In U.S. federal courts, Temporary Restraining Orders, Preliminary Injunctions, and Permanent Injunctions are all orders issued to prevent impending or ongoing harm. However, they differ in their purpose, duration, procedure, and enforceability. The following outlines the relationship and differences between them:

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1)  Temporary Restraining Order (TRO):

According to Rule 65 of the Federal Rules of Civil Procedure, a Temporary Restraining Order issued by a federal court is an emergency and short-term order designed to stop an individual or entity from taking an action that could cause irreparable harm, until the court can conduct further review. Here are some basic facts about TROs:

• No Prior Notice Required: Courts can issue TROs without notifying the opposing party if there's clear evidence of imminent harm and immediate relief is necessary to prevent damage.

• Purpose and Duration: The primary goal of a TRO is to prevent irreparable harm until a more comprehensive hearing can be held. They are short-lived, usually lasting 10 to 14 days.

• Urgency: Applicants must demonstrate urgency, showing that irreparable harm would occur without immediate action.

• Procedure: TROs can be obtained without notifying the defendant, but applicants usually need to justify the lack of prior notice or show efforts made to notify.

• Extension and Conversion: After a TRO expires, if the dispute is unresolved, applicants can seek to extend the TRO or request a Preliminary Injunction for longer-term relief until the case is resolved.

• Requirements: To obtain a TRO, applicants typically need to prove likelihood of success on the merits, irreparable harm without the TRO, that the TRO is in the public interest, and that the harm from not issuing the TRO outweighs the harm to the party being restrained.

• Bond: Courts may require a bond to issue a TRO or Preliminary Injunction, covering costs and damages if it's found the injunction was wrongfully issued.

• Applicability: TROs are used in various civil litigation contexts, including contract disputes, trademark and patent infringements, and other intellectual property disputes.

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2)  Preliminary Injunction

• Purpose: To maintain the status quo and prevent further harm to the plaintiff during the course of litigation.

• Duration: Lasts until the end of the case or until another order is issued.

• Procedure: Typically requires a formal hearing where both parties can present evidence and arguments.

• Standards: The criteria for a Preliminary Injunction are similar to those for a TRO. The applicant must demonstrate a likelihood of success on the merits, a risk of irreparable harm, that the balance of interests favors the injunction, and that the public interest supports issuing the injunction.

Additionally, under Federal Rule of Civil Procedure 65, "The court may issue a preliminary injunction or a TRO only if the movant provides a bond to cover the costs and damages that the restrained party may suffer if it is found that the injunction should not have been granted."

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3)  Permanent Injunction:

• Purpose: To permanently prohibit certain actions to prevent future harm to the plaintiff after the conclusion of the case.

• Duration: Permanent, unless modified or dissolved by the court.

• Procedure: Issued after the trial and decision-making process, based on a comprehensive examination of the facts and law.

• Standards: After proving infringement or other illegal conduct, it must be demonstrated that the injunction is appropriate and necessary.

In summary, a TRO is designed to take swift action in emergency situations, a Preliminary Injunction aims to prevent further harm during the course of a lawsuit, and a Permanent Injunction is issued after the conclusion of a case to prevent future harm.

Judge Martha M. Pacold of the United States District Court for the Northern District of Illinois has provided a template for a Temporary Restraining Order. The original can be seen at:https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_judges/Pacold/TRO%20Template%20Schedule%20A%20cases.pdf

• Unilateral Application and Confidential Nature of TROs

According to Rule 65 and 5.2(d) of the Federal Rules of Civil Procedure, the plaintiff has the right to request a Temporary Restraining Order (TRO) "unilaterally" and "under seal" from a judge, meaning that the TRO can be issued without initially notifying the defendant and without disclosing the defendant's identity publicly. This practice is particularly applicable in situations where the court believes that notifying the defendant would lead to them evading the purpose of the TRO or transferring assets. In intellectual property cases, in addition to economic compensation, protecting the plaintiff's interests through various injunctions is common, thus making unilateral requests for TROs not uncommon.

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• Potential Negative Impacts of TROs on Defendants

Although defendants are usually notified shortly after the issuance of a Temporary Restraining Order (TRO) and have the opportunity to challenge it, the unilateral nature of TRO applications deprives defendants of the chance to question the plaintiff's request at the application stage. This can lead to a range of issues. Firstly, defendants might only become aware that they are being sued after their e-commerce platform accounts are frozen, potentially causing interruptions to their business and cash flow, and possibly forcing them to settle unfairly with the plaintiff under pressure. Secondly, although settlements in such situations can save judicial resources, since the TRO is issued based on the plaintiff's position without hearing the defendant's side, defendants might end up accepting an unfair settlement rather than contesting in court, even if they have a chance of winning the case.

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• Limitations and Risks of Legal Errors in Unilateral Judgments

All unilateral decisions carry an increased risk of legal or factual errors, which is particularly evident in intellectual property cases. Due to the often uncertain boundaries of IP rights, rights holders may assert their rights too broadly, and in the absence of a defendant, judges might accept these uncontested claims. Moreover, judges may lack the expertise and resources needed to determine the validity and scope of IP rights, leading to a risk of over-enforcement. In many cases, any legal or factual errors are less likely to be corrected or appealed due to defendants settling, cases being voluntarily dismissed, or defendants failing to appear in court, undermining the judicial system's self-correcting mechanism.

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For instance, in the Emoji Co. v. Individuals, Corporations, etc., case in the Federal District Court for the Northern District of Illinois, Emoji requested the court to issue default judgments of willful infringement against certain defendants. The court recognized Emoji's overreaching claims, attempting to privatize a commonly used term improperly. However, the judge overlooked the "descriptive fair use" statutory defense in determining liability, as it was not raised by the defendants (due to their absence). Yet, the judge used "descriptive fair use" as a reason to deny the plaintiff's claims of willful infringement and awarded "only" $25,000 in statutory damages to each defendant.

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The conclusion indeed highlights a paradox within the legal process. If the defendants were eligible for a "descriptive fair use" defense, the court should not have awarded any damages because the rights holder failed to meet the initial burden of proof. However, due to the defendants' absence, it's almost certain they would not appeal the decision. This situation leads to a legally unsupported outcome, where the standard mechanisms of judicial review and balance fail to function properly.

When a judge approves a unilateral TRO, the plaintiff submits it to the e-commerce platforms (such as Amazon, TEMU, AliExpress, etc.) where the defendant sells, requesting the e-commerce platform to enforce the contents of the TRO order.

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E-commerce platform operators generally respect TROs, regardless of whether they are legally obligated to do so, to reduce the risk of being seen as "contempt of court". At the same time, a TRO may be seen as notifying the e-commerce platform operators of the presence of infringing actions on their site, and if they do not take action, this could increase their risk of being seen as "contributory infringers" in future litigation.

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To enforce a TRO, e-commerce platforms often freeze all sales and marketing activities of the defendant's products, not just the activities involving the infringing products. This freeze immediately harms the defendant in two ways:

• First, the freeze locks any cash held by the defendant, regardless of whether these funds are related to the infringing products. This freeze can create serious or even fatal cash flow problems for the defendant, as it may be unable to pay its suppliers, employees, or lawyers.

• Second, the freeze cuts off the defendant's future sales, including both the so-called infringing products and any other non-infringing products. Thus, there is an important mismatch between the anticipated and actual remedies of the TRO. The TRO should only involve items within the scope of the plaintiff's intellectual property rights, but the freeze triggered by the TRO may restrict unrelated goods and reduce the defendant's legitimate profits.

• Worse, excluding legitimate competitors from the market means consumers have fewer choices and therefore pay higher prices due to these indirect effects. Thus, a unilateral TRO also damages the public interest.

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If e-commerce platforms did not comply so broadly with unilateral TROs, "Appendix A" lawsuits might vanish. Theoretically, platforms could just freeze items and funds directly related to the alleged infringing activities, not the entire account and all held funds. However, as long as platforms fear legal liability, they lack sufficient motivation to meticulously sort and intervene. For them, completely freezing the entire account and all products of the alleged infringer identified in the TRO is a simpler, lower-risk option.

The Federal Rules of Civil Procedure do not directly specify which rulings can be appealed. Instead, the appealability of decisions like TROs is typically addressed in the Federal Rules of Appellate Procedure and the United States Code, especially under 28 U.S.C. § 1292.

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According to 28 U.S.C. § 1292(a)(1), appellate courts have jurisdiction over interlocutory or temporary decisions that grant, continue, modify, refuse, or dissolve injunctions, or refuse to dissolve or modify injunctions. In practice, TROs are generally not immediately appealable unless they effectively function as preliminary injunctions. If a TRO exceeds the time limits specified in FRCP 65(b) or substantively decides on the merits of the case, it may be considered a preliminary injunction and thus appealable under 28 U.S.C. § 1292(a)(1). However, specifics may vary by jurisdiction and the particulars of the case.

Temporary restraining orders play a critical role in federal civil litigation, especially when urgent action is needed to prevent irreversible harm. According to Rule 65 of the Federal Rules of Civil Procedure, a TRO can be granted without notifying the defendant, known as an ex parte TRO. While the rule provides detailed specifications regarding the duration, restricted parties, terms, and surety of the TRO, it does not explicitly mandate whether the court should issue orders restricting defendants from transferring illegally obtained assets.

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In practice, nearly all federal circuit courts agree that Rule 65 grants courts the authority to restrict defendants' assets during litigation. This asset restriction is particularly crucial in cases involving counterfeit defendants due to the illegal nature of counterfeiting operations and counterfeiters' ability to erase evidence chains using the internet. For example, the Eleventh Circuit in the SEC v. ETS Payphones case found it appropriate to freeze all of a defendant's assets to ensure sufficient funds for compensation upon the plaintiff's victory. Similarly, the Ninth Circuit in Reebok Int'l Ltd. v. Marnatech Enter emphasized the district court's authority under the Lanham Act to freeze defendants' assets to ensure the feasibility of final relief. Courts can even restrict assets not directly traceable to fraudulent activities, as shown in the Fourth Circuit's Kemp v. Peterson case.

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In situations where TROs are issued unilaterally, courts exercise particular caution because this involves restricting a defendant's property rights without their notification. However, courts are deemed to have the authority to issue TROs unilaterally when prior notification to the defendant could lead to the transfer or concealment of assets intended to be restricted. For instance, the Eastern District of Pennsylvania Federal District Court in the case of F.T. Int'l Ltd v. Mason unilaterally granted a TRO restricting the defendant's bank accounts upon finding that prior notification might lead to the transfer or concealment of funds. Similarly, the Northern District of Illinois Federal District Court issued a TRO unilaterally in the case of CSC Holdings, Inc. v. Greenleaf Elec., Inc., which restricted pirates and their assets.

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Overall, the rationale behind unilateral TROs lies in their ability to provide a mechanism for quick action in emergency situations to prevent irreversible harm, and to ensure the feasibility of permanent relief when deemed necessary by the court.