Also known as: fence in · fenced in · fences in · enclosure · boundary fence
Written by attorneys · grounded in primary & secondary sources — see below
A remedial technique authorizing a court to issue a broad injunction that prohibits otherwise lawful conduct by the defendant in order to prevent future violations and protect the plaintiff from harm.
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Frontier Capital sold repackaged goods bearing a competitor's mark. The court enjoined not only direct infringement but also required Frontier to notify all distributors of its lack of affiliation and to recall prior shipments, even though those steps alone would not have violated the Lanham Act.
Bayer AG used the Bayer USA name for its U.S. holding company under a prior agreement. Sterling sought an order barring all use of the name. The court declined, finding no need to fence in Bayer AG because the company had shown it would comply with the agreement's limits.
K Mart sought to import goods bearing marks that Cartier claimed were protected. The court considered whether a regulation could fence in importers by barring goods even when the statute itself did not reach domestic versions of the same marks.
Police seized a suspect's phone incident to arrest. The court required a warrant before any search of the device's contents, fencing in officers from warrantless data examination that might otherwise have been permitted under traditional search-incident rules.
A court may do so when necessary to protect the plaintiff from future harm that narrower relief would not prevent. The injunction must still be no more burdensome than required.
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The technique originates in equitable remedies and appears most often in trademark disputes, but the underlying principle of prophylactic relief extends to other injunction contexts.
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Appellate courts require that the injunction not exceed what is reasonably necessary to prevent future violations, and trial courts retain discretion to tailor the relief.
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…Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves. See Ayers 30–31. Such devices are commonly called “Faraday bags,” after the English scientist Michael Faraday. They are essentially sandwich bags…