The Exercise of Principled Discretion in Trade Mark Permanent Injunctions: Orthodoxy, Specificity and Refusal

Abstract This article analyses the approach of English and other common law courts (particularly Ireland) to the framing of final injunctive relief in trade mark litigation. In particular, it examines the case for and against crafting final injunctive relief in general form as opposed to bespoke form. The superficial attractiveness of granting tailored injunctive orders for the infringement of registered trade marks is deconstructed by reference to principal case law in Ireland and the United Kingdom. The article also analyses the impact of EU law on this approach, in particular, Art. 130 of the EUTM Regulation (which imposes a requirement of “ special reasons ” for a court to refuse the grant of a final injunction). The article also notes a potential divergence between Irish law, mandated by EU law, and the UK position in forthcoming years. The article concludes by seeking to set out a number of guiding principles on the question of framing final injunctive relief in this area.