Boot That Fake Merch: Add Ex Parte Seizure Orders to Your Repertoire

Rod Wave, like many other artists, recently obtained an ex parte seizure order from a federal court permitting the seizure and impoundment of fake merchandise infringing on his intellectual property rights in and around his concerts in Charlotte and barring the bootleggers from selling unauthorized merchandise. While a plaintiff would typically have to identify and serve a complaint on an actual defendant in a lawsuit to get this kind of extraordinary relief, the well-known rapper showed the court good reason why that didn’t make sense when it came to bootleg merch.

The key evidence that swayed the court was a demonstration of past similar illegal merch at the rapper’s concerts, the fact that the identities of the bootleggers is never known, and, even when discovered, the bootleggers do not cooperate or show up in court when sued. Based on the court’s review of the request for a temporary restraining order, it found that the circumstances indicated the artist was likely to prevail on his trademark infringement claim, would suffer irreparable harm, the balance of the equities were in his favor, and the seizure order would also be in the public interest.

To satisfy the court that such a seizure order would not be abused, Rod Wave agreed to procedural safeguards, such as the opportunity for a prompt hearing in which any defendants could contest the seizure of their goods and agreeing to a security deposit in the event any defendants are damaged by a wrongful seizure.

While this first round was a success, the rapper ultimately dismissed his case when law enforcement were unable to serve any potential defendants at his concert.  And it remains to be seen if he will ultimately obtain a nationwide seizure order in a future case — so that he doesn’t have to bring similar motions for each stop on his tour. What is clear from this legal victory, however, is that artists are looking at more aggressive options to protect their merch and merch deals, an important source of revenue for many in the music business.