eBay applied to false advertising injunction

Schering-Plough Healthcare Prods., Inc. v. Neutrogena Corp., D. Del. Aug. 20, 2010

Neutrogena falsely advertised the presence of Helioplex in certain of its sunscreens. But Schering-Plough was not entitled to a permanent injunction based on a presumption of irreparable harm; it had to satisfy the eBay factors. Although in an E.D. Va. case, PBM v. Mead Johnson, the court granted a permanent injunction on the theory that a jury verdict could presumptively satisfy the irreparable injury factor, the court still applied eBay. The same is true of the recent Osmose case, which inferred harm from the seriousness of the claims at issue. Thus, the parties were allowed limited discovery addressed to the four permanent injunction factors (irreparable injury; legal remedies such as damages inadequate; balance of hardships; public interest).