In a fact-specific decision, the First Circuit recently held that eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)—which confirmed that the traditional 4-factor injunction test applies to patent cases—also applies to trademark cases. But the circuit court declined to rule specifically whether eBay eliminates the familiar “presumption of irreparable harm” that automatically flows from a showing of trademark infringement.
The basis the court used to sidestep this precise issue was that the record showed that any such presumption was overcome by the movant’s delay and acquiescence. The court also touched on progressive encroachment without actually calling it that, rejecting the movant’s progressive encroachment argument by holding that the nonmovant’s recent changes were “not sufficiently qualitatively different” from the harm flowing from the prior infringement.
The case is Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., No. 10-1396 (1st Cir. May 27, 2011).