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WWE Can Seize Bootleg Merchandise, 5th Circuit Rules

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By Brett Snider, Esq. on November 05, 2014 11:46 AM

The WWE has clotheslined bootleggers in a recent appellate ruling which will allow the wrestling empire to seize counterfeit merchandise pursuant to federal trademark law.

The 5th U.S. Circuit Court of Appeals ruled that while it was unclear exactly which parties were hocking the knockoff wrestling merch, World Wrestling Entertainment Inc. (WWE) could expect that non-WWE parties selling merchandise were likely counterfeiters. The Hollywood Reporter notes that the case isn't over just yet, as the issue has been remanded to the district court.

What were the WWE's claims, and how will they go about legally seizing bootleg merchandise?

Bootleg Merchandise and Trademark Law

Part of the problem with the WWE's suit at the district court level was that it was unable to identify the parties who were knocking off their varied merchandise. As the 5th Circuit noted, the unidentified defendants were accused of operating as "'fly by night' counterfeiters, setting up shop near WWE events and cannibalizing WWE's merchandise sales by purveying unauthorized products."

Under the Trademark Counterfeiting Act, trademark holders can defend themselves from counterfeiters by obtaining temporary restraining orders and seizing counterfeit goods. But there was a small problem: The district court denied WWE these requests for relief because it couldn't determine the identity of these counterfeiters.

The 5th Circuit disagreed with the lower court being so persnickety with the Act's requirements, holding that since WWE doesn't license any of its merchandise, anyone selling WWE stuff who isn't the WWE is necessarily a counterfeiter. The federal appellate court believed this was enough proof to issue the relief that the WWE sought, but it left it up to the district court to hammer out the details.

Fear of Counterfeit-Seizing Goons?

One of the worries of the lower court was that the Trademark Counterfeiting Act did not seem to support private agents acting to enforce these seizure orders. The concern was that WWE "Enforcement Officials" would be acting under federal law in seizing counterfeit merchandise, while the law doesn't exactly grant them that power.

The court suggested that maybe a U.S. Marshal might accompany these WWE employees "in determining what materials should be seized." But instead of actually deciding the issue, the Fifth Circuit left it to the lower court to work out enforcement.

Hopefully this won't mean WWE goons literally body slamming counterfeiters outside their events.

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