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Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3074
Experience:  Experienced in intellectual property law
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A photographer has uploaded images to their blog that

Customer Question

A photographer has uploaded images to their blog that identifies me by portrait and has featured my trademarked brand in URL, tag, image files and source code to promote their photography services. We sent a trademark notice with the hosting service and have followed with a notice every week for 2 months. Given the several notices, the hosting company are undoubtedly aware of the damages caused to us and are deliberately trying to undermine our rights by stating "insufficient cause” for our report. What should be the next step to ensure the hosting provider removes the content they are hosting illegally?
Submitted: 2 months ago.
Category: Intellectual Property Law
Expert:  JD 1992 replied 2 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

Expert:  JD 1992 replied 2 months ago.

Since they are ignoring your takedown notices then your only choice is to go ahead and hire a lawyer and file a lawsuit for damages and an injunction. The court will award the attorney's fees as well if you win.

The steps to an injunction are:

1) An Application for TRO (Temporary Restraining Order) is filed along with supporting evidence such as affidavits. Usually the Application for Injunction is made at the same time. The TRO is a temporary measure and is not absolutely required before you get an injunction.
2) An Ex Parte (without the other side present) Hearing is conducted and the judge either issues the TRO or denies it. If the TRO is issued the judge orders a bond set in a sufficient amount to compensate the other side for any damages accumulated while the TRO is in place if the applicant fails to prove their right to an injunction.
3) A hearing on the TRO is set.
4) The TRO and notice of Hearing is served on the defendant.
5) The defendant should immediately begin following the judge's orders.
6) The TRO hearing is held and each side has an opportunity to present evidence and question witnesses.
7) The judge makes the decision on whether to convert the TRO to a Temporary Injunction or not.
8) If the TRO is converted to a Temporary Injunction then the judge sets a new bond to be in place.
9) Discovery is conducted by both sides.
10) A request for hearing date is made on the matter of converting the Temporary Injunction into a Permanent Injunction.
11) The hearing/trial is held on the Permanent Injunction and the judge issues a ruling.

These are what are known as extraordinary remedies and the procedural rules for these as well as the case law are EXTREMELY specific and difficult. If ANY mistakes are made the judge has no choice but to deny the relief and will not likely reconsider it in the future.

Just as an example, getting injunctive relief, both temporary and permanent, requires that evidence be offered of:
1) An immediate need,
2) Which, if not granted, will result in irreparable harm,
3) With no adequate remedy at law, and
4) (on temporary order) The person requesting the injunction is likely to succeed at a full trial on the merits.

If evidence is not offered to meet these four requirements, in a manner that the judge knows this is what the evidence shows, then the petition will be denied.

There are more requirements than this depending on the exact facts of the case but it is very, very easy to mess up one of these and end up having to pay damages to the other side just because your paperwork wasn't done properly.

Expert:  JD 1992 replied 2 months ago.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered.

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