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Injunctive relief consists of court orders compelling (mandatory injunction) or prohibiting (prohibitory injunction) specific acts. The power to grant injunctive relief stems from English equity courts.

Temporary restraining order[]

A temporary restraining order (TRO) is a short, informal injunction that is issued to maintain the status quo pending the issuance of a preliminary injunction in an emergency situation or where delay may lead to damage of person or property.

Preliminary injunction[]

A preliminary injunction is designed to maintain the status quo pending a trial. The test applied to determine the proprietary of issuing a preliminary injunction differs from one federal circuit to another.

A plaintiff seeking a preliminary injunction must establish that: (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest.[1] A preliminary injunction is an extraordinary remedy never awarded as of right. [2] In each case, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.”[3] Because it issues before liability is determined, a preliminary injunction is considered “one of the most drastic tools in the arsenal of judicial remedies.”[4]

While the decision of whether to issue an injunction lies with the sound discretion of the District Court, that "discretion must be exercised consistent with traditional principles of equity."[5] Where a court fails to properly apply and assess each of the four traditional factors, its decision must be reversed.[6]

Application to expressive works[]

There are profound First Amendment interests involved where a court is asked to enjoin the publication of expressive or creative works.[7]

Permanent injunction[]

A permanent injunction is issued after a trial on the merits and are designed to provide final and complete relief. To grant relief on a motion for a permanent injunction a plaintiff must establish (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.[8]

"[T]he decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts."[9] Further, the U.S. Supreme Court "has consistently rejected invitations to replace traditional equitable considerations with a rule that an injunction automatically follows a determination that a copyright has been infringed."[10] As stated in Chief Justice Roberts's concurrence, the "historical practice" of granting permanent injunctive relief in most instances after the establishment of infringement "does not entitle a patentee to a permanent injunction or justify a general rule that such injunctions should issue."[11]

Permanent injunctions prohibiting future infringement play a critical role in protecting the exclusivity that allows a patentee to reap the market reward for its invention. Following a finding of infringement, an injunction preserves the patentee's exclusivity going forward. Just as importantly, the threat of an injunction creates a significant deterrent to infringement, which allows patentees to obtain the full market reward for the invention, supported by an exclusive market position, without costly litigation.[12]


  1. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374 (2008) (full-text).
  2. Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2218-19 (2008) (full-text).
  3. Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987) (full-text).
  4. Hanson Trust PLC v. SCM Corp., 774 F.2d 47, 60 (2d Cir. 1985) (full-text).
  5. eBay, Inc. v. Mercexchange L.L.C., 547 U.S. 388, 394 (2006) (full-text).
  6. See Winter, 129 S.Ct. at 375-81; eBay, 547 U.S. at 394.
  7. See, e.g., Vance v. Universal Amusement Co., 445 U.S. 308, 315-16 (1980) (full-text) ("[The] burden of supporting an injunction against a future exhibition [of a motion picture] is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication."); see also Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984) (full-text); Metropolitan Opera Ass'n v. Local 100, 239 F.3d 172, 176 (2d Cir. 2001) (full-text) (internal citation omitted)).
  8. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (full-text).
  9. Id. at 1841.
  10. Id. at 1840.
  11. Id. at 1841 (Roberts, C.J., concurring).
  12. The Evolving IP Markeplace: Aligning Patent Notice and Remedies with Competition, at 5.