Ferring Pharmaceuticals v. Watson Pharmaceuticals

Court

U.S. Court of Appeals for the Third Circuit

Our Position

The court should hold that a showing of likelihood of success under the Lanham Act continues to give rise to a rebuttable presumption of irreparable harm and that such a presumption is not inconsistent with the Supreme Court’s decisions in eBay Inc. v. MercExchange and Winter v. Natural Res. Def. Counsel, Inc. This longstanding presumption remains appropriate in Lanham Act cases because the injury that results from false advertising and trademark violations is inherently unquantifiable and, as such, irreparable.

Outcome

The court held that the presumption of irreparable harm—which traditionally has been applied following a showing of a likelihood of success on the merits in trademark and false advertising cases—no longer applies. INTA has urged the Supreme Court to grant certiorari in the Herb Reed case (see above) so that it can resolve the conflict among the lower courts on this issue, and reinstate the principle that irreparable harm can be presumed in Lanham Act cases upon a showing of a likelihood of success on the merits. 

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