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This entry was published on 2015-02-27
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SECTION 360-M
Remedies
General Business (GBS) CHAPTER 20, ARTICLE 24
§ 360-m. Remedies. 1. Any owner of a mark registered under this
article may proceed by suit 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 said court deemed
just and reasonable, and may require the defendants to pay to such owner
all profits derived from and/or all damages suffered by reason of such
wrongful manufacture, use, display or sale; and such court may also
order that any such counterfeits or imitations in the possession or
under the control of any defendant in such case be delivered to an
officer of the court, or to the complainant, to be destroyed or donated.
The court, in its discretion, may enter judgment for an amount not to
exceed three times such profits and damages and/or reasonable attorneys'
fees of the prevailing party in such cases where the court finds the
other party committed such wrongful acts with knowledge or in bad faith
or otherwise as according to the circumstances of this case. The
enumeration of any right or remedy herein shall not affect a
registrant's right to prosecute under the penal law.

2. If a court makes a determination that the counterfeit or imitation
products should be donated, then notice of that determination shall be
given to the lawful mark owner of the products. The notice shall state
that the court intends to donate the seized products to help indigent
individuals and that the donation will proceed unless the lawful mark
owner objects to the donation, in writing. The lawful mark owner will
have thirty days to object to the court to the donation. If the lawful
mark owner does not object, or gives no response within that period
despite having received the notice, then the court shall take that as a
granting of consent by the lawful mark owner that the donation should
proceed.

3. The counterfeit or imitation products may only be given to a
not-for-profit corporation that has an established history of providing
goods and services to indigent individuals. Organizations may petition
the court to be considered a recipient of the counterfeit or imitation
products. The judge, in his or her sole discretion, shall determine
whether an organization qualifies pursuant to this subdivision and which
organization shall receive the counterfeit or imitation products.

4. Any counterfeit or imitation products received by an organization
through this section may not be sold by the organization, nor may any
person or entity in possession of any of these products sell such
products.

5. Any not-for-profit corporation that has received counterfeit or
imitation products through this section must have the products'
identifying lawful mark tags removed or have the products marked,
altered, imprinted or indelibly stamped so as to prevent their resale or
any confusion with the actual products of the lawful mark owner. Such
products must also be inspected by the not-for-profit corporation to
ensure that they are in a condition consistent with the federal consumer
safety standards that would ordinarily apply to the sale of comparable
legitimate products.

6. Provided, however, that the only counterfeit or imitation products
that may be donated pursuant to this section shall be clothing,
including shoes, and all other counterfeit or imitation products must be
destroyed in accordance with this section or any other provision of
applicable law.