(a) — then spend three proving harm as though it did not exist.
- Authority. Nichino Am., Inc. v. Valent U.S.A., LLC, 44 F.4th 180, 185-89 (3d Cir. 2022) (the presumption shifts the burden of production only and evaporates on a slight showing).
[ ] Lead the hardship section with the defendant's notice and self-infliction, not with your client's inconvenience.
[ ] State the bond number in the brief. Never leave it blank.
[ ] Prepare and file a Fed. R. Civ. P. 7.1 corporate disclosure statement with the complaint.

Phase 6 — The proposed order (draft on day 4; finalize on day 13)

[ ] Draft the proposed order before the brief, and work backwards from it to determine what you must prove.
- Why. It is the deliverable. Everything else is argument about it.
[ ] Satisfy Fed. R. Civ. P. 65(d)(1) on its face: state the reasons the order issued, state its terms specifically, and describe the restrained acts in reasonable detail without referring to the complaint or any other document.
- Authority. Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam) ("the specificity provisions of Rule 65(d) are no mere technical requirements").
- Trap. "Defendant shall cease infringing Plaintiff's marks" is unenforceable and worthless in a contempt proceeding.
[ ] Name the enjoined designations and use "colorable imitation," tracking 15 U.S.C. § 1127, instead of "any similar mark."
[ ] Tie the enjoined goods to the proven overlap, not to the whole registration.
[ ] Enumerate the channels: packaging, labels, cartons and cases, point-of-sale and shelf material, websites, mobile applications, social accounts, keyword purchases, ad copy, landing pages, marketplace listings, trade-show materials, domains, subdomains, and handles.
- Trap. A defendant that stops printing cans and keeps running the search ad is complying with a poorly drafted order. See the Keyword Advertising Compliance and Enforcement Checklist.
[ ] Address existing inventory explicitly: no new manufacture or orders; a bounded sell-off window; a sworn inventory within ten days; no new customers and no new states; and what happens to unsold goods at the end, whether destruction under 15 U.S.C. § 1118, relabeling, or a further application.
[ ] Draft the trade notice yourself and attach it as an exhibit to the order, with a deadline and a proof-of-transmission requirement.
[ ] Order the defendant to submit removal requests to marketplaces and platforms; do not purport to order the platforms.
- Authority. Fed. R. Civ. P. 65(d)(2) binds parties, their officers, agents, servants, employees, and attorneys, and persons in active concert or participation who receive actual notice — not strangers. Regal Knitwear Co. v. NLRB, 324 U.S. 9, 13-14 (1945).
[ ] Include the compliance-report paragraph.
- Authority. 15 U.S.C. § 1116(a) entitles you to a written report under oath, within thirty days of service, detailing the manner and form of compliance. Most practitioners forget it; it is the single most useful document you will have if you later move for contempt.
[ ] Separate every mandatory obligation — recall, corrective advertising, domain transfer — into its own numbered paragraph.
- Why. Mandatory relief draws a heightened standard almost everywhere. Separate paragraphs let a court grant the prohibitory relief and deny the rest without redrafting your document.
[ ] Set geography deliberately, and consider whether the defendant is a good-faith remote user.
- Authority. Dawn Donut Co. v. Hart's Food Stores, Inc., 267 F.2d 358, 364 (2d Cir. 1959), and its uneasy application to online commerce; see Where Your Trademark Rights End.
[ ] Add the anti-evasion sentence: plaintiff may apply for modification if the defendant adopts a replacement designation plaintiff contends remains confusingly similar.
- Why. This is what stops BRINDL becoming BRYNDL and making you start over.
[ ] Include bond amount, form, and posting deadline; duration until trial or further order; and a modification-on-changed-circumstances clause.
[ ] Email the order to chambers in Word as well as filing the PDF, if local practice permits.

Phase 7 — The bond (days 10-14, and again at the hearing)

[ ] Read your circuit's rule on whether security is mandatory before you propose a number.
- Authority. Compare Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 (4th Cir. 1999) ("the failure to require a bond upon issuing injunctive relief is reversible error"), with Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (discretion to set a zero bond absent evidence of likely damage).
[ ] As movant, compute the number: the defendant's contribution margin on the enjoined product for the expected duration of the injunction, plus documented unrecoverable marketing commitments, framed as time to a merits ruling rather than forever.
[ ] Offer in the brief to post within three business days.
[ ] As respondent, file a short bond declaration with figures from someone who can be cross-examined: wholesale price, contribution margin per unit, recent weekly volume, finished goods on hand at cost, non-refundable media commitments, and relabeling cost.
- Why. A wrongfully enjoined party generally has no damages action absent a bond, and in most circuits recovery is capped at the bond amount. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 770 n.14 (1983). A defendant that shrugs at the bond has waived its only protection.
- Trap. Do not lead the opposition with rebranding cost. It is discounted as self-inflicted and it concedes that rebranding is possible. Put the numbers in the bond declaration, where they do useful work.
[ ] Engage the surety before the hearing.
- Why. Underwriting takes one to three business days and requires collateral or a corporate indemnity; premiums run roughly 1-3% of the penal sum per year. Confirm the court's approved surety list, or plan on a cash deposit with the clerk.

| Case posture | Typical bond range | | --- | --- | | Counterfeiting or anonymous online sellers | $0-$10,000 | | Holdover licensee or franchisee | $5,000-$50,000 | | Small competitor, regional sales | $25,000-$150,000 | | Established line, national distribution | $250,000-$2,000,000+ | | Pharmaceutical or other regulated product | Frequently seven to eight figures |

[ ] Reserve, on the record, the right to seek an increase if the injunction is extended or expanded.
[ ] If the injunction is later dissolved, move against the security under Fed. R. Civ. P. 65.1 — and be ready to prove the damages, which the rule does not presume.

Brindle. The moving papers propose $75,000, explained as Halcyon's reported wholesale margin on the enjoined SKU for ninety days, with an offer to post within three business days.

Phase 8 — Notice, service, and filing (day 14)

[ ] Choose the vehicle deliberately.

| Vehicle | Notice | Ruling in | When it fits | | --- | --- | --- | --- | | Ex parte TRO | None | Hours to 2 days | Counterfeiting, asset dissipation, domain seizure, evidence destruction | | TRO on short notice | Same-day email or telephone | 1-4 days | A dated, imminent event | | Order to show cause with TRO | The judge sets it | 1-3 days for the TRO; 14-28 for the PI | Most contested trademark cases | | Noticed PI motion | Full | 4-12 weeks | Ongoing but not accelerating harm; survey cases |

[ ] Give notice unless notice itself destroys the relief, and be able to prove that with specific facts.
- Authority. Fed. R. Civ. P. 65(b)(1)(A) requires an affidavit or verified complaint clearly showing immediate and irreparable injury before the adverse party can be heard; ex parte relief is confined to "preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer," Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974).
[ ] If proceeding ex parte, file counsel's written Rule 65(b)(1)(B) certification stating exactly what was done to give notice, or concretely why notice would defeat the order's purpose.
- Trap. Courts vacate ex parte orders for a conclusory or missing certification alone. Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 2006).
[ ] In counterfeiting matters, use the statutory route rather than a general TRO: ex parte seizure under 15 U.S.C. § 1116(d), with its specific findings under § 1116(d)(4)(B), adequate security under § 1116(d)(4)(A), mandatory notice to the United States Attorney under § 1116(d)(2), and a hearing set between ten and fifteen days after the order issues under § 1116(d)(10)(A).
- Cross-reference. Trademark Counterfeiting and the Anticounterfeiting and Border Enforcement Toolkit.
[ ] For a noticed motion, serve the motion and notice of hearing at least fourteen days before the hearing date unless a court order sets a different time. Fed. R. Civ. P. 6(c)(1).
[ ] File the complaint first, pay the $405 civil filing fee, and get a case number.
[ ] Then file, in this order: the motion; the memorandum; each declaration as its own docket entry with exhibits; the proposed order as a separate attachment and by email to chambers in Word; the Rule 65(b)(1)(B) certification if applicable; the Rule 7.1 statement; and the summons for issuance.
[ ] Serve everything on the defendant the same day by every available means — process server, email to every address on its website, certified mail, and known counsel — then file a declaration of service saying exactly what you did and when.
[ ] For foreign defendants and anonymous sellers, request alternative service in the same proposed order.
- Authority. Fed. R. Civ. P. 4(f)(3) permits court-ordered alternative means, and email service has been approved where reasonably calculated to give notice, Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016-18 (9th Cir. 2002). Fed. R. Civ. P. 4(k)(2) supplies jurisdiction over a foreign defendant with sufficient national contacts.
[ ] Fold expedited discovery into the same proposed order rather than filing a separate motion.
- Authority. Fed. R. Civ. P. 26(d)(1) bars discovery before the Rule 26(f) conference absent stipulation or order. Courts apply either the good-cause standard, Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002), or the Notaro factors, Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982). Ask for twelve requests, five interrogatories, one Rule 30(b)(6) deposition, and named Rule 45 subpoenas — not your standard first set.
- Trap. Do not subpoena a platform for message or listing content. The Stored Communications Act, 18 U.S.C. § 2702(a), bars disclosure of content to civil litigants; subscriber and transactional data is a different question. See the Online Brand Protection Toolkit.
[ ] Call the deputy clerk to report that an emergency application has been filed, and deliver courtesy copies in the format the judge requires.
[ ] Do not file at 4:45 p.m. on a Friday.

Brindle. No ex parte facts: Halcyon is a real company at a real address with nothing to destroy. Brindle files an order to show cause with a TRO limited to new shipments, and emails Halcyon the complete package at 8:00 a.m. on the filing date.

Phase 9 — Hearing preparation (days 15-30)

[ ] Ask chambers in writing, in advance, three questions: is the hearing argument only or evidentiary; does the court want live testimony and from whom; and how much time does each side have.
[ ] Prepare two witnesses and no more — the harm declarant and the investigator — with twelve-minute directs aimed at three facts each.
[ ] Request remote testimony in advance if a witness cannot travel.
- Authority. Fed. R. Civ. P. 43(a) permits testimony by contemporaneous transmission for good cause in compelling circumstances with appropriate safeguards. Ask before the hearing, not at the podium.
[ ] Prepare a two-page bench memorandum: the side-by-side image, a dated timeline, and the operative paragraphs of the proposed order.
[ ] Rehearse the five questions you will be asked. What exactly do you want me to order, in words? Why did you wait? What is the harm money cannot fix? What will this cost the defendant, and how do you know? What bond?
[ ] Prepare an answer to Rule 65(a)(2) consolidation before the judge raises it.
- Why. The court may advance trial on the merits and consolidate it with the hearing, but the parties are entitled to clear notice first. Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055, 1057 (7th Cir. 1972). Accept if the record is complete or the case is injunction-only; resist if you want a jury on the legal claims, and say so on the record.
[ ] Bring the evidentiary posture into the room accurately.
- Authority. These proceedings are "customarily informal," Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981), and most circuits allow reliance on evidence that would not survive a trial objection, including hearsay in declarations, see Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984). Do not treat that as license; a judge who thinks your best exhibit is inadmissible at trial will discount it now.
[ ] If the ruling is oral and thin, ask for findings.
- Authority. Fed. R. Civ. P. 52(a)(2) requires findings and conclusions supporting the grant or refusal of an interlocutory injunction; you will need them on appeal under 28 U.S.C. § 1292(a)(1).

Phase 10 — Post-order enforcement and compliance

[ ] Docket five dates the day the order issues: the bond deadline; the § 1116(a) compliance-report date; the trade-notice date; the sell-off expiration; and the thirty-day appeal deadline under Fed. R. App. P. 4(a)(1)(A).
[ ] Post the security by the deadline, in the ordered form, and file proof.
[ ] Serve the order on non-parties whose conduct you need to reach — the co-packer, the distributors, the registrar, each marketplace — with a cover letter identifying the operative paragraphs.
- Authority. Rule 65(d)(2) binds non-parties only on actual notice. An injunction granted after notice and hearing may be served anywhere in the United States where the enjoined party is found and enforced by contempt in the issuing court or where the defendant is found, 15 U.S.C. § 1116(a); § 1116(b) supplies the mechanism for transferring a certified copy of the record to another district.
[ ] Run weekly monitoring for the enjoined designations across marketplaces, ad platforms, and the retail accounts in the record, and keep dated captures.
- Cross-reference. Brand Enforcement Toolkit.
[ ] Read the compliance report closely and compare it against your monitoring.
[ ] On a violation, send a specific, dated notice of non-compliance with a short cure period before moving.
- Why. Most violations are sloppiness, and the judge will ask whether you gave notice.
[ ] If it continues, move for civil contempt and prove by clear and convincing evidence that a valid order was in effect, that the alleged contemnor knew of it, and that it was violated.
- Authority. Good faith is no defense: "The absence of wilfulness does not relieve from civil contempt." McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949). But contempt is unavailable where there is a fair ground of doubt about whether the order barred the conduct, Taggart v. Lorenzen, 587 U.S. 554 (2019) — which is the whole reason Phase 6 matters.
[ ] Ask for a compliance schedule, a per-day coercive fine, and fees. Ask for incarceration only if you mean it.
[ ] If you lost, seek a stay in the district court under Fed. R. Civ. P. 62(d) before going to the court of appeals under Fed. R. App. P. 8(a), on the factors from Nken v. Holder, 556 U.S. 418, 434 (2009), and note that the order is appealable as of right under 28 U.S.C. § 1292(a)(1).
[ ] Convert the ruling into a resolution while both sides still have options — a consent judgment with a permanent injunction, enforceable by contempt without a new suit, or a coexistence and transition agreement with defined fields of use and a phase-out schedule.
- Cross-reference. Trademark Coexistence Agreement — Template and the Trademark Transactions Toolkit. On what the case is worth from here, see the Trademark Monetary Recovery Checklist and the Trademark Remedies Toolkit.

Brindle, resolved. TRO on 19 March limited to new shipments; hearing 6 April; preliminary injunction entered 9 April with a sixty-day sell-off, a $75,000 bond, and a § 1116(a) compliance report; report filed 9 May; consent judgment and a three-year covenant on 22 May. Seventy-nine days from the distributor's email.

Phase 11 — If you are opposing the motion

[ ] Moot what you can before you answer, and say that you did: pull the search-ad campaign, the social handle, and the two most inflammatory web pages.
[ ] Establish the plaintiff's real knowledge date from its trade-press coverage, its social replies, and its own public statements, and build a dated timeline exhibit.
[ ] Argue delay on both theories, because the courts have not settled which governs: that it rebuts the § 1116(a) presumption, and that it is an independent equitable bar.
[ ] Produce evidence, not argument, on irreparable harm.
- Why. Nichino requires a burden of production. The forms that work: the plaintiff licenses the mark on standard royalty terms and has therefore priced the right; its own damages theory is a per-unit royalty; quality parity with no complaints; genuine non-competition in channel, price, and purchaser. A lawyer's brief produces nothing.
[ ] Gather third-party use in ten days — every live registration and application for similar marks in related classes, every domain, every marketplace seller.
- Why. A crowded field shrinks the order even where it does not defeat the motion.
[ ] Raise only the affirmative defenses that resolve on paper: priority and geographic remoteness, descriptive or nominative fair use, abandonment, naked licensing.
- Cross-reference. Raising a Trademark Fair Use Defense, Proving and Defeating Trademark Abandonment, and the Trademark Defenses Toolkit. If the accused goods are genuine, the fight may be material differences rather than confusion; see the Gray Market Enforcement Checklist.
[ ] File a counter-proposed order.
- Why. This is the item most defendants skip and should not. If the judge is going to enjoin your client, you want the judge holding a document that already contains a ninety-day sell-off, a bounded geography, a real bond, and no recall.
[ ] If you were hit with an ex parte TRO, move immediately under Fed. R. Civ. P. 65(b)(4), which entitles you to a hearing on two days' notice, and attack the Rule 65(b)(1)(B) certification first.
[ ] Consider proposing reciprocal expedited discovery and a hearing six weeks out.
- Why. It converts a fourteen-day fire drill into a manageable proceeding, and most judges take the deal.
[ ] Read the demand letter you answered before you file anything, because your answer will be an exhibit. See Responding to a Cease-and-Desist Letter.

Common Mistakes

Waiting for a response to the demand letter. The letter fixes your knowledge date in writing and turns a fourteen-day filing into a ten-week filing.
A harm declaration written in adjectives. "Goodwill," "reputation," and "brand equity" are not evidence. Quality differentials, named confused customers, written quality-control obligations, and declined business are.
Leaving the bond blank. You hand the defendant a free shot at a number ten times what the judge would have set, and you tell the court you have not thought about the defendant's exposure.
Drafting the proposed order last. Draft it on day four and work backwards.
Asking for more than you proved. Nationwide relief on regional evidence, every good in the class on a one-SKU overlap, a recall you never briefed. Judges grant narrow orders willingly and broad ones grudgingly.
Screenshots with no capture metadata. A $500 authentication tool eliminates an objection that can cost you an exhibit.
Filing an unregistered trade-dress motion on a two-week schedule. Secondary meaning and non-functionality do not compress. Either build the record or litigate for money.
Skipping the § 1116(a) compliance-report paragraph. You will want that sworn document if compliance slips.
Ignoring the individual judge's rules. A perfect brief filed the wrong way sits in the queue while the harm continues.

Deadlines at a Glance

| Event | Deadline | Authority | | --- | --- | --- | | Ex parte TRO expires | 14 days from entry; one extension of like duration for good cause or with consent | Fed. R. Civ. P. 65(b)(2) | | PI hearing after an ex parte TRO | "At the earliest possible time," taking precedence over other matters | Fed. R. Civ. P. 65(b)(3) | | Motion to dissolve or modify an ex parte TRO | On 2 days' notice | Fed. R. Civ. P. 65(b)(4) | | Service of a noticed motion and hearing notice | At least 14 days before the hearing, absent a court order | Fed. R. Civ. P. 6(c)(1) | | Hearing on an ex parte seizure order | Between 10 and 15 days after the order issues | 15 U.S.C. § 1116(d)(10)(A) | | Clerk's notice to the USPTO Director | Within one month of filing, and again on judgment | 15 U.S.C. § 1116(c) | | Defendant's compliance report | Within 30 days after service of the injunction | 15 U.S.C. § 1116(a) | | Service of summons and complaint | 90 days after filing | Fed. R. Civ. P. 4(m) | | Answer after service | 21 days | Fed. R. Civ. P. 12(a)(1)(A)(i) | | Notice of appeal from the order | 30 days from entry | Fed. R. App. P. 4(a)(1)(A); 28 U.S.C. § 1292(a)(1) | | Bond posting | As ordered — typically 3-5 business days | Fed. R. Civ. P. 65(c) | | Surety underwriting (practical) | 1-3 business days; premium roughly 1-3% per year | — | | Sell-off window | As ordered — typically 30-90 days | Order |