Ferring Pharmaceuticals, Inc. v. Watson Pharmaceuticals, Inc.
765 F.3d 205
| 3rd Cir. | 2014Background
- Ferring appeals district court denial of a preliminary injunction in a Lanham Act false advertising case against Watson.
- Issue centers on whether Lanham Act claims carry a presumption of irreparable harm in preliminaries after eBay and Winter.
- Watson's September 11, 2012 webcasts featured Dr. Silverberg's statements about Endometrin vs Crinone, including misstatements.
- Allegations include mischaracterization of Black Box warning, faulty patient preference survey readings, and age-35+ efficacy claims.
- Watson conceded certain statements were inaccurate and Dr. Silverberg pledged not to repeat them; some statements removed from later webcasts.
- District Court found no ongoing misrepresentations proved irreparable harm and denied injunctive relief; Ferring appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lanham Act relief carries irreparable harm presumption | Ferring seeks presumption based on Lanham Act false advertising history. | eBay and Winter eliminate automatic presumption; require likelihood of irreparable harm. | No presumption; irreparable harm must be shown likely. |
| Whether the district court correctly applied the irreparable harm standard | Presumption would satisfy irreparable harm and justify injunction. | Traditional equity applies; no presumption; must show likely irreparable harm. | District court did not err; negligence of presumption and lack of likely irreparable harm shown. |
| Whether Beltsos declaration or other evidence creates irreparable harm | Expert declaration shows potential irreparable impact on prescribing behavior and market perception. | Declaration is speculative and insufficient; statements ceased and no ongoing harm shown. | Beltsos declaration insufficient; no clear error; harm not demonstrated likely. |
Key Cases Cited
- eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (U.S. 2006) (presumption of irreparable harm rejected; traditional equity controls injunctive relief)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (U.S. 2008) (injunctions require likelihood of irreparable harm; not mere possibility)
- Kos Pharmaceutical, Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004) (presumption for trademark infringement irreparable harm prior to eBay)
- Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187 (3d Cir. 1990) (per se injury for trademark infringement irreparably harms reputation)
- McNeilab, Inc. v. American Home Prods. Corp., 848 F.2d 34 (2d Cir. 1988) (presumption of irreparable harm from false or misleading advertising)
- Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (eBay abrogates presumption in copyright; case-by-case equitable analysis)
- Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239 (9th Cir. 2013) (eBay applies to trademark injunctions; no automatic irreparable harm presumption)
- Brookfield Communications v. West Coast Entm’t Corp., 174 F.3d 1036 (9th Cir. 1999) (illustrative of irreparable injury concepts in injunctions)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (NEPA injunction standard aligned with traditional four-factor test)