« ForrigeFortsett »
in civil litigation and, on the other hand, be insulated from criminal prosecution with respect to that information.
That is my understanding, and I have no firsthand knowledge that it is occurring, and I don't know if it is available in other circuits. But because of that concern, and because I recognize the criminal penalties are probably the only answer, I believe that the civil side has to be strengthened to justify the potential inhibition of discovery.
Thank you. I will be willing to entertain any questions. [The statement of Mr. Wallen follows:)
tiffs in counterfeiting actions brought against at least one hundred
review of the actual experience of counsel in counterfeiting actions
is fundamental to understanding the benefits and/or drawbacks of the
discontinuance of the counterfeiting activity; (2) to obtain a Court
award or settlement payment of damages, investigative expenses and
attorneys' fees in an
amount sufficient to both deter the defendant
and allow plaintiff to recoup its litigating costs; and (3) when the
defendant is a
mere seller, to ascertain the identity of the
of the counterfeit goods.
With respect to the first concern of stopping the counter
feiting activity, plaintiff trademark owners have enjoyed regular and
under existing law.
During the past
years, courts have regularly granted temporary restraining orders and
seizure order has proved to be an important remedy for plaintiffs in
the counterfeiting area.
First, it has become apparent that many of
the defendants who deal in counterfeit goods have been unwilling to
mere temporary restraining order.
Accordingly, these defen
dants, after being served with a temporary restraining order, will in
some fashion dispose of their inventory of goods before a hearing on
a preliminary injunction or any discovery can be taken.
of seizure orders has been successful in preventing these defendants
an improper disposition of
seizure orders have proven to be an important coercive weapon against
Since many of the defendants are either effectively
judgment-proof (for lack of identifiable assets)
or because of lack
impossible, a seizure of a substantial quantity of goods is sometimes
the counterfeiting defendants maintain no
written records reflecting their purchase and resale of counterfeit transactions in the goods.
merchandise; therefore, it is virtually impossible to prove up the
defendant's sales for the purposes of computing damages or profits.
In a relatively few instances, defendants have admitted at
least modest sales amounting to a few thousand dollars of counterfeit
connection with a combined seizure order which permitted seizure of
In actions brought against a distributor or
plaintiffs have been successful in obtaining an identification of the
source of the goods only approximately fifty percent (50%) of the
In the remaining instances, the defendant has
about the identity or simply did not know the identity, and has
stated merely that the seller was a transient of unknown identity and
was paid cash for the goods.
85 - 8