When Does a Preliminary Injunction for IP Infringement Make Sense?

The communities of Minneapolis and St. Paul are full of entrepreneurs passionate about their creative endeavors. Unfortunately, other parties may try to capitalize on your great ideas — your art, writing, or branding — to build up their businesses. Or another business might even unintentionally use a name or logo that is so similar to yours that consumers won’t know the difference. If you discover another party is trying to profit off of your hard work, or even innocently using a brand or marketing that is confusingly similar to yours, you’ll understandably want to do whatever you can to stop these infringers right away. A court can order them to stop, but lawsuits take time. While the case works its way through court, though, you could ask for a preliminary injunction to stop the alleged infringing activity until the case is resolved in court.

However, courts don’t automatically grant these preliminary injunctions. They can only issue those temporary orders after considering several factors:

  • How likely you are to win your case in the end;
  • Whether you will suffer irreparable harm if the injunction isn’t granted;
  • The balance between that harm to you and the harm the injunction might cause the defendant; and
  • The public interest.

Because these “Dataphase” factors (so-named for the case that laid them out in 1981) guide every Minnesota federal court’s decision on preliminary injunction, they should guide your decision on whether to invest time and money in asking for the injunction.

Let’s take a look at the two key factors you and your lawyer should weigh when considering a preliminary injunction.

Are You Likely To Prevail?

Courts view this first factor — the likelihood of success on the merits of your claim — as the most important. But that doesn’t mean you have to prove your entire claim at the outset of your court case. You don’t even have to prove that you have a better than 50 percent chance of winning. You do have to convince the court that you have a “fair chance of prevailing.” Jet Midwest Int’l Co. v. Jet Midwest Grp., LLC, 953 F.3d 1041, 1044 (8th Cir. 2020).

So before you ask the court for a preliminary injunction, you and your lawyer should look at how strong your claim is at that moment. Do you have enough evidence to convince a judge there is at least a “fair chance” that you will win in the end?

You’ll Suffer Irreparable Harm if the Infringing Activity Continues

Sometimes infringement could damage your reputation or irreparably confuse or mislead consumers about your products or business if it is allowed to go on. Courts don’t usually issue preliminary injunctions just because your business might lose money from the infringement; they issue injunctions to prevent damage that can’t be remedied by an award of monetary damages. If, for example, the infringing party flooded the market with a product that was clearly based on your copyrighted work, your trademarks or trade dress, it could lead to public confusion, or even the erosion of public trust and goodwill — especially if the competing product was inferior and caused consumers to lose faith in your product and your business. A preliminary injunction can put a halt to that infringement; even though this suspension is temporary, it may be enough to mitigate the potential harm.

Be Prepared for a Fight

Preliminary injunction motions almost always happen quickly — and that means a lot of work for you and your lawyer to build your argument in a short time. That adds to the up-front cost of a lawsuit, but if you have a solid claim and are ready to invest the time and money, a preliminary injunction may be worth the investment. Securing the injunction protects your IP and business while the case is pending, stemming the harm. The injunction can set the stage for serious and meaningful settlement talks. Winning a preliminary injunction is a signal you have a strong case; according to one study, “in cases in which the court granted a plaintiff’s motion for preliminary injunctive relief, the plaintiff prevailed in 84 percent of the corresponding final judgments.” Aware of that risk, the infringer may rather settle than spend more money on the lawsuit. If you are ready to invest in this legal battle, discuss your goals with a trusted intellectual property attorney to determine the best path forward.


Want to learn more about how preliminary injunctions may impact your intellectual property case? Call the dedicated Minneapolis IP Law attorneys at Rubric Legal LLC at (612) 465-0074 today to get started.

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