§ 10-1-451 - Injunctions against infringement; recovery of profits and damages; destruction or disposal of counterfeit trademarks; seizure
O.C.G.A. 10-1-451 (2010)
10-1-451. Injunctions against infringement; recovery of profits and damages; destruction or disposal of counterfeit trademarks; seizure
(a) Any owner of a trademark or service mark registered under this part may proceed by action to enjoin the manufacture, use, display, or sale of any counterfeits or imitations thereof; and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display, or sale as may be by the court deemed just and reasonable and may require the defendants to pay to such owner all profits derived from such wrongful manufacture, use, display, or sale, and all damages suffered by reason of such wrongful manufacture, use, display, or sale, or both profits and damages. The enumeration of any right or remedy in this part shall not affect a registrant's right to prosecute under any penal law of this state.
(b) Every person, association, or union of working men adopting and using a trademark, trade name, label, or form of advertisement may proceed by action; and all courts having jurisdiction thereof shall grant injunctions to enjoin subsequent use by another of the same or any similar trademark, trade name, label, or form of advertisement if there exists a likelihood of injury to business reputation or of dilution of the distinctive quality of the trademark, trade name, label, or form of advertisement of the prior user, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services, except that this Code section shall not deprive any party of any vested lawful rights acquired prior to March 4, 1955.
(c) If, in any action brought under this Code section, the court determines that a trademark or service mark is counterfeit, the court may order the destruction of all such trademarks or service marks and all goods, articles, or other matter bearing the trademarks or service marks, which are in the possession or control of the court or any party to the action; or, after obliteration of the counterfeit trademark or service mark, the court may order the disposal of any of those materials to the State of Georgia, a civil claimant, an eleemosynary institution, or any appropriate private person other than the person from whom the materials were obtained.
(d) (1) The court, upon motion or upon ex parte application by a plaintiff in an action 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 of good cause and a probability of success on the merits and upon the posting of bond. The amount of the bond shall be set in accordance with the probable recovery of damages and costs under subsection (e) of this Code section if it were ultimately determined that the goods seized were not counterfeit. If it appears from an 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 be served at the time of seizure upon any person from whom seizure is effected. The order 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 seizure;
(D) A description of the location or locations at which seizure is to occur; and
(E) A hearing date not more than ten 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.
(2) The order shall include a statement advising the person from whom the goods are seized that bond has been filed, informing the person of the right to object to the bond on the grounds that the surety or the amount of the bond is insufficient, and advising the person from whom the goods are seized that such objection to the bond shall be made within 30 days after the date of seizure.
(e) (1) Any person who causes seizure of goods which are not counterfeits shall be liable in an amount equal to the following:
(A) Any damages proximately caused to any person having a financial interest in the seized goods by the seizure of goods which are not counterfeit;
(B) Costs incurred in defending against seizure of noncounterfeit goods; and
(C) Upon a showing that the person causing the seizure to occur acted in bad faith, expenses, including reasonable attorneys' fees expended in defending against the seizure of any noncounterfeit or noninfringing goods.
(2) A person seeking a recovery pursuant to this subsection may join any surety on a bond posted pursuant to subsection (d) of this Code section, and any judgment of liability shall bind the person liable and the surety jointly and severally, but the liability of the surety shall be limited to the amount of the bond.
(3) Any person entitled to seek recovery under this subsection may, within 30 days after the date of seizure, object to the bond on the grounds that the surety or the amount of bond is insufficient.