2015 Oregon Revised Statutes
Volume : 14 - Trade Practices, Labor and Employment
Chapter 647 - Trademarks and Service Marks; Music Royalties
Section 647.111 - Seizure of counterfeit goods in infringement proceeding; liability for wrongful seizure; undertaking.
(1) In a civil action under ORS 647.105, upon motion by the plaintiff with or without notice to the defendant, the court may order seizure of the counterfeit goods from any person manufacturing, displaying for sale or selling the goods if the plaintiff shows good cause and a probability of success on the merits and posts an undertaking under subsection (6) of this section.
(2) If the plaintiff makes a motion without notice to the defendant for an order for seizure and the court determines from the motion that there is good reason for proceeding without notice to the defendant, the court may waive the requirement of notice and order seizure of the counterfeit goods.
(3) Any person from whom seizure is effected by order of the court under this section shall be served with the order at the time of the seizure. The order of seizure shall set forth:
(a) The date or dates on which the seizure is ordered to take place;
(b) A description of the counterfeit goods to be seized;
(c) The identity of the person or description of the authority of the person who will seize the counterfeit goods;
(d) A description of the location or locations at which seizure is to occur; and
(e) A hearing date not more than 10 court days after the last date on which seizure is ordered at which any person from whom goods are seized may appear and seek release of the seized goods.
(4) If the plaintiff causes seizure of goods that are not counterfeit, the plaintiff shall be liable for the following damages, costs and expenses:
(a) Any damages proximately caused by the seizure of goods that are not counterfeit to any person having a financial interest in the seized goods.
(b) Costs incurred by any person in defending against seizure of noncounterfeit goods.
(c) Expenses, including reasonable attorney defending against the seizure of any noncounterfeit or noninfringing goods, upon a showing that the plaintiff acted in bad faith in causing the seizure to occur.
(d) Punitive damages, if warranted.
(5) A person seeking a recovery under subsection (4) of this section may join any surety on an undertaking posted under subsection (6) of this section. Any judgment of liability shall bind the person liable under subsection (4) of this section and the surety jointly and severally, but the liability of the surety shall be limited to the amount of the undertaking.
(6) The court shall set the amount of the undertaking required by subsection (1) of this section in accordance with the recovery of damages, costs and expenses under subsection (4) of this section that would be likely if the court ultimately were to determine that the goods seized were not counterfeit.
(7) Any person entitled to recover under subsection (4) of this section, within 30 days after the date of seizure, may object to the undertaking on the ground that the surety or the amount of undertaking is insufficient.
(8) The motion filed pursuant to subsection (1) of this section shall include a statement:
(a) Advising the person from whom the goods are seized that the undertaking has been filed;
(b) Informing the person of the right to object to the undertaking on the ground that the surety or the amount of the undertaking is insufficient; and
(c) Advising the person from whom the goods are seized that the objection to the undertaking must be made within 30 days after the date of seizure.
[1985 c.566 §4]
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