World Wrestling Entertainment (“WWE”) has serious problems at many of its events. It seems that purveyors of WWE counterfeit merchandise set up shop at or near event locations. As such, the WWE loses a number of lucrative merchandise sales at events. The problem facing the WWE has been how to stop such nameless, faceless counterfeiters who typically evade detection or enforcement consequences. With scant resources, many local police departments are not willing or able to provide the type of “boots on the ground” enforcement required to stamp out sidewalk counterfeits.
So how does a brand owner succeed against shadowy, anonymous wrongdoers? The WWE took the novel approach of seeking an ex parte temporary restraining order and seizure order against future, unnamed counterfeiters. This is highly unusual in that most trademark enforcement actions are reactive and backward looking in that they seek to redress wrongs already committed. Certainly, in the online trademark infringement context, relief is routinely granted against anonymous “John Doe” defendants. In such cases, however, there is existing admissible evidence of the infringements. And typically such infringement is rectified easily via a seizure of the very domain names used to perpetrate the anonymous counterfeiting.