Ex Parte Seizures — A Heavier Burden For The Victim

The U.S. Court of Appeals for the Third Circuit, affirmed the decision of the district court, refusing to issue an ex parte seizure order of counterfeit goods, finding that the trademark owner did not provide sufficient evidence that an ex parte seizure order was the only adequate way to preserve evidence. Lorillard Tobacco Company v. Bisan Food Corp. Case No. 03-3151 (3rd Cir. July 28, 2004).

Lorillard Tobacco Company, the owner of the Newport brand of cigarettes, filed suit against three retail establishments selling counterfeit Newport cigarettes in New Jersey and requested the court grant an ex parte seizure order against each establishment. The district court refused.

Lorillard argued that the granting of the ex parte order was required as each defendant had an incentive to destroy the goods as they could be used to prove their liability under various criminal statutes, including the New Jersey Unfair Cigarette Sales Act, federal criminal laws relating to trafficking in