USA Law and Practice Contributed by: Keith Medansky, Tamar Duvdevani, Michael Geller, Aislinn Smalling and Kristina Fernandez Mabrie, DLA Piper LLP
particularly in the context of seeking temporary or pre - liminary relief: Ex parte applications: In some extenuating circum - stances, trade mark and copyright owners may seek a court order (ex parte) without notifying the defendant in advance. This is typically done in urgent situations where providing notice could lead to harm, such as the destruction of evidence or continued infringement. Even when relief is granted without notice, courts often require that the defendant be notified as soon as possible after the order is issued. This allows the defendant to respond and seek to dissolve or modify the order. See 7.9 Counterfeiting and Bootlegging and 10.1 Injunctive Relief . 10.5 Customs Seizures of Counterfeits or Parallel Imports United States Customs and Border Protection (“Cus - toms”) has the power to seize, forfeit and destroy merchandise seeking entry into the US if it bears an infringing trade mark or copyright that has been reg - istered with the PTO or the USCO and recorded with Customs. Trade mark and copyright registrations can be recorded with Customs at iprr.cbp.gov/s/ There is limited customs protection for parallel imports in the US under the “Lever Rule” if there are mate - rial differences between the unauthorised “parallel” imported goods and the US goods sold under the same trade mark. See Lever Brothers Co. v U.S. , 981 F.2d 1330 (1993). To qualify, the trade mark registra - tion must be owned, or jointly owned, by a US citizen and a special request must be made to Customs (1) stating the basis for this claim with particularity, (2) supporting the claim by competent evidence, and (3) providing Customs with summaries of the alleged physical and material differences that exist between the merchandise authorised for sale in the US and those intended for other markets.
civil cases, a party has the right to appeal any final judgment or order made by trial courts (district courts). Non-final orders can also be appealed in certain cir - cumstances, but typically require leave of court. To initiate an appeal, the appellant must file a Notice of Appeal with the court that issued the original deci - sion. The deadline to do so is strict. A late filing cannot be cured except in very rare circumstances. Once the appeal is initiated, both parties will have an opportu - nity to file legal arguments and argue the case before the appeals court. Most appeals take more than a year or two to be heard and a decision rendered. 11.2 Timeframes for Appealing Trial Court Decisions The Notice of Appeal must be filed within 30 days of the entry of judgment or order being appealed. This is a strict deadline. AI continues to be a hot button issue. AI companies are currently subject to litigation from creators who claim that the AI was impermissibly trained on their works and that the AI’s outputs infringe on their works. These cases are making their way through the courts. In June 2025, two summary judgment decisions held as fair use the use of books to train general-purpose generative AI models where there was no evidence of infringing outputs. By contrast, a third decision held that it was not fair use to use non-fiction content to train a directly competitive non-generative AI model. The increase in litigation and licensing was fuelled in part by: • the USD1.5 billion preliminary class action settle - ment in Bartz v Anthropic • the US Copyright Office’s May 2025 report that “creating and deploying a generative AI system using copyright-protected material involves mul - tiple acts that, absent a license or other defense, may infringe one or more [copyright] rights”; and 12. Additional Considerations 12.1 Emerging Issues AI
11. Appeal 11.1 Appellate Procedure
Judicial decisions regarding trade mark or copyright infringement can be appealed. As with most federal
674 CHAMBERS.COM
Powered by FlippingBook