Seize counterfeit merchandise, make you humble

World Wrestling Entm't, Inc. v. Unidentified Parties, No. 14-30489 (5th Cir. Nov. 4, 2014).

The WWE—the professional wrestling business—asked the district court to enter an “ex parte seizure order,” an order that would authorize the seizure of bootleg WWE merchandise. Such merchandise infringes WWE’s trademarks. 

As the case name suggests, though, the WWE can’t identify the bootleggers—it just knows that they show up at every WWE event. The district court denied WWE the seizure order on the ground that the WWE couldn’t identify the people against whom the seizure order would be directed. 

The Fifth Circuit reverses. Because WWE is the only authorized seller of WWE merchandise, anybody who’s not the WWE is necessarily a bootlegger. And so, according to the Fifth Circuit, there’s really no problem of identification here. 

But what about somebody who’s legally purchased merchandise from the WWE and is reselling it? That’s not a bootlegger; that’s a reseller. How will the WWE be able to tell resellers apart from bootleggers? The Fifth Circuit waves away that concern in what strikes me as an unconvincing footnote (see footnote 4). 

Finally, the Fifth Circuit addresses the district court’s concern that the WWE’s proposed order would deputize private citizens—extremely muscular private citizens, no doubt—to seize counterfeit merchandise. That is a legitimate concern, the Fifth Circuit says, but the district court can shape the order to meet that concern—for example, by authorizing only law enforcement officers to seize bootleg merchandise.