Emergency Relief: TROs, Preliminary Injunctions, and Seizures

Common situations.

• A competitor is about to launch a product under a confusingly similar name.
• Counterfeit goods are being sold from a warehouse and could disappear if the seller is warned.
• A brand owner learned of the infringement a year ago and is now deciding whether to seek an injunction.
• A defendant is served with a temporary restraining order and must respond within days.

The tools.

What the owner must show.

A preliminary injunction requires a substantial likelihood of success on the merits, a substantial threat of irreparable injury, that the threatened injury outweighs any harm to the defendant, and that the injunction will not disserve the public interest (Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008); Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011)). The Fifth Circuit calls it an extraordinary remedy, and likelihood of success turns on the digits of confusion. In 2020 it affirmed the denial of an injunction sought by the owner of BRIZZY against VIZZY, both hard seltzers, finding the owner unlikely to prove confusion (Future Proof Brands, L.L.C. v. Molson Coors Beverage Co., 982 F.3d 280 (5th Cir. 2020)). See Likelihood of Confusion in the Fifth Circuit.

The presumption of irreparable harm.

The Trademark Modernization Act of 2020 provides that an owner seeking a TRO or preliminary injunction is entitled to a rebuttable presumption of irreparable harm upon showing likely success on the merits (15 U.S.C. § 1116(a)). The presumption applies to infringement, false designation, dilution, and the other violations listed in § 1116(a).

• Rebutting it. The defendant needs only a slight evidentiary showing to rebut the presumption. The burden then returns to the owner to show irreparable harm with evidence (Nichino Am., Inc. v. Valent U.S.A. LLC, 44 F.4th 180 (3d Cir. 2022)). In Nichino, evidence that buyers were sophisticated was enough.
• Delay. Waiting months or years after learning of the infringement is frequently offered to rebut the presumption, and courts have accepted it. An owner that intends to seek emergency relief should move promptly and be ready to explain any gap, such as time spent investigating or negotiating.
• Evidence still matters. Owners should support the motion with evidence of confusion, loss of control over reputation, and the effect on customers, rather than rely on the presumption alone.

Bond.

A court may issue a TRO or preliminary injunction only if the movant gives security that the court considers proper to pay the costs and damages of a party wrongfully enjoined (Fed. R. Civ. P. 65(c)). In the Fifth Circuit, the amount is within the court's discretion, and the court may require no security at all (Kaepa, Inc. v. Achilles Corp., 76 F.3d 624 (5th Cir. 1996)). A defendant facing a rebrand or a halted product launch should present evidence of what an injunction would cost it.

Ex parte seizure of counterfeits.

In a case involving a counterfeit mark, the court may order goods, records, and the means of making them seized without notice to the defendant (15 U.S.C. § 1116(d)). The safeguards are strict:

1. Notice to the U.S. attorney. The applicant must give reasonable notice of the application to the United States attorney for the district.
2. Security. The applicant must post security adequate to pay damages for a wrongful seizure.
3. Findings. The court must find, among other things, that an order other than an ex parte seizure order is not adequate, that the applicant has not publicized the requested seizure, that the applicant is likely to show the defendant used a counterfeit mark, that immediate and irreparable injury will occur, that the goods are at the place identified, and that the defendant or others would destroy, move, or hide them if given notice.
4. Execution. Law enforcement officers carry out the seizure.
5. Hearing. A hearing is held 10 to 15 days after the order, unless the court finds good cause for another date, and the applicant must prove the facts supporting the order are still in effect.
6. Wrongful seizure. A person harmed by a wrongful seizure may recover damages, including lost profits, loss of goodwill, punitive damages if the seizure was sought in bad faith, and, generally, attorney's fees.

Because of these burdens, an owner may instead seek a TRO, with or without notice, ordering the defendant to preserve the goods and records and stop selling. See Counterfeits and Online Marketplaces.

Asset restraints.

Federal courts generally cannot freeze a defendant's assets before judgment in a suit for money damages (Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999)). An award of the defendant's profits under the Lanham Act is equitable, however, and courts have allowed limited freezes to preserve those profits (Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982 (11th Cir. 1995)). The Fifth Circuit upheld a limited freeze on that reasoning in an unpublished decision (Animale Grp. Inc. v. Sunny's Perfume Inc., No. 07-40200 (5th Cir. 2007)). A freeze should be no broader than the profits the owner may recover. Profits are limited to those of the named defendant (Dewberry Grp., Inc. v. Dewberry Eng'rs Inc., 604 U.S. ___ (2025)). See Trademark Remedies.

The order and the appeal.

• Form. Every injunction must state the reasons it issued, state its terms specifically, and describe the acts restrained in reasonable detail. It binds the parties, their officers, agents, employees, and attorneys, and others in active concert with them who receive actual notice (Fed. R. Civ. P. 65(d)).
• Speeding the case. The court may consolidate the preliminary injunction hearing with the trial on the merits (Fed. R. Civ. P. 65(a)(2)).
• Appeal. An order granting or denying a preliminary injunction may be appealed immediately to the Fifth Circuit (28 U.S.C. § 1292(a)(1)). Denials are reviewed for abuse of discretion.
• Texas state court. Temporary restraining orders and temporary injunctions follow Texas rules, including a bond requirement and an immediate appeal from a temporary injunction order. See Emergency Relief: TROs and Temporary Injunctions, in the trade secret section. Texas law also authorizes injunctions against infringement of a Texas-registered mark (Tex. Bus. & Com. Code §§ 16.102(b), 16.104(a)).

Sources.

• 15 U.S.C. § 1116(a), (d).
• 28 U.S.C. § 1292(a)(1).
• Fed. R. Civ. P. 65.
• Tex. Bus. & Com. Code §§ 16.102(b), 16.104(a).
• Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).
• Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011).
• Future Proof Brands, L.L.C. v. Molson Coors Beverage Co., 982 F.3d 280 (5th Cir. 2020).
• Nichino Am., Inc. v. Valent U.S.A. LLC, 44 F.4th 180 (3d Cir. 2022).
• Kaepa, Inc. v. Achilles Corp., 76 F.3d 624 (5th Cir. 1996).
• Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999).
• Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982 (11th Cir. 1995).
• Animale Grp. Inc. v. Sunny's Perfume Inc., No. 07-40200 (5th Cir. 2007) (unpublished).
• Dewberry Grp., Inc. v. Dewberry Eng'rs Inc., 604 U.S. ___ (2025).
• Sandra Edelman & Fara Sunderji, Delay in Filing Preliminary Injunction Motions: 2023 Edition, 113 Trademark Rep. (2023).

This guide is general information, not legal advice. Law checked through October 21, 2026. See the Disclaimer.