Thursday, July 20, 2006

Irreparable Harm Redux

On June 5th, I did a posting on the roots of the presumption of irreparable harm in copyright law and otherwise ragged on the whole idea as a general presumption. The presumption has been applied in trademark cases, and in the Second Circuit (the source of the copyright presumption too), is traceable to Omega Imp. Corp. v. Petri-Kline Camera Corp., 451 F.2d 1190 (2d Cir. 1971).

On July 6, 2006, Judge Gerard Lynch (SDNY) issued an opinion in SMJ Group, Inc. v. 417 Lafayette Restaurant LCC, 2006 WL 1881768, a trademark case where plaintiff made the mistake of resting on the presumption. Plaintiff had made out a likelihood of success on the merits and apparently thought that was the end of the matter. Not so fast said Judge Lynch, in a scholarly review of the presumption: a perfunctory citation "and reliance on the general presumption of irreparable harm is similarly insufficient. The general presumption is not automatic ... ." The motion for an injunction was then denied.

Praise the Lord; one can only hope others will notice in the copyright area, or that Judge Lynch applies the same reasoning to his next copyright case.

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