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Federal Judge Takes Aim at Legal Process for Targeting Counterfeit Merchandisers
The rebound in concert tours and ticket revenues as 2022 has unfolded gives the live events industry hope for a strong 2023, too. For many tours, though, it's income from merchandise that makes the tour profitable. Thus, the rise in the number of artists touring also means a parallel resurgence in the activities of counterfeit-merchandise sellers and renewed efforts by the industry to battle its long-time problem with the sale of counterfeit merchandise near event venues.
The Trademark Counterfeiting Act (TCA) of 1984 is a key federal provision for seeking to stem counterfeiting activity, by providing criminal consequences under 18 U.S.C. §2320, treble damages and disgorgement of counterfeiter profits under 15 U.S.C. §1117, and a procedure for trademark owners to obtain orders for ex parte seizures of illicit goods under 15 U.S.C. §1116.
In an August 2022 ruling involving the TCA, Judge Benjamin Beaton of the U.S. District Court for the Western District of Kentucky, Louisville Division, pondered: "If a civil-procedure professor fell asleep listening to Metallica, what dream — or nightmare — might follow? Enter Sandman: a suit for an emergency ex parte nationwide injunction authorizing off-duty cops to seize bootlegged Metallica shirts from 'Various John Does' throughout the band's summer [2022] tour." Merch Traffic LLC v. Does, 3:21-cv-576.
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