Pre-trial Trademark Injunctions: Hard To Get But Worth The Squeeze?

• Published date: 05 December 2025
• Subject Matter: Intellectual Property, Trademark
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr Barry Fong, Mat Brechtel, Daniel Hnatchuk and Angela Kaiser

Key takeaways

• Trademark owners often seek pre-trial injunctions to halt infringement during litigation, which are highly valuable but challenging to obtain.
• The evidentiary bar, which is already high, may be raised further if the plaintiff's trademark has not been registered.
• Understanding the requirements and preparing adequate evidence can significantly enhance the chances of obtaining a pre-trial injunction.

In almost every trademark dispute, the most important goal for the brand owner is to halt the infringement. While permanent injunctions are a common remedy accompanying a final decision, lawsuits often take years.

A shorter-term solution is to obtain an injunction pending the resolution of the case. These interim¹ or interlocutory² injunctions are highly desirable for trademark owners, but notoriously difficult to obtain. In this Update, we explore the keys to obtaining this special remedy so that trademark owners can best position themselves for success, and avoid disappointment when the facts are not supportive.

Anatomy of a pre-trial injunction: key requirements

Obtaining a pre-trial injunction requires a high evidentiary burden that meets a three-part test. The test was set down by the Supreme Court of Canada in RJR-MacDonald, and is universally applied in Canadian law.

The burden is on the party seeking relief to demonstrate each of the following elements:³

1. Serious issue to be tried: The claims must have a real prospect of success, based on the law and evidence presented on the injunction motion.⁴

Plaintiffs should also be aware that "mandatory injunctions", which would require the defendant to take a positive course of action, carry a higher burden of proof at the first step in the analysis and require the requesting party to demonstrate a strong prima facie case, or a strong...