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61 Denv. L.J. 767 (1983-1984)
Federal Ex Parte Temporary Relief

handle is hein.journals/denlr61 and id is 791 raw text is: FEDERAL Ex PARTE TEMPORARY RELIEF ROBERT C. DORR* MARK TRAPHAGEN** INTRODUCTION The old equitable remedy of ex parte temporary relief has been resur- rected recently in federal law. Although known to English law since the twelfth century,' temporary relief without notice has enjoyed only periodic acceptance in America. For nearly a century after the federal courts were created, ex parte injunctions were prohibited by statute.2 More recently, their use was disfavored under procedural due process.3 During the last sev- eral years, however, the owners of intellectual property rights have redis- covered ex parte orders and, with the approval of many federal courts, have developed a formidable weapon to be used against infringers and counterfeiters. Misappropriators, infringers, pirates, and smugglers have made millions of dollars by the unauthorized use of valuable intellectual property rights such as trademarks, copyrights, patents, and trade secrets. The increasing caseload of federal courts has created delays which may outlast the brief lifespan of advanced technological products, such as software and video games. The problem is further compounded by the ease with which some infringing merchandise can be hidden or destroyed. For example, suitcases which contain millions of dollars in counterfeit jewelry or integrated circuits can be removed from a court's jurisdiction in a matter of hours. Bootleg T- shirts and other promotional products can be inconspicuously sold by anony- mous vendors shortly before rock concerts and football games.4 Valuable and highly sensitive trade secrets can be disclosed by an unfaithful employee to a competitor in mere minutes. The losses attributed to product counterfeiting, passing off, and copy- right and patent infringement have reached dramatic levels. During 1982 alone, domestic industries lost an estimated six to eight billion dollars in sales from unauthorized use of their intellectual property rights.5 The practice is as widespread as it is lucrative. Products are counterfeited in forty-three * Partner, Burton & Dorr, Denver, Colorado; Graduate University of Denver College of Law, J.D.; Northwestern University, M.S.; and Milwaukee School of Engineering, B.S.E.E. ** J.D., March 1984, University of Denver College of Law. B.A., 1981, University of Dayton. I. Whitelock, Development ofthe Injunction in the United States, 46 AM.L. REV. 725 (1912). 2. Judiciary Act of 1792, Ch. 23, § 5, 1 Stat. 334, 335 (1793). 3. Bainton, Seizure Orders: An lnnovattweJudtcial Response to the Reahites of Trademark Counter- feittg, 73 TRADEMARK REP. 459, 460 (1983). 4. Comment, Rock Performers and the 'yohn Doe Temporary Restraning Order. Dressing Down the T-Shit Pirates, 16 J. MAR. L. REV. 101 (1982). 5. Figures for 1982 compiled by U.S. International Trade Commission. ITC Report Focuses on Foreign Counterfeiting, PAT. TRADEMARK & COPYRIGHT J. (BNA), No. 666, at 360 (Feb. 9, 1984).

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