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We used to have a sliding scale in the Ninth Circuit for analyzing the elements needed to obtain a preliminary injunction, a remedy that’s potentially available in trademark infringement cases.

Just a few years ago, a Ninth Circuit plaintiff needed to show either: “(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.” As the court explained, “These two alternatives represent ‘extremes of a single continuum,’ rather than two separate tests…. Thus, the greater the relative hardship to [the party seeking the preliminary injunction,] the less probability of success must be shown.” See, e.g., Clear Channel Outdoor Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir.2003).

Then came Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), which reversed a Ninth Circuit preliminary injunction decision and seemingly banished the sliding scale — at least to the extent it enabled a plaintiff to obtain a preliminary injunction with only the “possibility” of irreparable harm.


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