USA Law and Practice Contributed by: Keith Medansky, Tamar Duvdevani, Michael Geller, Aislinn Smalling and Kristina Fernandez Mabrie, DLA Piper LLP
11. Appeal 11.1 Appellate Procedure
Ex parte applications: In some extenuating cir - cumstances, trade mark and copyright owners may seek a court order (ex parte) without notify - ing 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 dis - solve 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 (Customs) 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 registered 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 paral - lel imports in the US under the “Lever Rule” if there are material differences between the unau - thorised “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 registration 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.
Judicial decisions regarding trade mark or cop - yright infringement can be appealed. As with most federal 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 circumstances, 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 decision. 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 opportunity to file legal argu - ments 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. 12. Additional Considerations 12.1 Emerging Issues AI continues to be a hot button issue. AI com - panies are currently subject to litigation from creators who claim that the AI was impermis - sibly trained on their works, and that the AI’s outputs infringe on their works. These cases are making their way through the courts. In the realm of registration, the USCO has denied registration of materials that are completely AI-generated, as US copyright law requires that the creator be a human author. Copyright registrations may be granted to works partially generated by AI, but
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