Trimble on TROs

Professor Marketa Trimble has posted a paper on ssrn titled Temporary Restraining Orders to Enforce Intellectual Property Rights at Trade Shows: An Empirical Study, 83 Brooklyn Law Review __ (forthcoming 2018).  Here is a link to the paper, and here is the abstract:

Infringements of intellectual property (“IP”) rights by exhibitors at trade shows (also called trade fairs or exhibitions), such as infringements committed through exhibitions of or offers to sell infringing products, can be extremely damaging to IP right owners because of the wide exposure that trade shows provide for infringing IP; the promotion of the infringing IP and the contacts made by infringers at trade shows can facilitate further infringements after a trade show that can be very difficult for IP right owners to prevent. IP right owners therefore seek to obtain emergency injunctive relief to stop trade show infringements immediately — if possible, during the trade show itself. In the United States, the relief that courts issue in these situations is typically a temporary restraining order (“TRO”). This article reviews the law and practice of TROs requested and issued for trade shows and reports original empirical findings about the practice at the U.S. District Court for the District of Nevada — the court that issues TROs for trade shows that take place in Las Vegas, Nevada, a major international trade show center. Based on an analysis of the law and practice, the article argues that in the context of trade shows, current law on injunctive relief in IP cases relegates a TRO to a position as a tool that is available only against foreign infringers who have infringed IP rights before the trade show in question. While there may be multiple reasons why TROs issued for trade shows often target foreign infringers, current TRO law might be a contributing factor to the high percentage of trade show-related TROs issued against foreign infringers. The limited availability of TROs for trade shows is problematic because it leaves IP right owners without access to emergency relief in situations other than those involving pre-existing infringements by foreign infringers. Absent a change in the current law, alternative dispute resolution mechanisms may offer a route to more accessible emergency relief at trade shows.

I read a version of this in draft, and I thought it was quite good.  For me the principal takeaway point was that the general problem with TROs is that they are available only for emergency situations, but in order to obtain a TRO the movant has to provide among other things a detailed evidentiary basis of irreparable harm, which presumably is very difficult to do in a genuine emergency.  Some deserving cases therefore don't result in TROs.  Moreover, I suspect the problem might get worse before it gets better, in view of recent Federal Circuit cases (Nichia v. Everlight, Amgen v. Sanofi; see discussion here and here) that read eBay as requiring the movant to prevail on all four factors to obtain an injunction (rather than, as under a  traditional equitable approach would have it, four factors to be balanced and considered, such that weak or nonexistent evidence on one factor could be compensated for by stronger evidence on another).  Thus, a traditional approach as I understand it might not require such a detailed showing of irreparable harm if the balance of hardships weighed very strongly in favor of the IP owner (and perhaps the balance would weigh in favor of the IP owner if it was required to post a meaningful security bond).  But under eBay and Winter as understood by the Federal Circuit, I think it will become even more difficult to get a TRO (or other form of injunctive relief).