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Earlier this year, a Louisiana judge acted as a heel and handed the WWE a surprising defeat on the cusp of Wrestlemania. On Tuesday, the professional wrestling body got the 5th Circuit Court of Appeals to overturn the decision in its ongoing grudge match against merchandise bootleggers.
The WWE filed a lawsuit on March 26 against anonymous “John Does.” The goal was to get the judge to authorize seizures around the Superdome in New Orleans. The preemptive move wasn’t uncommon — those organizing music concerts have employed the same legal tactic over the years — but the WWE’s attempt to do it with some amount of secrecy ran into U.S. District judge Helen Berrigan‘s concern about sharp elbows aimed indiscriminately.
The judge questioned why the WWE couldn’t provide much information about the identities of those being sued. And the judge wasn’t sufficiently impressed with WWE’s word that past judicial orders have empowered them to seize goods including some 6,000 counterfeit T-shirts as well as DVDs, action figures and posterboards at previous Wrestlemania events. “At best, Plaintiff defines Defendants almost tautologically: Defendants are anyone who would be a proper defendant within broad geographic and temporal limits,” she wrote.
The Fifth Circuit gives the judge props for raising the tautological questions, but rejects her “granular focus on the ‘identity’ of unnamed Defendants” nonetheless.
“The district court’s concern overlooks a predicate established in this case,” writes a three-judge panel at the 5th Circuit. “WWE does not license third parties to sell merchandise at live events. Rather, it makes its own merchandise sales directly. The resulting confined universe of authorized sellers of WWE merchandise necessarily ‘identifies’ any non- WWE seller as a counterfeiter. WWE cannot know in advance the specific identities of counterfeiters who will present themselves at any given event, but it does know that any non-affiliated seller at or near an event is almost certainly a counterfeiter.”
The case is now remanded back to the district level, and even though Wrestlemania is over, the dispute isn’t quite over. In fact, now that counterfeiter has been defined as anyone selling without the WWE’s permission, the issue turns to who is empowered to stop that. Vince McMahon?
In her opinion in April, Judge Berrigan asked: “Does due process allow the Court to deputize a plaintiff to determine which goods are seizable, all while cloaking Plaintiff in the protection of a judicial order?”
The judge never provided an answer to her own question but the 5th Circuit thinks that so-called WWE “Enforcement Officials” are indeed ripe for review.
“On its face, the [Trademark Counterfeiting] Act does not appear to authorize private citizens to carry out ex parte seizure orders,” says the 5th Circuit opinion. “Indeed, the Act’s sponsors appear to suggest that a court granting such an order might ‘permit a representative of the applicant, such as its counsel, to accompany the U.S. Marshal [or other law enforcement officer] to assist’ in determining what materials should be seized. We do not address the validity of this provision of the proposed order, leaving it to the district court to address in the first instance.”
The WWE can now at least retract the “caveat emptor” that it issued broadly to the entertainment industry at the time of the April decision.
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