Interim in­junc­tions in e-commerce and how to react

An online shop without appealing photos and item de­scrip­tions is unimag­in­able these days. They’re a major part of the e-commerce battle for the best market position – which leads to some providers focusing too heavily on their com­pe­ti­tion. This can quickly lead to photo theft or other types of legal vi­o­la­tions. To recognize this in time, you should regularly take a look at the com­pe­ti­tion and what they’re up to. Legal vi­o­la­tions on the internet have been around for long enough to work their way into law, so if you find any, you can issue an out-of-court warning. If that’s not suc­cess­ful, you can quickly request the interim in­junc­tion. But what exactly is an interim in­junc­tion, and which criteria does your request need to fulfill to obtain one? If the roles are reversed and you’re on the receiving end of an interim in­junc­tion, how should you react?

An interim in­junc­tion, also referred to as a pre­lim­i­nary or in­ter­locu­to­ry in­junc­tion, is a pro­vi­sion­al form of legal pro­tec­tion that takes place before any actual trial pro­ceed­ings. This means that you don’t have to wait for a lengthy court trial to be able to make your legal claim. State courts set forth their own criteria for the issuance of an in­junc­tion, but the federal court criteria are as follows:

• Ir­repara­ble harm
• Like­li­ness of success
• Balance of harms
• Public interest

In e-commerce in par­tic­u­lar, the interim in­junc­tion procedure is an effective means of rapidly coun­ter­act­ing possible in­fringe­ments. As soon as you discover a violation, you should act as quickly as possible. Doing so will also help you to fulfill the main criteria to prove the necessity of your in­junc­tion, and as a result will make your case stronger. Be careful, though, to make sure that you do indeed have a case – if the later trial rules that the in­junc­tion was un­nec­es­sary, the party bringing the suit will be liable for monetary damages.

When applying for an interim in­junc­tion, the specific criteria and process will vary based on the state in which you’re re­quest­ing the leg­is­la­tion. As a general re­quire­ment, though, the ap­pli­ca­tion must be a stand­alone document con­tain­ing very detailed in­for­ma­tion about the nature of the in­junc­tion, and specif­i­cal­ly phrased to outline exactly what conduct is being pro­hib­it­ed, the reasons for its issuance, and any other necessary in­for­ma­tion. The duration of the in­junc­tion must also be clearly stated. This is usually until the date when the case is con­sid­ered by a court.

By nature, an in­junc­tion is merely a temporary measure set in place to save time or spare a claim from harm before a trial can take place. Any claim for in­junc­tive relief must be supported by full evidence, including dis­clo­sure of all facts – not only those directly relevant to or in support of the claimant’s case. Following the duty of dis­clo­sure, if an interim in­junc­tion is granted then the claimant must agree to notify the defendant as soon as possible. Failing to notify the subject of the in­junc­tion will result in failure of the in­junc­tion itself and the nul­li­fi­ca­tion of its validity. Interim in­junc­tions generally equate to a cease and desist order, which prevents further damage to the claimant. Any further claims, such as damages claims, will be decided in the sub­se­quent main court pro­ceed­ings.

As mentioned earlier, there are four basic grounds for the issuance of an interim in­junc­tion. The claimant has to satisfy all four criteria before an in­junc­tion will be granted: like­li­hood of success, potential for ir­repara­ble harm, balance of harm, and con­sid­er­a­tions of public policy.

1. Like­li­hood of success: Based on the merits of the case, it is likely that it will go on to win at trial. This means that when applying for an in­junc­tion, you should be prepared with all required evidence to prove your claim that the activity you’re looking to block would in fact go against the law or cause unlawful harm to your business.
   
   
2. Ir­repara­ble harm: Arguably the most difficult grounds to prove, the potential for ir­repara­ble harm in the absence of an in­junc­tion may or may not presumed. Instead, all evidence must be presented to and con­sid­ered by the court, and many courts tend to conclude that monetary com­pen­sa­tion would be enough to make the claimant whole again. Strong arguments to prove ir­repara­ble harm include the dis­clo­sure of trade secrets, the permanent loss of market shares, or the threat of physical injury without an in­junc­tion (unlikely in e-commerce cases, but still a factor to consider). To prove ir­repara­ble harm, you must also be prepared to prove that other remedies would be in­ad­e­quate – for example, monetary damages. This is es­pe­cial­ly ap­plic­a­ble if there is a question of how capable the defendant is of paying the proposed monetary damages. The nature of your business is also con­sid­ered when de­ter­min­ing ir­repara­ble harm. If you have pre­vi­ous­ly been unwilling to license or have failed to com­mer­cial­ize, your argument will be weakened.
   
   
3. Balance of harms: The grounds of harm weights the possible harm to the claimant if the in­junc­tion is not issued versus the possible harm to the defendant if the in­junc­tion is issued. This takes into con­sid­er­a­tion the possible loss of business and/or money that the defendant could suffer if forced to abandon certain ac­tiv­i­ties or campaigns. These harms will be balanced and ruled upon by a judge when con­sid­er­ing the issuance of an interim in­junc­tion.
   
   
4. Public policy: A difficult re­quire­ment to describe, the con­sid­er­a­tion of public policy is different for each case and will be con­sid­ered dif­fer­ent­ly depending on the available facts. For example, it could be found that some detail present in the case is in violation of a public policy and therefore subject to immediate in­junc­tion. If there are no sig­nif­i­cant public policy con­sid­er­a­tions that are ap­plic­a­ble to the case, then the decision to issue an in­junc­tion will be made only based on the other three grounds.

How can the court respond to your request?

When an ap­pli­ca­tion for in­junc­tion is submitted, the decision is usually made in court during a hearing with all parties present. Most courts will consider cases based on minimal com­pre­hen­sion of facts and witnesses, though judges can call for a more thorough hearing if they feel that they have reason to doubt your claims. The scope of the in­junc­tion following the court’s decision depends on which court and which federal court district the in­junc­tion was issued from – generally, for the ap­pli­ca­tion of an in­junc­tion beyond the state of its issuance, you must go through a federal court in the cor­re­spond­ing ju­ris­dic­tion.

The term “forum shopping” refers to the choice of court, judge, or ju­ris­dic­tion in favor of the plaintiff. Generally, the case is brought in the district where the in­fringe­ment was committed. But with e-commerce, it means that vi­o­la­tions can be committed virtually anywhere within the reach of the internet. In theory, they fall under the ju­ris­dic­tion of every federal court – although, as pre­vi­ous­ly mentioned, this isn’t usually how the order is applied. As a result, the claimant can apply for an interim in­junc­tion in a number of different courts and therefore choose one that will help them gain an advantage over the defendant. For example, some courts require less burden of proof or have more lenient precedent with certain types of in­junc­tion cases. Past judgments on similar cases can give the claimant an in­di­ca­tion of their chances of success, as well as con­sid­er­ably influence the court’s decision. It’s common practice for lawyers to file an ap­pli­ca­tion with several courts at the same time in order to achieve the best possible chances of winning.

Let’s turn the tables: You’ve received an interim in­junc­tion and are charged with a violation for your e-commerce. You could be faced with con­sid­er­able losses. How should you react in this situation? What legal steps must you take to defend yourself in the event of an unlawful in­junc­tion? Are there any ways to have an in­junc­tion annulled?

You are required to comply with the interim in­junc­tion as soon as it has been served to you. Whether or not the applicant’s claims are justified in your opinion is not yet decided at this phase. The expedited procedure is used to obtain a pre­lim­i­nary court order usually without oral pro­ceed­ings. However, if you’re concerned about a re­strain­ing order, you can rest slightly easier with the guarantee that any in­junc­tion found to be wrongly issued will be com­pen­sat­ed by monetary damages from the claimant.

If you believe that the in­junc­tion filed against you is un­jus­ti­fied, it is now your re­spon­si­bil­i­ty to gather as much evidence as you can to prove in court that the issuance was un­nec­es­sary. Remember that to receive the in­junc­tion, the claimant had to prove that their business would be ir­repara­bly harmed by your ac­tiv­i­ties. It may also be helpful to review the precedent of the court where you will be making your argument.

If the main pro­ceed­ings are initiated, the case will be examined in the context of a civil pro­ceed­ing. If the applicant decides against a court case or if the cir­cum­stances have changed, you can apply to suspend the in­junc­tion. If the interim in­junc­tion proves to be un­jus­ti­fied and has been issued un­nec­es­sar­i­ly, you have the right to monetary com­pen­sa­tion. The claimant will be required to reimburse you for all costs incurred as result of the pro­hi­bi­tion, including court costs. After the judgement, there is still an op­por­tu­ni­ty to appeal – although there is no standing Court of Appeals precedent.

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