Estados Unidos de América
Observancia de los derechos de propiedad intelectual
Question 5 of the Checklist of Issues on Enforcement 7. Please indicate the criteria for determining the duration of a "temporary" injunction and the circumstances, if any, under which a right holder may procure an extension of time. Please describe, in greater detail, the proceedings for enforcement of "permanent" and "temporary" injunctions by federal marshals and set for the relevant statutory or other legal authority.
To obtain a preliminary injunction, courts have generally required that the moving party demonstrate some or all of the following: a substantial likelihood that it will prevail on the merits of its case; that it will suffer irreparable injury if preliminary relief is not granted; that the threatened injury to it outweighs the harm an injunction might cause the defendant; and that the preliminary injunction will not have a serious adverse effect on the public interest. A temporary restraining order (TRO) may be granted by a court where it clearly appears from specific facts shown by an affidavit or by a verified complaint that immediate and irreparable injury will result before the adverse party or his attorney can be heard in opposition, and the complainant’s attorney has certified to the court, in writing, the efforts which have been made to give notice and the reasons supporting his claim that notice should not be required. Security is required as a condition for obtaining a TRO or a preliminary injunction in an amount sufficient to cover costs and damages to the party wrongfully enjoined or restrained. TROs expire within ten days unless extended for good cause shown or if the adverse party consents to a longer period. A motion for preliminary injunction must be scheduled for a hearing at the earliest possible time and, the party obtaining the TRO does not proceed with the request for preliminary injunctions, the TRO will be dissolved. See Rule 65, Federal Rules of Civil Procedure. Rule 70 of the Federal Rules of Civil Procedure authorizes Federal judges to direct that a conveyance of land, delivery of deeds or documents, or performance of any other specific act provided for in a judgment be done at the cost of a disobedient party by some other person appointed by the court. A party entitled to performance would apply to the court for a writ of attachment or sequestration against the property of the disobedient party to compel compliance with the judgment. The court may also adjudge a non performing party in contempt. Section 566(a) of title 28, United States Code, states that the primary role and mission of the United States Marshals Service is to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals and the Court of International Trade. Subsection 566(c) states that: "Except as otherwise provided by law or Rule of Procedure, the United States Marshals Service shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties".