U.S. TRADEMARK LITIGATION PROCESS
Litigating a trademark violation case in the United States is a confusing and bewildering process for most defendants. This article explains the U.S. Trademark Litigation Process.
First, litigation is the method by which civil disputes are resolved in the U.S. Intellectual property law, including trademarks and copyrights, is primarily controlled by the national government rather than the states. As noted in my previous article, “Jurisdiction for U.S. Trademark Violations,” federal courts have jurisdiction over U.S. trademark violation cases. Federal district court judges are highly qualified individuals who are appointed by the president and confirmed after examination by the U.S. Senate. Federal district court judges are appointed for life and cannot be removed unless convicted of malfeasance after a trial by the U.S. Senate. Federal district court judges and the U.S. federal court system are possessed of great integrity and are the bedrock upon which the stability of American society and government rests.
对于大多数被告来说，解决在美国的商标侵权案件是一个混乱和困惑的过程。本文阐述了美国商标诉讼程序。首先，在美国诉讼是民事纠纷解决的方法。知识产权法，包括商标和版权，主要由联邦政府控制，而不是各州。如我之前的文章 “美国商标侵权管辖权” 所述，，联邦法院对美国商标侵权案件有管辖权。联邦地区法院法官是由总统任命并经美国参议院审查后确认的有资格胜任的个人。联邦地方法院法官被任命为终身法官，除非在美国参议院的审判中被判有不法行为，否则不能被撤销。联邦地方法院法官和美国联邦法院系统具有很强的完整性，是美国社会和政府稳定的基石。
The U.S. Trademark Litigation Process begins by the plaintiffs filing of a Complaint with the clerk of the U.S. district court. A Complaint is a document in which the plaintiff describes its basis for jurisdiction before the U.S. district court; the law that has allegedly been violated; the alleged unlawful acts of the defendants and the damages that are requested. In most cases, a document called a “Summons” along with the Complaint must be “served,” placed in the personal possession, of each defendant. The U.S. Trademark Litigation Process varies due to the fact that each case has many defendants, most of whom are overseas or are unknown. Cases are most often filed “under seal,” secretly, out of view of defendants. This requires special permission from the judge. The plaintiffs claim that if the case filings are made freely available from the beginning, the defendants will discover the case and will destroy evidence and/or move funds outside the U.S. so that the plaintiffs are denied a remedy.
After the case is filed, the plaintiffs ask the judge for extraordinary relief. In addition to sealing the case, the plaintiffs ask that they be able to provide notice of the lawsuit to the defendants via email instead of by personal service. The plaintiffs reason that while the actual identity and associations of the defendants are unknown or unclear, sellers on web based platforms like eBay or the administrators of websites must have an email address on file and log in to their websites regularly. The judge examines evidence which includes screenshots of the allegedly infringing postings and photographs of the items delivered to the plaintiff’s investigator. Based on this evidence, the judge almost always permits the plaintiff’s to provide notice of the lawsuit to defendants via email and by redirecting websites to a web page that references the lawsuit and includes copies of the complaint and other documents.
The plaintiffs also ask the judge for permission to freeze funds in U.S. based bank and merchant processing accounts. This is extraordinary relief that is uncommon in lawsuits that do not involve international parties and are outside the realm of intellectual property law. Again, plaintiffs argue to the judge that if defendants are notified of the suit, they will remove all funds outside the U.S., denying plaintiffs a remedy.
The legal term for these requests to the court is “Motion.” The requests for service by email, to file under seal and to freeze U.S. based funds are part of a single motion for a “temporary restraining order” or TRO. The order granted is for a limited period of time. The TRO is later converted into a preliminary injunction which keeps the assets frozen for the duration of the litigation. Under this order, defendants are also ordered cease and refrain from violating Plaintiff’s intellectual property. It is important that Defendants contact us quickly if they wish to oppose these motions.
Both the website and emails inform Defendants that they must file an “Answer” with the court within twenty-one days of receiving the notice. An Answer is a formal legal document in which defendants answer the allegations contained in the Complaint and present any defenses that they may have. It is very important that the Answer is timely filed. Failure to timely file an Answer results in many negative consequences including loss of all funds in the Paypal account, the ability to conduct business online and the loss of any assets that defendants may have in the U.S. See my article “The Consequences of Not Answering a U.S. Trademark Violation Suit” for a full explanation of the importance of timely filing an Answer. Defendants usually first learn of the lawsuit against them in the U.S. when they receive an email from Paypal informing them that Paypal has received a court order freezing their account. This notice advises defendants to seek U.S. legal counsel. At this point, defendants are often confused and mistakenly believe that Paypal is responsible for freezing their funds and have the discretion to release them. This is incorrect. See my article “Don’t Blame Paypal for Account Freeze.” Defendants next receive an email from plaintiff’s counsel informing them of the lawsuit. At this point, the requirement for notification has been met.
It is also important that Defendants contact us well before the Answer deadline. The filing of an Answer signifies the beginning of formal litigation between the parties. A speedy settlement is also less likely after an Answer is filed as there is no pressure on either party to dispose of the case prior to any deadline. Around 90% defendants will choose settlement. However, if you choose to fight, we will fight for you and maximize your interest.
同样重要的是, 被告在答复截止日期之前尽早和我们联系。提交答复意味着双方正式诉讼的开始。在答复提交以后，要达成一个快速的和解方案不太可能，因为任何一方都没有在任何截止日期之前解决这个案子的压力。 90%左右的被告会选择和解方案。如果你选择打官司，我们会为你最大化利益战斗到底。
After the Answer is filed, the process of “Discovery” begins. Discovery is a part of the U.S. Trademark Litigation Process in which both parties exchange information. This information exchange may take place formally by the submission of written questions, requests to admit specific factual allegations or, rarely, the requirement that representatives of either party appear at a certain place and time to answer questions under oath. All questions must be answered honestly and no requested information may be hidden from view. The purpose of discovery and the U.S. Trademark Litigation Process is to determine the facts as they are in order to come to a fair resolution of the dispute.
The next step in the U.S. Trademark Litigation Process is what is known as a Motion for Summary Judgment. Under American law, judges decide questions of law and a jury decides questions of fact. A judge may fulfill both roles in some cases. In a Motion for Summary Judgment, either side may ask the judge to declare that there are no important facts that need to be determined by a trial. If the judge agrees, he or she will enter a judgment, a formal finding of liability, in the favor of one party. Civil cases often end with a judge’s ruling on a motion for summary judgment. In this event, the judge will also determine how much money must be paid.
Other motions are occasionally presented as well. In some cases, it may be possible to force the plaintiffs to release some or all of the funds restrained in the Paypal or other financial accounts prior to the end of the litigation. This is a complicated and labor intensive process that requires one or more court appearances. Other motions may also require an associate attorney to appear in court in Chicago on your behalf.
At the Law Office of L. Ford Banister, II, we understand that the U.S. Trademark Litigation Process is stressful. Defendants must face an unfamiliar process that is very different from China or other countries in some respects. No honest lawyer can guarantee a result. We can look at other cases with similar facts and based on our experience guess at the outcome. However, no two cases are ever exactly alike so the outcome is always unknown. The purpose of this article is to help anyone facing a lawsuit in the U.S. for trademark violation understand the U.S. Trademark Litigation Process so the process will be less stressful.
L.Ford Banister II律师事务所理解美国商标诉讼过程是有压力的。被告人必须面对一个陌生的流程，在某些方面和中国或其他国家有很大的不同。没有一个诚实的律师能保证结果。我们可以看看其他情况类似的事实，根据我们的经验猜测结果。然而，没有两个案例是完全一样的，所以结果总是未知的。这篇文章的目的是帮助面临美国商标侵权诉讼的任何人了解美国商标诉讼过程，以便在经历过程中减轻压力。
For U.S. legal representation, consultation and guidance through the U.S. Trademark Litigation Process, Contact the Law Office of L. Ford Banister, II today. We put our resources and experience to work to obtain the best possible outcome for each client.
有关美国商标诉讼的法律代表，咨询和指导，请今天就联系L. Ford Banister II律师事务所。我们会投入我们的资源和经验为每个客户最大化利益。
U.S. Trademark Litigation Process–www.Trademarkviolation.us