Paul D. Supnik, Attorney at Law
Domestic and International Copyright and Trademark Law;
Motion Picture, Television, Publishing, Media and General Entertainment Law;
14340. (a) Any owner of a mark registered under this chapter may
proceed by suit to enjoin the manufacture, use, display, or sale of any
counterfeits thereof and any court of competent jurisdiction may grant
injunctions to restrain such manufacture, use, display, or sale as may
be deemed just and reasonable, and shall require the defendants to pay
to the owner up to three times their profits from, and up to three times
all damages suffered by reason of, the wrongful manufacture, use, display,
or sale. If, in any action brought under this section, the court
determines that a mark is counterfeit, the court may order the destruction
of all such marks, all means of making the marks, and all goods, articles,
or other matter bearing the marks, which are in the possession or control
of the court or any party to the action; or, after obliteration of the
counterfeit mark, the court may dispose of those materials by ordering
their transfer to the State of California, a civil claimant, an eleemosynary
institution, or any appropriate private person other than the person from
whom the materials were obtained.
(b) The court, upon motion or ex parte application by a plaintiff in a suit to enjoin the manufacture, use, display, or sale of counterfeits, may order seizure of the counterfeit goods from persons manufacturing, displaying for sale, or selling the goods, upon a showing of good cause and a probability of success on the merits and upon the posting of an undertaking pursuant to subdivision (e). If it appears from the ex parte application that there is good reason for proceeding without notification to the defendant, the court may, for good cause shown, waive the requirement of notice for the ex parte proceeding. The order of seizure shall specifically set forth (1) the date or dates on which the seizure is ordered to take place, (2) a description of the counterfeit goods to be seized, (3) the identity of the persons or class of persons to effect seizure, (4) a description of the location or locations at which seizure is to occur, and (5) a hearing date not more than 10 court days after the last date on which seizure is ordered at which any person from whom goods are seized may appear and seek release of the seized
goods. Any person from whom seizure is effected shall be served with the order at the time of seizure.
(c) Any person who causes seizure of goods which are not counterfeits shall be liable in an amount equal to the following:
(1) Any damages proximately caused to any person having a financial interest in the seized goods by the seizure of goods which are not counterfeit.
(2) Costs incurred in defending against seizure of noncounterfeit goods.
(3) Upon a showing that the person causing the seizure to occur acted in bad faith, expenses, including reasonable attorneys' fees expended in defending against the seizure of any noncounterfeit or noninfringing goods.
(4) Punitive damages, if warranted.
(d) A person entitled to recover may seek a recovery pursuant to subdivision (c) by cross-claim or motion made in the trial court and served pursuant to Section 1011 of the Code of Civil Procedure. A person seeking a recovery pursuant to this section may join any surety on an undertaking posted pursuant to subdivision (b), and any judgment of liability shall bind the person liable pursuant to subdivision (c) and the surety jointly and severally, but the liability of the surety shall be limited to the amount of the undertaking.
(e) The court shall set the amount of the undertaking required by subdivision (b) in accordance with the probable recovery of damages, costs, and expenses under subdivision (c) if it were ultimately determined that the goods seized were not counterfeit.
(f) Any person entitled to recover under subdivision (c) may, within 30 days after the date of seizure, object to the undertaking on the grounds that the surety or the amount of undertaking is insufficient.
(g) The motion or application filed pursuant to subdivision (b) shall include a statement advising the person from whom the goods are seized that the undertaking has been filed; informing him or her of his or her right to object to the undertaking on the grounds that the surety or the amount of the undertaking is insufficient; and advising the person from whom the goods are seized that such objection to the undertaking would be made within 30 days after the date of seizure.
(h) For purposes of this section, the term "counterfeit" means a spurious mark which is identical with, or substantially indistinguishable from, a registered mark and which is used on or in connection with goods or services for which the genuine mark is registered.
14341. The enumeration of any right or remedy in this chapter
shall not affect a registrant's right to prosecute under any penal law
of this state including, but not limited to, Section 350 of the Penal Code.
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