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The Florida Senate

2005 Florida Statutes

Section 506.09, Florida Statutes 2005

506.09  Civil remedies.--

(1)  A person, association, or union that adopts or uses, and files as provided in s. 506.07, a label, trademark, term, wording, design, device, color, or form of advertisement may proceed by suit to enjoin the manufacture, use, display, or sale of any counterfeits thereof. Any court of competent jurisdiction may grant an injunction to restrain such manufacture, use, display, or sale as may be deemed just and reasonable and shall require the defendant to pay to the owner up to 3 times its profits from, and up to 3 times all damages suffered by reason of, the wrongful manufacture, use, display, or sale. The court may order the destruction of all such counterfeits, all means of making the counterfeits, and all goods, articles, or other matter bearing the counterfeits, which are in the possession or control of the court or any party to the action; or, after obliteration of the counterfeits, the court may dispose of those materials by ordering their transfer to the state, a civil claimant, an eleemosynary institution, or any appropriate private person other than the person from whom the materials were obtained.

(2)  The court, upon motion or ex parte application by a plaintiff in a suit to enjoin the manufacture, use, display, or sale of counterfeits, may order seizure of the counterfeit goods from persons manufacturing, displaying for sale, or selling the goods, upon a showing that the counterfeit goods are likely to be destroyed, sold, or removed from the jurisdiction of the court and that there is a probability of success on the merits and upon the posting of an undertaking pursuant to subsection (5). If it appears from the ex parte application that there is good reason for proceeding without notification to the defendant, the court may, for good cause shown, waive the requirement of notice for the ex parte proceeding. The order of seizure shall specifically 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 persons or class of persons to effect the seizure;

(d)  A description of the location or locations at which the seizure is to occur; and

(e)  A date, not more than 10 court days after the last date on which seizure is ordered, for a hearing at which any person from whom goods were seized may appear and seek release of the seized goods.

Any person from whom a seizure is to be effected shall be served with the order at the time of the seizure.

(3)  Any person who causes the seizure of goods which are not counterfeit is liable in an amount equal to the following:

(a)  Any damages proximately caused by the seizure of goods which are not counterfeit to any person having a financial interest in the seized goods.

(b)  Costs incurred in defending against seizure of such goods.

(c)  Upon a showing that the person who caused the seizure to occur acted in bad faith, expenses, including reasonable attorney's fees, in defending against the seizure of such goods.

(d)  Punitive damages, if warranted.

(4)  A person entitled to recover may seek a recovery pursuant to subsection (3) by cross-claim or motion made in the trial court. A person seeking a recovery pursuant to this section may join any surety on an undertaking posted pursuant to subsection (2), and any judgment of liability will bind the person liable pursuant to subsection (3) and the surety jointly and severally, but the liability of the surety is limited to the amount of the undertaking.

(5)  The court shall set the amount of the undertaking required by subsection (2) in accordance with the probable recovery of damages, costs, and expenses under subsection (3) if it is ultimately determined that the goods seized are not counterfeit.

(6)  Any person entitled to recover under subsection (3) may, within 30 days after the date of seizure, object to the undertaking on the ground that the surety or the amount of undertaking is insufficient.

(7)  The motion or application filed pursuant to subsection (2) shall include a statement advising the person from whom the goods are seized that the undertaking has been filed, informing her or him of her or his right to object to the undertaking on the ground that the surety or the amount of the undertaking is insufficient, and advising her or him that such objection to the undertaking must be made within 30 days after the date of seizure.

History.--s. 5, ch. 4974, 1901; GS 3172; RGS 4998; CGL 7087; s. 1, ch. 84-132; s. 651, ch. 97-103.