Did eBay Irreparably Injure Trademark Law?

This Article argues that, while the Supreme Court's holding in eBay v. MercExchange was a good—indeed, great—development in patent and copyright law, trademark is different. The purposes of trademark law—and whom it benefits—should lead us to treat trademark injunctions differently than patent and copyright injunctions. Further, trademark courts have misinterpreted eBay, treating each of the four factors the Court enumerated as a requirement rather than a consideration. That is a particular problem in trademark law, where proof of future injury can be elusive.

And perhaps most remarkably, courts have expanded eBay in trademark cases at the same time they have denied damages relief, with the result that trademark owners can and do win their case only to receive no remedy at all. The result is a very real risk that courts will hurt rather than help consumers by allowing confusion to continue. eBay is about the application of equity. This Article will argue that trademark cases should take account of the true equities of trademark cases, not simply cement the eBay factors into a rule. Doing so will not mean that trademark owners always win injunctions, but it should make it more common, at least in the core cases in which confusion is a real risk.

And doing so will remain true to the core insight of eBay , which is that context matters.