56:3-13.22 Additional enforcement action for certain trademark violations.

1. a. In addition to any civil action brought pursuant to subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16) or any criminal prosecution brought for violation of N.J.S. 2C:21-21, N.J.S.2C:21-32 or any other criminal law, or any forfeiture proceeding brought pursuant to N.J.S. 2C:64-1 et seq., if the Attorney General determines that the sale or other distribution of goods or services related to the conduct specified in paragraph (1) or (2) of subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16) poses a threat to the health, safety or welfare of any member of the public, the Attorney General may institute a civil action to enforce any or all of the remedies provided in subsection d. or e. of this section against any person who engages in the conduct specified in paragraphs (1) and (2) of subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16).

b. (1) The action shall be brought in the Superior Court of the county in which the defendant resides, is found, has an agent, transacts business, or in which the reproduction, counterfeit, copy or imitation of the mark is found.

(2) The Attorney General may institute an action under subsection a. of this section without regard to whether the owner or the designee of the owner of the mark has brought a civil action pursuant to subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16); however, a civil action brought by an owner or designee of an owner of the mark pursuant to subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16) may be joined with an action brought by the Attorney General pursuant to subsection a. of this section, and the Attorney General also may seek to enforce the remedies provided in subsection d. or e. of this section by intervening in a pending civil action brought by an owner or designee of an owner of the mark pursuant to subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16).

c. The Attorney General shall establish violation of subsection a. of this section by a preponderance of the evidence. A jury trial shall be available at the request of either party.

d. (1) In an action brought pursuant to subsection a. of this section, the court may grant temporary restraining orders and injunctions, as may be deemed just and reasonable by the court, to prevent any conduct specified in paragraphs (1) and (2) of subsection a. of section 2 of P.L.1987, c.454 (C.56:3-13.16).

(2) Upon proof, by a preponderance of the evidence, of a defendant's violation of subsection a. of this section, the court shall order that any reproduction, counterfeit, copy or imitation in the possession or under the control of any defendant in the case be disposed of or destroyed in accordance with the provisions of section 3 of P.L.1987, c.454 (C.56:3-13.17), and the defendant shall also be liable to the State for the costs of the suit, including reasonable attorney's fees, costs of investigation and litigation.

e. In any civil proceeding brought by the Attorney General under this section relating to the manufacture, use, display or sale of a counterfeit mark, in addition to the remedies in subsection d. of this section, the court shall have jurisdiction to prevent and restrain the manufacture, use, display or sale of a counterfeit mark by issuing appropriate orders, including, in appropriate circumstances, an ex parte temporary restraining order without a seizure, or an ex parte order without notice for the seizure of counterfeit goods and the following materials:

(1) Spurious marks;

(2) The means of making the spurious marks;

(3) Articles in the defendant's possession bearing the spurious marks, or on or in connection with which the spurious marks are intended to be used;

(4) Business records documenting the manufacture, purchase or sale of counterfeit marks.

Any business records seized through an ex parte seizure order under this subsection shall be taken into the custody of the court. The applicant or its representatives shall not be permitted to see these records during the course of the search or thereafter, except under an appropriate protective order, issued on notice to the person from whom the business records were seized, with respect to confidential business information.

f. Ex parte seizure orders under subsection e. of this section shall not be issued unless the Attorney General provides an affidavit clearly setting forth specific facts in support of the need for the seizure order.

(1) The court shall place under seal any order for an ex parte seizure under subsection e. of this section, together with the papers upon which the order was granted, until the party in possession of the goods or materials has been given an opportunity to contest the order.

(2) No order for an ex parte seizure under subsection e. of this section shall be issued unless the court finds that a temporary restraining order on notice to the defendant or an ex parte temporary restraining order would be inadequate to protect the health, safety or welfare of any member of the public.

(3) An order for a seizure under subsection e. of this section shall particularly describe the goods or materials to be seized and the place from which they are to be seized.

(4) The court shall set a hearing date not more than 10 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.

(5) Where an order for seizure is made, the court shall authorize the Attorney General to make the seizure.

g. Nothing in this section shall be deemed to limit the authority of the Attorney General to investigate and prosecute violations of the criminal code, and the forfeiture procedures provided in this subsection are intended to supplement the forfeiture procedures set forth in chapter 64 of Title 2C of the New Jersey Statutes.

L.2004,c.150,s.1.