INJUNCTION



An injunction is a court order, issued by a judge, that prohibits an individual, business firm, labor union, or other type of organization from engaging in a specified action, or that requires them to resume an action. An injunction is intended to protect the property rights of an individual or business from being violated. It is not used to punish violations of the law, although it may be used to enforce a breach of contract.

A preliminary injunction may be issued when a lawsuit is initiated to protect property rights while the litigation is in progress. Such an injunction is often issued on a temporary basis without a hearing. Preliminary injunctions are frequently sought in patent infringement cases, where the plaintiff alleging a patent violation obtains a preliminary injunction against the party who is charged with infringing on the plaintiff's patent rights. In such cases a judge may issue a preliminary injunction prohibiting the defendant from manufacturing or distributing the product or products alleged to be in violation of the plaintiff's patent rights. The effect of such an injunction may be to put the competitor out of business, especially if it is a smaller company and the patent suit takes a long time to resolve. Consequently, judges may grant such preliminary injunctions only when there is a reasonable likelihood that the patent infringement claim will be successful.

In trademark infringement cases, courts typically consider four factors before deciding whether or not to grant a preliminary injunction. These include the strength of the plaintiff's case and the overall probability of its success; whether the plaintiff is likely to suffer irreparable harm if the injunction is not granted; whether the plaintiff's injury outweighs the potential harm the injunction would cause the defendant; and the effect of an injunction on the public interest. In addition, courts may consider the likelihood of future infringement—whether the infringement was an isolated case and not likely to occur again in the future. That is, the court may refuse to issue a preliminary injunction on the basis that the defendant is not likely to violate the plaintiff's trademark rights again in the future.

Under the European Treaty Convention, cross-border injunctions may be granted in patent infringement and other intellectual property cases. In one case, a Dutch judge granted an injunction that covered Belgium, the Netherlands, and Luxembourg.

LABOR INJUNCTIONS

In the early 20th century injunctions were frequently used by big business to prevent labor unions from going on strike. The Norris-LaGuardia Act of 1932 limited the ability of federal courts to issue injunctions in labor disputes. The Labor-Management Relations Act of 1947, also known as the Taft-Hartley Act, allowed the president of the United States to seek an injunction to prevent a strike when a labor dispute threatened national health or safety. After issuing an unfair labor-practices complaint, the National Labor Relations Board (NLRB) may seek injunctive relief in federal court to compel a party to either desist or resume an action under Section 10(j) of the National Labor Relations Act.

Since it settled the baseball strike of 1994 with an unfair labor practices charge and an injunction against the major-league owners, the NLRB has used its power to seek injunctive relief to a greater extent. In order to obtain a labor injunction, the NLRB must show that irreparable harm would be caused and that injunctive relief would be "just and proper." The most common situations in which the NLRB has sought an injunction include management interference with a union's organizing campaign, owners subcontracting work to avoid bargaining obligations, owners refusing to recognize an incumbent union, unions using coercion to meet an illegal objective, and the occurrence of mass picketing violence.

OTHER COMMON USES OF INJUNCTIONS

In the realm of contracts, an injunction may be used to enforce a negative covenant (an agreement not to perform certain acts or services) when there is a breach of contract. For example, a recording company may seek an injunction against a recording artist who is under contract, to prevent the artist from recording for another label or performing in violation of specific articles of the contract.

Preliminary injunctions are also commonly used by the Securities and Exchange Commission (SEC), especially in factually or legally difficult cases and in cases where it can demonstrate "irreparable harm." Many franchise terminations result in litigation alleging wrongful termination of franchise rights, and it is not unusual for plaintiff franchisees to seek a preliminary injunction allowing them to continue to operate as a franchisee until the case is decided.

SEE ALSO : Copyright

[ David P. Bianco ]

FURTHER READING:

Berkowitz, William N. "Defeating Requests for Preliminary Injunctive Relief in Franchise Termination Cases." Franchise Law Journal, winter 1995, 57-63.

Koen, Clifford M., Jr., and others. "1o(j) Injunctions: A Shift in NLRB Approach." Labor Law Journal, November 1995, 699-707.

Koen, Clifford M., Jr., and others. "The NLRB Wields a Rejuvenated Weapon." Personnel Journal, December 1996, 85-86.

Lans, Maxine S. "To Enjoin or Not to Enjoin: A Tough Question." Marketing News, 13 February 1995, 5.

Miller, Charles E., and Bart J. Van Den Broek. "European Patent Makes Its Debut." Journal of Commerce and Commercial, 8 January 1997, 7A.

Northrup, Herbert R., and H. Lane Dennard Jr. "The Return of 'Government by Injunction?' Public Policy and the Expansive Uses of Section 10() of the NLRA." Employee Relations Law Journal, summer 1996, 101-31.

Pitt, Harvey L., and others. "'Court-ing Disaster': The Factors that Prompt the SEC to Seek Injunctive Relief." Annual Institute on Securities Regulation, summer 1995, 269-74.

Retsky, Maxine Lans. "Watch Out for This New Legal Hurdle in Trademark Litigation." Marketing News, 5 January 1998, 28-29.



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