USA Law and Practice Contributed by: Keith Medansky, Tamar Duvdevani, Michael Geller, Aislinn Smalling and Kristina Fernandez Mabrie, DLA Piper LLP
authorised the sale or distribution of a particu - lar copy of a work, the owner of that particular sold copy is entitled, without the authority of the copyright owner, to resell or otherwise dispose of that physical copy. 10. Remedies 10.1 Injunctive Remedies Trade mark and copyright owners can seek pre - liminary and permanent injunctive relief. Permanent Injunction A court can order an injunction to restrain viola - tion of trade mark rights according to the princi - ples of equity on terms it deems reasonable. To do so, the court must find that the trade mark owner has suffered or will suffer an irreparable injury, there are no other sufficient remedies available at law, monetary damages are inad - equate to compensate for the injury, the balance of hardships between the plaintiff and defend - ant weighs in favour of the plaintiff, and the injunction would not harm the public interest. A plaintiff seeking any such injunction is entitled to a rebuttable presumption of irreparable harm. Such presumption may be rebutted by showing, for example, the plaintiff unreasonably delayed in seeking relief. Preliminary Injunction and TRO A court may order a preliminary injunction to immediately restrain an infringement where there is a likelihood of irreparable harm unless the injunction is issued pending trial. Courts consider the equities including the extent of the harm, the likelihood of ultimately prevailing at trial, and any public or private interests impacted by the injunction. A plaintiff seeking a preliminary injunction is entitled to a rebuttable presumption of irreparable harm if there is a finding of likeli -
hood of success on the merits for the movant in the case of a motion for a preliminary injunction or temporary restraining order. A movant may have to post a bond to address potential harm suffered by defendant if the injunction is later found wrongful. Temporary Restraining Order A temporary restraining order (TRO) is a short- term injunction only available in limited “emer - gency” situations in order to preserve the status quo pending a preliminary injunction hearing. A high standard of proof is required to demonstrate why relief of a limited record is required. An ex parte injunction or seizure order is issued without notice to the alleged infringer on an emergency basis. They are only available in limited situa - tions, such as counterfeiting cases, where, for example, there is concern that evidence will be destroyed if notice of the action is given before evidence is impounded and secured. Destruction Courts can also order that the infringing mer - chandise and materials used to manufacture the same are delivered up and destroyed. Where this relief is sought, the movant must give notice to the US Attorney’s Office that seizure will not prejudice a criminal prosecution. Asset Freeze Orders Asset freeze orders may also be granted in injunction proceedings to prevent the dissipa - tion of assets that could be used to satisfy a potential judgment. Copyright For copyright cases, the right to injunctive relief is similar to the rights in a trade mark case. However, the risk of irreparable harm is not pre - sumed.
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