U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

WWE Can Get Court Order to Bust Counterfeiters Near Superdome

Can you get a court order against nobody in particular? Apparently so, if this Fifth Circuit ruling is any indication.

World Wrestling Entertainment, like all entertainment entities, battles bootleggers. Bootleggers sell merchandise on tables in the street near WWE events. Determining the identities of these pop-up bootleg shopkeepers is nearly impossible in advance, so the WWE sought a blanket order that would basically cover anyone within "broad geographic and temporal limits," the district court noted.

According to The Hollywood Reporter, the lower court wasn't convinced, but the Fifth Circuit, noting that nobody except the WWE itself has the right to peddle its merchandise, reversed and sent the case back to the court to settle other pressing issues, like whether Stone Cold Steve Austin can body slam bootleggers through their tables.

5th Circuit: Judicial Order OK

The Trademark Counterfeiting Act allows trademark holders to obtain temporary restraining orders to seize counterfeit goods.

But the district court denied WWE's request for a court order against anyone peddling goods near the events, complaining that, "At best, Plaintiff defines Defendants almost tautologically: Defendants are anyone who would be a proper defendant within broad geographic and temporal limits," reports THR.

But the Fifth Circuit seemed unconcerned:

WWE does not license third parties to sell merchandise at live events. Rather, it makes its own merchandise sales directly. The resulting confined universe of authorized sellers of WWE merchandise necessarily "identifies" any non- WWE seller as a counterfeiter. WWE cannot know in advance the specific identities of counterfeiters who will present themselves at any given event, but it does know that any non-affiliated seller at or near an event is almost certainly a counterfeiter.

In short: Everyone is a bootlegger but the WWE itself, which means identifying bootleggers with specificity in a court order isn't a problem.

Who Enforces the Order?

The case isn't closed, however. The district court expressed reservations over allowing the WWE's private "Enforcement Officials" to seize merchandise on its own.

The Fifth Circuit was also skeptical, noting, "On its face, the Act does not appear to authorize private citizens to carry out ex parte seizure orders. Indeed, the Act's sponsors appear to suggest that a court granting such an order might "permit a representative of the applicant, such as its counsel, to accompany the U.S. Marshal [or other law enforcement officer] to assist" in determining what materials should be seized."

The panel's brief opinion, however, left the details of how to deal with that issue for the district court to sort out.

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