Stepping into the countdown bell in 2023, take stock of the most headache things for cross-border e-commerce in 2023, brand filing and TRO are indistinguishable, especially during several major promotions of cross-border e-commerce, TRO cases emerge in endlessly.
Take the recent case as an example, Sneaker Shields single-handedly took away 584 stores, which shows the power of infringing tro.
At present, there are still many sellers who do not know what TRO is, what the corresponding process is, and how to deal with and solve it as a defendantToday we are sharing our experience in dealing with TRO.
Federal justice system
First instance (trial).:d iStrict Court (District Court).
For example: North Illinois District, nd.il.(Chicago).
Southern District of New York, Sd.n.y.(New York).
Southern Florida, Sd.fl.(Miami).
Review: Court of Appeals
Final review:u.s.Supreme Court of the United States
Federal TRO proceedings
Take Illinois, for example
The plaintiff filed with the court:
Complaint of the Prosecution Package
TRO Composite Motion (EX parte Application Motion for TRO, PI, Exedited Discovery).
Motion for Alternative Service
Motion to seal
The court granted the TRO and other motions and issued summons.
The plaintiff served the complaint and service of process on the defendant by e-mail and ** publicity.
The defendant replied within 21 days of receiving service.
If the defendant does not reply, the plaintiff may have the right to file a motion for default judgment (MDJ).
The court makes a judgment, the platform executes the judgment, and the funds are transferred.
U.S. law firm prosecution process
What is tro?
tro stands for Temporary Restraining Order, which translates to "Temporary Restraining Order". When a plaintiff files a complaint with the court, it usually applies to the court for a temporary injunction;After Amazon receives the temporary restraining order, it will generally notify the seller in the form of an email, if you receive an email with the words "temporary restraining order", it is determined that the store has been trojan.
Section 65(b)(2) of the U.S. Rules of Civil Procedure provides for a temporary injunctionThe validity period is generally 14 days。However, if the plaintiff asks the court to extend the validity period and the court finds that the plaintiff has sufficient cause (good cause), the court will extend the validity period for a further 14 days.
What is the impact of receiving a TRO mail?
After receiving the plaintiff's TRO, the cross-border platform will freeze the funds of the suspected infringing store, and the suspected infringing products will be removed from the shelvesOf course, other products can still be sold normally;ButIt should be noted that after the funds are frozen, the funds cannot be withdrawn.
1) InWithin the period of responding to the lawsuit (within 21 days)., the seller submits a reply, and the account status is still frozen: fund account frozen.
2) If the seller does not settle and is absent to respond to the lawsuit:
The frozen funds in the account will be transferred away one after anotherAfter the case is adjudicated, the frozen funds will be transferred directly to the plaintiff's law firm
Permanently freeze the funding account;After the trial of the case, the plaintiff law firm will not revoke the PI for the absent account, while the account is still frozen;At this time, the account's selling privileges can still be used normally.
It is important to note that:If the trial is held in absentia, the account may be awarded a large amount of damages by the court;If the frozen funds in the account cannot fully cover the high compensation, the subsequent sales of other products will be transferred as compensation until the coverage is completedAt this time, the withdrawal function of the account is still limited
Received the TRO, there are two issues that need to be resolved
1.What should be done about the infringement?
First of all, determine whether there is real infringement, and if so, immediately remove all infringing products from the shelves, and actively contact the opposing lawyer for settlementIf you don't understand the handling process, you can find a relevant lawyer to respond to the lawsuit, and you must not respond blindly.
2.How much do I need to pay for the settlement amount?
The settlement is mainly affected by the frozen amount, as well as the sales volume of the infringing products and the sales brought by the infringing productsLegally speaking, the plaintiff's bottom line is generally at least the defendant's sales, and on this basis, the plaintiff's lawyer will try to ask for as high as possibleSettlement payments generally start at $1,000 or moreIf the sales volume of the infringing product is large, the sales volume is large, and the frozen amount is large, it may range from 10,000 to tens of thousands of US dollars.
Infringement settlement and settlement detailed process
Sellers should not panic and blindly appeal, and need to sort out the following issues before further processing:
Make it clear who the complainant is
What rights have been infringed on the other party
Generally, the answers to these two questions can be found in the infringement email sent by Amazon, such as the ***ASIN number of the complainant, the reason for the complaint, etc.
If the above information is not available in the email, the seller can first contact the complainant and ask the complainant to inform him of the reason for the infringement and conduct friendly negotiation.
What should I do if I find specific information such as infringing links?
OneStop the infringement and consider whether to settle and respond to the lawsuit
Find out the infringing products and delete them, and stop the infringement in time.
Check the amount that has been frozen and the status of the store's permissions.
Analyze the circumstances of the case and consider whether to settle and respond to the lawsuit (if you believe that there is no infringement after analyzing the case, you can choose to entrust a lawyer to take measures to respond to the lawsuit).
IIEntrust a lawyer to settle the infringement
After determining that you want to settle, you can immediately entrust a lawyer to deal with it, generallyAbout 1-2 monthsIt can be solved smoothly. The specific process of infringement settlement is as follows:
Retain a lawyer to understand the case and evaluate the settlement.
Contact the plaintiff's attorney to negotiate a settlement.
The two sides reached a preliminary agreement.
Wait for the plaintiff's lawyer to issue a settlement letter.
The defendant signed the settlement and paid the settlement money.
The plaintiff's lawyer submitted a letter of withdrawal and contacted the platform to unfreeze the defendant's fund account.
Frequently Asked Questions
1.How long should the accused seller respond from the date of service of the summons?
Under the U.S. Federal Rules of Civil Procedure, from the date of service of the summons, the defendant shall have any defense or response to the plaintiff's suitRespond within the 21-day deadlineThe defendant may request the plaintiff's consent and apply to the court for an extension of the time limit for the defense.
2.Can the defendant settle with the plaintiff after the court issues a default judgment?
Even if the court has made a default judgment, sometimes the plaintiff is still willing to negotiate a settlement with the defendant after the court has made a final judgment due to cumbersome enforcement procedures, increased litigation costs caused by a new trial or appeal hearing.
3.Can the accused seller not do anything?
In the United States, if the defendant is self-sufficientWithin 21 days from the date of service of the summonsFailure to respond to the plaintiff's lawsuit may result in a default judgment from the court, with the following consequences:
1) After the court awards the amount of compensation, the plaintiff has the right to deduct the frozen funds in the defendant's account to offset the amount of compensation. If it cannot be offset, the fund account such as PayPal will no longer be available.
2) The plaintiff may continue to inquire about the defendant's other assets after the funds in the defendant's frozen account involved in the case are cleared. Even if the defendant changes the collection account and removes the infringing products from the shelves in the case, if the plaintiff inquires about the new collection account, the plaintiff has the right to continue to apply for freezing the account to meet the corresponding compensation in the judgment.
3) Based on precedent, a U.S. court may exercise personal jurisdiction over a bank in its jurisdiction, requiring it to provide the account information of the defendant's branch in China, subject it to judicial freeze and require it to suspend the provision of domestic financial services to the defendant.
4) After the court renders a default judgment, the plaintiff may no longer use the frozen amount as a reference for the settlement amount, but the judgment amount as a reference, that is, the difficulty and cost of the defendant's settlement may increase significantly.
4.When sued for trademark infringement in the U.S., can the defendant negotiate with the opposing counsel on their own?
It is not advisable for the defendant to negotiate directly with the plaintiff's lawyerHere's why:
1) In most cases, the plaintiff's lawyer generally does not negotiate directly with the client, but recommends that the client appoint a U.S. lawyer to negotiate with him. Therefore, if the parties contact the plaintiff's lawyer directly, they may not get a meaningful reply, and may even delay the best time for settlement negotiations or litigation (such as the 21-day response period).
2) If the parties do not have the relevant professional legal literacy, it is easy to leave evidence unfavorable to the other party in the communication with the plaintiff's lawyer, and even constitute a self-admission of infringement, so that the plaintiff has more sufficient reasons to claim high compensation in the subsequent settlement or response process, which increases the difficulty of settlement or litigation.
5.If the infringement is established and found to be reasonable, how should the accused seller deal with it?
If the infringement is established and found to be reasonable, it is recommended that the accused seller hire a lawyer to negotiate a settlement with the plaintiff's lawyer as soon as possible, and request the plaintiff to revoke the injunction or withdraw the lawsuit.
If the accused seller does not do anything, it may result in the receiving court issuing a default judgment against the defendant based on the plaintiff's application.
The plaintiff will request that the case be settled after receiving the judgmentThe frozen account will be cleared, and the defendant's other related assets will continue to be queried, and if new property clues (such as new collection accounts, etc.) are found, the defendant will continue to apply for freezing
6.How do U.S. courts usually determine the amount of damages awarded for trademark infringement?
In terms of the amount of damages, the plaintiff generally seeks the maximum amount of compensation at the time of the lawsuit, such as three times the damage or profit, or the statutory oneThe compensation is capped at $2 millionHowever, the plaintiff generally neglected to provide evidence on the amount of damages in the complaint, and in this case, the court will not support it in full.
For well-known trademarks, if the plaintiff clearly lists the evidence that the trademark is a well-known trademark, the facts of the defendant's infringement, and the number of infringing products sold through various platforms, the court will often rule in favor of the plaintiff's claimAwarded in accordance with the maximum amount of statutory damages (US$2 million).
7.What are the methods for calculating damages for patent infringement in the United States?
The compensation is calculated by the following methods:
1) The loss of the right holder shall be determined according to the loss of sales, erosion, increased costs of the patentee, and the damage to the reputation caused by the infringer's sale of infringing products of inferior quality
2) Reasonable license fees, i.e., reasonable license fees at the discretion of the judge;
and 3) punitive damages when the infringer intentionally infringes. Pursuant to 35 U.S.C. § 284, after determining the existence of an intentional infringement, the court may determine in its sole discretion whether to impose additional punitive damages (up to twice the amount of compensatory damages).
8.What are the acts that constitute patent infringement?
35 U.S.C. § 271 provides that, unless otherwise specified, any person in the United States for the term of a patent is establishedWithout permissionManufacturing, using, selling, offering for sale, or importing a patent-protected invention, or importing a patent-protected invention into the United States, is an infringement.
9.After infringement, do all store products need to be taken off the shelves?
No, non-infringing products can be sold normally.
10.Can I continue shipping after blocking?
If the sued infringing account is frozen, it is generally only the product that has been complained of infringement is deleted and removed from the platform by the platform, and other products can operate normallyIf a lawyer has been appointed to handle the case, the handling here refers to the settlement, and the settlement compensation is based on the freezing of the account funds on the day of the withdrawal of a certain percentage;If you respond to the lawsuit, it is recommended to suspend the shipment, which takes a long time to respond to the lawsuit and has many uncertainties.
11.Is the frozen amount negotiated with the GBC settlement according to the amount of the day or according to the final balance?
Generally, the amount on the day of the freeze is frozen. However, new law firms are constantly joining, and many law firms are now directly asking the platform to suspend lending, and as long as the case is not resolved, it is not recommended to continue large-scale sales.
Either wayNegotiate a settlement or respond to a lawsuitWe all have a lot of experience and strong professional ability.
If you need professional infringement settlement and response services, or want to know whether your products are infringing, you are welcomeContact Jite for a free consultation