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The Never-Ending Seizure Order: How Courts Have Granted Immortality to Congress's Mayfly

22 Pages Posted: 3 Dec 2008 Last revised: 20 Feb 2009

Steven N. Baker

affiliation not provided to SSRN

Date Written: November 1, 2008

Abstract

When Congress passed the Trademark Counterfeiting Act of 1984, it created a new means of combating counterfeiting: the ex parte seizure order. Armed with such an order, trademark owners can seize counterfeit merchandise without giving advanced notice. Congress, aware that such a process could lead to abuse, created several express limitations to the seizure process. One such limitation was that seizure orders shall not last longer than seven days. Courts, however, are extending the life of seizure orders; some extensions last only days, others months, and still others go on for years. Under what authority have the courts so extended seizure orders, thereby thwarting what appears to be Congress's clear intent that seizure orders under the Act last no longer than seven days? This Article details the problem that led to the Act's passage, Congress's goals embodied within the Act and its legislative history, the way courts have treated the Act and its newly minted seizure process, and the possible reasons why courts have found it within their power to extend seizure orders. Chief among these reasons is the breakdown of the adversarial process in counterfeiting suits, which often proceed only as Trademark Owner v. Various John Does.

Keywords: trademark, seizures, seizure orders, ex parte, ex parte seizures, ex parte seizure orders, Lanham Act, Trademark Counterfeiting Act of 1984, counterfeit

Suggested Citation

Baker, Steven N., The Never-Ending Seizure Order: How Courts Have Granted Immortality to Congress's Mayfly (November 1, 2008). Cardozo Arts & Entertainment Law Journal, Vol. 26, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1310726

Steven N. Baker (Contact Author)

affiliation not provided to SSRN

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