Companies bringing trademark infringement suits often seek relief from courts to stop the alleged infringer from using their marks. Typically, if the party bringing suit can show the infringer’s use of the mark is likely to cause confusion among consumers, a court will presume irreparable harm to the trademark owner, which is a critical factor in obtaining a court order.

A recent court decision by the 9th U.S. Circuit Court of Appeals departed from the usual analysis, saying irreparable harm could not be presumed. The court said the trademark owner had to offer some evidence of irreparable harm.

Although the court did not quantify what would be a sufficient showing of irreparable harm, the fact that the court would not presume harm is a departure from what has been the standard.  Whether other circuits will follow suit remains to be seen. If this trend continues, trademark owners have a higher burden — they will need to prove harm was suffered before they may obtain a court order to stop an infringer’s use of their marks.