By longstanding tradition, obtaining injunctive relief by a court granting or denying equity is subject to the retribution test: irreparable harm, inadequate legal relief, balancing suffering between the parties, and public interest. In eBay v MercExchange, the US Supreme Court unanimously ruled that these traditional factors apply no less in patent disputes than in other disputes. "Classification rules," the court said, do not place patent prohibitions in the law. Instead, district courts exercising their discretion must use the same principles: those "historically employed by the court's equity."

The text of the court's opinion in eBay occupies only four pages of the United States Report. It is a simple and intuitive analysis, and the court intended no more than to reiterate "traditional legal and upholding considerations of fairness." "But as an inadvertent, mere opinion. The lower court had difficulty defining the restraints of Starch and eBay Foods. Does the decision apply to preliminary as well as permanent injunctions? Does it overturn the general approach to irreversible damage in nature and wanton Does the act represent patent or copyright infringement? What about a trademark case? Or, for that matter, does the act represent a false advertising case?

Courts and commentators have been grappling with these issues for the past four years or so. In the context of the discussion, which focused on a certain issue and was subject to relatively little attention—the eBay effect in the false advertising ban, in particular—the irreparable harm standard is presumed to arise from a specific type of false claim.

In our view. Come on, eBay shouldn't be upset by reading the false advertising settlement practice case, which is to table the assumption that at least some false claims caused irreparable harm, merely shifting the burden of proof of rebuttal to the advertising and minimal similarity to the "classification rules." Injunction is patented by eBay. Furthermore, as a matter of theory, there is no reason why the rules for obtaining injunctive relief in patent cases should automatically apply to cases of false advertising. Legal protection of patents and copyrights necessarily involves a balance between inventiveness and invention. On the one hand, there is no similar balance between false advertising and private interests harming public interests. ** Competitors of interest in disseminating genuine commercial claims. Another interest in advertising is only because it wants to speak. When an interest in "weight issues" is false, it may be commercial speech that is prohibited by the Constitution. First Amendment. "This principle of unbalanced interests, combined with the relevant issue of proof, usually in the case of irreparable harm, lawyers favor false advertising in favor of maintaining a rebuttable nature of irreversible harm, with the presumptive burden of proof shifting to the false advertiser.

EBay and False Advertising

As for false advertising cases, courts have long raised at least certain kinds of false advertising to a presumption of irreparable harm, for example, and many courts have held that it cannot. Reparable harm may be presumed when a "misrepresentation" is made in the comparative advertising context between the plaintiff and the defendant's product. "False comparison claims against a competitor's product," must reduce the value of the product in the minds of consumers, "and such reputational harm typically does not warrant quantitative damages alone. Other courts have gone further and considered falsehoods Advertising presumptively all causes irreparable harm, because "it is almost impossible to establish precise economic consequences" of "intangible harm, such as: harm to reputation, loss of goodwill," the reason for false advertising. p>

The eBay decision has not resulted in any widespread irreparable-harm cases of self-intentioned false advertising. Most courts have simply continued to apply the presumption, without even stopping to consider the potential impact of eBay or even North American medical cases. Some skepticism was thrown at the trademark context assumption, which was contented to assume that the irreparable-harm continued to apply to false presumptions in contrast to advertising, and noted only in a footnote that the court was not required to address the potential impact of false advertising on eBay in that case. case. Here it appears that a district court decided to revert to the presumption of essentially irreversible harm to false advertising against eBay. In the text's simple analysis, the court simply "drop[d]" the presumption in the absence of post-eBay. "The authority on binding and simulation.

"The second lineup looms large in the circuit's climate, however, with a presumption of continued survival under any circumstances," it says in a false-advertising context or any other area.

For Salinger's side, it is not surprising that most courts have continued to apply the presumption of irreparable harm in the case of eBay's false advertising. For starters, there is little presumption of similarity with the "classification rules" reviewed and rejected in eBay's decision. The federal circuit holds that a permanent order must be issued upon a finding of patent infringement, subject to an exception only in "rare instances" where "negative injunctive relief" is necessary, "to protect the public interest." This rule is one A complete abandonment of the traditional claim test and its practical effect is conclusive, imposing a conclusive presumption of three or four traditional harms, factors—irreparable inadequacy, a balancing of factors—irreparable factors—hardships—while rendering public-interest all equally irrelevant to most " "Exceptional" circumstances and "what the public needs"

It is useless to apply to cases of irreparable harm. There is no absolute or bright line of defense in cases of false advertising. They simply adopt the classical proof assumption to "shift the burden of proof" on the truth or falsity of a demonstration. The basis for such an assumption is common sense conclusion—arrived over experienced cases—that false-advertising false contrast advertising almost invariably reduces a product's reputation by deceptive comparisons. Because the "precise economic consequences" of that kind of injury can almost never be proven to any reasonable certainty, the presumption shifts to the burden of proof of appropriate false advertising to show that damages would be an adequate remedy. At the same time, presumptive transfer costs are also collected and presented to parties engaged in false advertising, and these increased burdens on false advertisers can eliminate the beneficial effects of false claims.

Presumably, it also has the effect of interim relief, making it a more feasible plaintiff's choice in cases of false advertising. The key to quick relief is to prevent a false advertising campaign that damages the value and goodwill built upon the plaintiff's brand. Time pressure may not afford the plaintiff a chance to collect detailed evidence of irreparable harm before going to court. If a plaintiff is forced to wait for concrete evidence of reputation or good faith injury, swift preliminary injunctive relief will become effective without false advertising in the case. The irreparable harm is so false that it is necessary for advertising campaigns to stop in their nascent stage.

Irreparable harm is also a piece of evidence conceivable with many others that courts have applied in cases of false advertising. For example, the advertiser's intent, well-settled to deceive, gives rise to a "presumption rebuttable to consumer confusion relief < any liability of the plaintiff to the Act before presenting evidence of possible confusion." The thinking behind this assumption is that "the advertising message is often not successful" Engineers anticipate projects, especially when they are professionally designed. "Similarly, the court, who came under the doctrine, acknowledged that certain "familiar exaggerations" are most common, but "almost everyone can be regarded as being what they are capable of. Discounted by Who. Literal misstatements also give rise to an actual fraud, and the burden of presumption shifts to the defendant to the contrary.

These rules, no less than the assumption of irreparable harm, developed over time, through case-by-case adjudication. Like most legal rules that are based on precedent, they slowly After the rise of the law, the first few judges and then more and more, until they became sacred principles. No one would suggest-and no one suggested-that eBay would question the merits of these generally applicable proofs of false advertising. Case. There is little reason to treat something like a rebuttable presumption of irreparable harm any differently.

Indeed, despite Salinger, the Supreme Court's eBay opinion was, if anything, unanimous in its resolution. In the practice of changing false advertising cases, eBay's district court applied for a presumption of essentially irreversible harm, but found that the presumption was rebutted. Notably, eBay appealed to the Supreme Court in both federal circuits and challenged the claim. The presumption of irreversible harm in nature and of the district court's injunctive relief is rebuttable.

However, while the Supreme Court rejected the Federal Circuit's rule outright and accepted considerable efforts to criticize other aspects of district court decisions, the Supreme Court did not in any way criticize district courts for their use of rebuttable presumptions of essentially irreversible harm. Rebuttable assumptions, including cases of self-inflicted false advertising and unfairness, have been read back and taken back to eBay for auction.

But even if, as many courts still maintain, the rebuttable presumption of essentially irreversible harm should no longer apply in patent and copyright cases, there are good reasons to maintain the presumption of false advertising in the context of false advertising. Patent and copyright laws require a careful balancing of interests, aiming to encourage the development of inventions and creative works and vigorously enforce intellectual property rights, while preserving a robust public domain through which people can access valuable innovations. False advertising laws—much like trademark law—include no analogy regarding specific examples on the balance of the stock market.

It is never in the public interest to deceive consumers. “[B]y nature of “false advertising” harms the consuming public” and deprives it of accurate information relevant to its purchasing decisions. False comparative advertising, in particular, entails not just the plaintiff's private interests, but also the public's "strong interest in eradicating false advertising from the market for its brand reputation." Recognizing these key conduct interests themselves, its text reflects a "Congress The policy "strongly" encourages[s] commercial companies to seek to obtain injunctive relief both to remedy their respective private harms and "to serve as fictional vicarious avengers of consumer rights." "The denial of injunctive relief after a finding of false advertising deception will only allow "the continued penetration of public discourse, thereby "undermining, rather than enhancing, the goal of protecting consumer conduct."

It is in the interest of both parties Having been burdened by plaintiffs and the public, advertisers have only their own interest in continuing to infringe on misleading advertising. That interest should totally get zero weight as a fair consideration. Wrongful conduct is prohibited only in commercial speech, which is an expression that does not receive any First Amendment protection and "would be completely prohibited." As a result, unlike patent and copyright cases, once made A case could be taken of the plaintiffs' case of false advertising, and the court had no need to resort to any specific instance on the balance of the stock market before granting injunctive relief. Injunctive relief should be followed as a matter of course when consistent with "traditional practice."

To be sure, upon a motion for a preliminary injunction, a court cannot ultimately make a determination of false advertising. The merit of a probability of success, rather than a certainty, is all that is required. The possibility exists that, if injunctive relief is obtained, the advertiser will make a preliminary injunction against the claims that will ultimately be found to be true and constitutionally protected. It is indeed of significant interest, but it does not justify abandoning a presumption of essentially irreversible harm in a case of false advertising. Instead, the court should focus on both the First Amendment and its analysis of the likely success of preliminary injunctions in the use of public-interest tuning forks. Courts should also seek to ensure that any record of "allegedly false or misleading suppressed speech" is "narrowly tailored to cover only speech most likely to deceive consumers and harm plaintiffs." By adopting these measures, courts can avoid collision protection expressed at the preliminary injunction stage without sacrificing a valuable, presumptive rule like common sense and irreparable harm.

Doctor's advice

While it is clear that our presumption of irreparable harm should continue to apply in cases such as false advertising, the law remains unresolved in this area. So what is the landscape for practitioners in this somewhat uncertain landscape? First, false advertising plaintiffs should continue to rely on the presumption of irreparable harm when seeking to obtain injunctive relief; even in the Second Circuit, they should consider Salinger's The quote is non-binding and should be in the context of the Act's inapplicability to the false advertising ban. In the context of their campaign, they should cite cases where pre-eBay*** knowledge was set, cite the decision to continue to apply post-eBay presumption principles, and confidently argue that false comparison claims give rise to a presumption of irreparable harm.

At the same time, the environment is still very uncertain and relies on presumption alone. Plaintiffs should acknowledge that some courts may require a contrary view assuming that the district court in the Second Circuit may feel influenced by Salinger. Plaintiffs should respond to their proposal for injunctive relief by adding to their proposal any and all evidence of irreparable harm to the Plaintiff's reputation and credibility.

False advertising defendants, on the other hand, should be prepared to object to the scope of a presumption of irreparable harm. While we do not take this view to be advocating that an application for interim relief in a false advertising case should be subject to eBay's global rules all applications for injunctions, including those where there is clear reliance on Salinger. The Advocate may try to sell the court aggressively by reading eBay and Winter v NaturalResources Defense Commission, and insisting that the plaintiff will in fact have irreparable harm and the burden of showing it through competent evidence.

Conclusion

What decided forecloses eBay's case was false advertising with presumed irreparable harm. In issues related to patent injunctions and copyright injunctions on climate issues, as well as overt and covert harms arising from false advertising call for injunctive relief in almost all cases. A rebuttable presumption of essentially irreversible harm makes it difficult to shift the appropriate burden of proof to the question of cult-to-quantify harm and promote the public interest in fair and accurate dissemination of commercial information. eBay's actions should not prevent courts from continuing false advertising cases that apply an essentially irreversible presumption of harm.