Thursday, February 2, 2012

Marion County Judge Gives NFL Blanket Authority to Seize Any Property League Deems Infringing

I used to do trademark and copyright infringement work for a number of national and international companies. I have never heard of an order giving the a copyright/trademark holder the blanket authority to seize unidentified private property of unidentified infringers at will.  I discussed this with another attorney who has worked in this area and he too has never heard of this.  I can't imagine how the judge has the authority to issue such an order.  According to the Indianapolis Business Journal:
Marion Superior Court has granted temporary restraining and seizure orders to the NFL, along with the New England Patriots and New York Giants, after they requested injunctions on Jan. 25.
The orders give the NFL and the two Super Bowl teams the authority to seize unlicensed merchandise without notice. Those caught selling items without proper trademarks face financial penalties and will have their merchandise confiscated.
“Previous trademark protection efforts during the Super Bowl period demonstrate that the professional infringers who ‘work’ the site of the game will defy or avoid temporary restraining orders and will continue to sell their counterfeit merchandise in any possible manner,” the NFL said in its suit. “The only effective way to combat this problem is to seize the goods at the point of sale.”
The restraining and seizure orders take effect at noon on Friday and last through Monday, the day after the game. 
“Plaintiffs have shown that notice need not be given because vendors and manufacturers of counterfeit NFL merchandise have no business identity and cannot be identified, located or notified … and if so notified would flee with the counterfeit merchandise,” Judge Cynthia Ayers wrote in granting the orders.
To see the rest of the article, click here.

The fact is federal and state law enforcement officials already have the power to treat selling and/or possession of infringing materials as a criminal offense and seize the property pursuant to an arrest.  For a court to give the power to seize private property as a civil violation to a private entity whenever that entity feels it has been wronged, well that is quite remarkable and unlikely to be upheld if ever challenged. Of course when a lawsuit doesn't actually identify a defendant before an order is issued, it's really hard to take an appeal.  Is there anything we won't do for the NFL?


Cato said...

Just wondering what would happen if a NFL employee or agent were met with a gun barrel? Are the NFL employees being accompanied by cops? If yes, then shame on the cops for being soldiers in a corporate army, and if not, then some NFL employee is merely a trespasser, and Indiana has a lovely stand-your-ground law.

Also wondering whether the judge's order was part of the NFL contract?

Also wondering how you get that injunction, since injunctions are ordinarily hard as hell to obtain, must be incredibly narrowly defined, must post a bond and must identify a specific, very specific, person and action to be obtained?

How does this judge retain any professional credibility? How does any lawyer not cite it and say "well, you did the same thing for the NFL?"

At the state's law schools, do they have the regular Civ. Pro. lecture on injunctions, followed by the special NFL lecture, where the instructor says "Forget all that I told you yesterday. Here's how you can get a blanket injunction"?

This is fascism. This is shameful.

Cato said...

Also, the offending action must be provably occurring, supported by affidavit or testimony, not merely speculative.

Had Enough Indy? said...

Nothing is sacred except the NFL.

Paul K. Ogden said...

FYI, the order was signed by Judge Cynthia Ayres who is up for a Supreme Court slot.

Cato said...

All have to surrender their liberty in service of corporate profits, as corporate profits provide us all with a better quality of life.

This is the Republican way of socialism.

This is every bit as socialistic as any Swedish collectivist could ever devise. The Republicans'/corporatists' scheme merely places corporations as the head of power and control, instead of the state. In either case, freedom and individualism are diminished in service to a collectivist purpose.

When Romney exalts capitalism, he's telling you he's coming for your freedom, just as surely as a leftist is when he advocates an expansive social program.

Cato said...
This comment has been removed by the author.
Cato said...

Well, surrendering all legal methodology and jurisprudential integrity should land her in good stead with the Indiana Supreme Court, a body to which no means was ever more important than an end.

Paul K. Ogden said...


This is not a Republican thing...both parties are falling all over themselves to do anything the NFL asks. A judge though should say no when asked to sign what appears to be a clearly unathorized order granting sweeping powers to a private company.

Nicolas Martin said...

What is the most effective way of opposing Cynthia Ayres elevation to the Supreme Court?

Cato said...


Ayres could move down the list if another judge in the running gave the NFL a blanket order to search the entire state.

Ayres might then improve her standing in the Indiana legal community by granting the NFL permission to search each and every home, with no-right-to-resist power being extended to the NFL.

The brightest legal mind will grant the NFL (and every corporation) the most power.

Pete Boggs said...

Constitu-shun? Bizarre!