Temporary Restraining Orders to Enforce Intellectual Property Rights at Trade Shows: An Empirical Study
47 Pages Posted: 21 Nov 2017 Last revised: 28 Mar 2018
Date Written: November 18, 2017
Infringements of intellectual property (“IP”) rights by exhibitors at trade shows (also called trade fairs or exhibitions), such as infringements committed through exhibitions of or offers to sell infringing products, can be extremely damaging to IP right owners because of the wide exposure that trade shows provide for infringing IP; the promotion of the infringing IP and the contacts made by infringers at trade shows can facilitate further infringements after a trade show that can be very difficult for IP right owners to prevent. IP right owners therefore seek to obtain emergency injunctive relief to stop trade show infringements immediately — if possible, during the trade show itself. In the United States, the relief that courts issue in these situations is typically a temporary restraining order (“TRO”). This article reviews the law and practice of TROs requested and issued for trade shows and reports original empirical findings about the practice at the U.S. District Court for the District of Nevada — the court that issues TROs for trade shows that take place in Las Vegas, Nevada, a major international trade show center. Based on an analysis of the law and practice, the article argues that in the context of trade shows, current law on injunctive relief in IP cases relegates a TRO to a position as a tool that is available only against foreign infringers who have infringed IP rights before the trade show in question. While there may be multiple reasons why TROs issued for trade shows often target foreign infringers, current TRO law might be a contributing factor to the high percentage of trade show-related TROs issued against foreign infringers. The limited availability of TROs for trade shows is problematic because it leaves IP right owners without access to emergency relief in situations other than those involving pre-existing infringements by foreign infringers. Absent a change in the current law, alternative dispute resolution mechanisms may offer a route to more accessible emergency relief at trade shows.
A companion article that is also based on the research for the present article discusses different ADR mechanisms and court-implemented accommodation practices, and their positives and negatives. See Marketa Trimble, Enforcement of Intellectual Property Rights at Trade Shows: A Review and Recommendations, 34 OHIO ST. J. ON DISP. RESOL. (forthcoming 2018), https://ssrn.com/abstract=3129176.
Keywords: intellectual property, temporary restraining order, trade show, trade fair, exhibition, federal court, injunction, statistics, litigation, enforcement, empirical, Nevada, Las Vegas
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