Title 10, Chapter 1, Section 451
( 10-1-451)
(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. |