Opinion
Civil Action 21 Civ. 8108 (PAE)
10-15-2021
MATTEL, INC. Plaintiff v. WWW.POWER-WHEELS-OUTLET.COM, WWW.POWERWHEELS-SALE.COM and WWW.POWERWHEEL-US.SHOP, Defendants
Jason M. Drangel (JD 7204) Ashly E. Sands (AS 7715) Kerry B. Brownlee (KB 0823) Danielle S. Futterman (DY 4228) EPSTEIN DRANGEL LLP Attorneys for Plaintiff Mattel, Inc.
Jason M. Drangel (JD 7204)
Ashly E. Sands (AS 7715)
Kerry B. Brownlee (KB 0823)
Danielle S. Futterman (DY 4228)
EPSTEIN DRANGEL LLP
Attorneys for Plaintiff Mattel, Inc.
1) TEMPORARY RESTRAINING ORDER; 2) ORDER RESTRAINING DEFENDANTS' WEBSITES AND DEFENDANTS' ASSETS WITH THE FINANCIAL INSTITUTIONS; 3) ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE; 4) ORDER AUTHORIZING BIFURCATED AND ALTERNATIVE SERVICE; AND 5) ORDER AUTHORIZING EXPEDITED DISCOVERY
PAUL A. ENGELMAYER UNITED STATES DISTRICT JUDGE
GLOSSARY
Term
Definition
Plaintiff or Mattel
Mattel, Inc.
Defendants
www.power-wheels-outlet.com, www.powerwheels-sale.com and www.powerwheel-us.shop
Cloudflare
Cloudflare, Inc., with an address of 101 Townsend Street, San Francisco, California 94107, and any and all affiliated companies, which operate a cloud-based web infrastructure platform, available at www.cloudflare.com, that enables capabilities to host static websites on a content delivery network
Dynadot
Dynadot, LLC, with an address of 210 S Ellsworth Ave #345 San Mateo, California 94401, and any and all affiliated companies, which operate an ICANN accredited domain name registrar and web hosting company, available at www.dynadot.com, that allows consumers to register domain names and create websites
Epstein Drangel
Epstein Drangel LLP, counsel for Plaintiff
New York Address
244 Madison Ave, Suite 411, New York, NY 10016
Complaint
Plaintiffs instant Complaint
Application
Plaintiffs ex parte application for: 1) a temporary restraining order; 2) an order restraining Defendants' Websites (as defined infra) and Defendants' Assets (as defined infra) with the Financial Institutions (as defined infra); 3) an order to show cause why a preliminary injunction should not issue; 4) an order authorizing bifurcated and alternative service; and 5) an order authorizing expedited discovery
Moore Dec.
Declaration of Mchael Moore in Support of Plaintiffs Application
Futterman Dec.
Declaration of Danielle S. Futterman in Support of Plaintiffs Application
Mattel Products
Plaintiffs children's toys, games, playthings, and other products, and/or its iconic sub-brands, including, but not limited to: Barbie, UNO, Thomas & Friends, Hot Wheels, Power Wheels, American Girl and Fisher-Price
Power Wheels Products
Battery-powered ride-on vehicles for toddlers and preschoolers, that come in a variety of models including cars, trucks and ATVs
Power Wheels Marks
U.S. Trademark Registration Nos.: 1, 374, 017 for "POWER WHEELS" for goods in Class 28; 1, 671, 657 for "POWER WHEELS" for goods in Class 9; 5, 504, 969 for POWER WHEELS/ for goods in Classes 9 and 28; and 5, 763, 877 for POWER WHEELS/ for goods in Class 9
Plaintiffs Website
Plaintiffs wholly owned subsidiary, Fisher Price's fully interactive website, located at https://www.fisher-price.com
Counterfeit Products
Defendants' products advertised, offered for sale and/or sold by Defendants via Defendants' Websites (as defined infra), which use the Power Wheels Marks or at the very least, marks that are confusingly similar thereto
Defendants' Websites
Any and all fully interactive websites held by or associated with Defendants, their respective officers, employees, agents, servants and all persons in active concert or participation with any of them, that use the Power Wheels Marks, that they operate to communicate with consumers regarding their Counterfeit Products and/or through which consumers purchase Counterfeit Products for delivery in the U.S., including, without limitation, Defendants' websites located at www.power-wheels-outlet.com and www.powerwheels-sale.com/; along with any and all of the domain names associated therewith, including the Infringing Domain Names
Infringing Domain Names
www.power-wheels-outlet.com, www.powerwheels-sale.com and www.powerwheel-us.shop
Defendants' Assets
Any and all money, securities or other property or assets of Defendants (whether said assets are located in the U.S. or abroad)
Defendants' Financial Accounts
Any and all financial accounts associated with or utilized by any Defendants or any of Defendants' Websites (whether said accounts are located in the U.S. or abroad)
Financial Institutions
Any banks, financial institutions, credit card companies and payment processing agencies, such as PayPal Inc. ("PayPal"), Payoneer Inc., the Alibaba Group d/b/a Alibaba.com payment services (e.g., Alipay.com Co., Ltd., Ant Financial Services Group), PingPong Global Solutions, Inc. and other companies or agencies that engage in the processing or transfer of money and/or real or personal property of Defendants
Third Party Service
Any third party providing services in connection with
Providers
Defendants' Counterfeit Products and/or Defendants' Websites, including, without limitation, Shopify, Internet Service Providers ("ISP"), back-end service providers, web designers, merchant account providers, any providing shipping and/or fulfillment services, website hosts (such as Cloudflare), domain name registrars (such as Dynadot) and domain name registries
On this day, the Court considered Plaintiffs ex parte application for the following: 1) a temporary restraining order; 2) an order restraining Defendants' Websites and Defendants' Assets with the Financial Institutions; 3) an order to show cause why a preliminary injunction should not issue; 4) an order authorizing bifurcated and alternative service; and 5) an order authorizing expedited discovery against Defendants, Third Party Service Providers and Financial Institutions in light of Defendants' intentional and willful counterfeiting and infringement of the Power Wheels Marks. Having reviewed the Application, Declarations of Michael Moore and Danielle S. Futterman, along with exhibits attached thereto and other evidence submitted in support thereof, the Court makes the following findings of fact and conclusions of law:
Where a defined term is referenced herein and not defined herein, the defined term should be understood as it is defined in the Glossary.
FACTUAL FINDINGS & CONCLUSIONS OF LAW
1. Mattel, through its family of companies, is a leading designer, developer, marketer, manufacturer and distributor of its well-known Mattel Products, including children's toys and games offered under some of America's most iconic and influential sub-brands, such as Barbie, UNO, Thomas & Friends, Hot Wheels, Power Wheels, American Girl and Fisher-Price.
2. Since its founding in 1945, Mattel has been known for creating innovative Mattel Products and experiences that inspire, entertain, and empower children to develop through the world of play.
3. Mattel sells its Mattel Products worldwide through major retailers, quality toy stores and online marketplaces, including, but not limited to: Wal-Mart, Target Stores, Walgreens, Amazon and many others.
4. Mattel and its Mattel Products have been consistently recognized as leaders in the toy and entertainment categories. For example, in 2020 alone, Mattel was recognized with a total of four prestigious Toy of the Year Awards at the 2020 Toy Associati Year Awards: Action Figure of the Year (for Disney and Pixar Toy Story B the Year (for Pictionary Air®), Infant/Toddler Toy of the Year (for Fisher-I Vehicle of the Year (for Hot Wheels® Mario Kart™ Assorted Vehicle).
5. In addition, in 2021, Mattel was identified as one of TIME Companies.
6. One of the most popular Mattel Brands is Power Wheels, battery-powered rideon vehicles for toddlers and preschoolers that come in a variety of models including cars, trucks and ATVs. Mattel advertises, offers for sale and/or sells its Power Wheels Products through Plaintiff's Website, available at https://www.fisher-price.com. True and correct screenshots of Plaintiff's Website are attached hereto as Exhibit A and incorporated herein by reference.
7. The Power Wheels Products are sold by major U.S. retailers such as Amazon, Target and Walmart.
8. The Power Wheels Products typically retail for between $49.99-499.99.
9. While Plaintiff has gained significant common law trademark and other rights in its Power Wheels Marks and Power Wheels Products through its and/or its predecessor's use, advertising and promotion, Plaintiff has also protected its valuable trademark rights by both acquiring and obtaining federal trademark registrations.
10. For example, Plaintiff is the owner of the Power Wheels Marks (U.S. Trademark Registration Nos.: 1, 374, 017 for “POWER WHEELS” for goods in Class 28; 1, 671, 657 for “POWER WHEELS” for goods in Class 9; 5, 504, 969 for POWER WHEELS for goods in Classes 9 and 28; and 5, 763, 877 for POWER WHEELS for goods in Class 9). True and correct copies of the registrations for the Power Wheels Marks are attached hereto as Exhibit B and incorporated herein by reference.
11. The Power Wheels Marks are currently in use in commerce in connection with the Power Wheels Products. The Power Wheels Marks were first used in commerce on or before the dates of first use as reflected on the registrations, attached hereto as Exhibit B.
12. Plaintiff has spent substantial time, money and effort in building up and developing consumer recognition, awareness and goodwill in its Power Wheels Marks and Power Wheels Products.
13. The success of the Power Wheels Products is due in part to Plaintiffs marketing and promotional efforts, and high-quality Power Wheels Products. These efforts include advertising and promotion through television, print, Plaintiffs Website, among other efforts domestically and abroad, including in New York.
14. Plaintiffs success is also due to its use of the highest quality materials and processes in making the Power Wheels Products, which meet or exceed U.S. standards.
15. Additionally, Plaintiff owes a substantial amount of the success of the Power Wheels Products to their consumers and word-of-mouth buzz that its consumers have generated.
16. As a result of Plaintiff and its predecessor's efforts, the quality of the Power Wheels Products and the word-of-mouth buzz generated by Plaintiffs consumers, the Power Wheels Marks have become prominently placed in the minds of the public. Members of the public have become familiar with the Power Wheels Marks and Power Wheels Products and have come to associate them exclusively with Plaintiff. Plaintiff has acquired a valuable reputation and goodwill among the public as a result of such associations.
17. Plaintiff has gone to great lengths to protect its interests in the Power Wheels Marks and Power Wheels Products. No one other than Plaintiff is authorized to manufacture, import, export, advertise, offer for sale or sell any goods utilizing the Power Wheels Marks, or otherwise use the Power Wheels Marks, without the express permission of Plaintiff.
18. Plaintiff is likely to prevail on its Lanham Act claims at trial.
19. As a result of Defendants' infringements, Plaintiff, as well as consumers, are likely to suffer immediate and irreparable losses, damages and injuries before Defendants can be heard in opposition, unless Plaintiffs Application for ex parte relief is granted:
a. Defendants have offered for sale and/or sold substandard Counterfeit Products in connection with the Power Wheels Marks, without Plaintiffs authorization;
b. Plaintiff has well-founded fears that more of Defendants' Websites and Defendants' Counterfeit Products will appear in the marketplace; that consumers may be misled, confused and disappointed by the quality of Defendants' Counterfeit Products, resulting in injury to Plaintiff s reputation and goodwill; and that Plaintiff may suffer loss of sales for its Power Wheels Products; and
c. Plaintiff has well-founded fears that if it proceeds on notice to Defendants on this Application, Defendants will: (i) secret, conceal, transfer or otherwise dispose of their ill-gotten proceeds from Defendants' Websites and/or Defendants' Counterfeit Products, and records relating thereto that are in their possession or under their control; (ii) secret, conceal, destroy, alter, sell-off, transfer or otherwise dispose of or deal with Counterfeit Products or other goods that infringe the Power Wheels Marks, the means of obtaining or manufacturing such Counterfeit Products, and records relating thereto that are in their possession or under their control, (iii) inform suppliers and others of Plaintiff s claims with the result being that those suppliers and others
may also secret, conceal, sell-off or otherwise dispose of Counterfeit Products infringing the Power Wheels Marks, the means of obtaining or manufacturing such Counterfeit Products, and records relating thereto that are in their possession or under their control, and/or (iv) change the host of Defendants' Websites, create new websites and/or new domain names through which Defendants will continue using the Power Wheels Marks, that are identical to, substantially indistinguishable from, or confusingly similar to, the Power Wheels Marks and/or offering for sale and selling Counterfeit Products with little to no consequence.
20. The balance of potential harm to Defendants of being prevented from continuing to profit from their illegal and infringing activities if a temporary restraining order is issued is far outweighed by the potential harm to Plaintiff, its business, the goodwill and reputation built up in and associated with the Power Wheels Marks and to its reputation if a temporary restraining order is not issued.
21. Public interest favors issuance of a temporary restraining order in order to protect Plaintiff s interests in and to its Power Wheels Marks, and to protect the public from being deceived and defrauded by Defendants' passing off of their substandard Counterfeit Products as Power Wheels Products, as those of Plaintiff.
22. Plaintiff has not publicized its request for a temporary restraining order in any way.
23. Service on Defendants via electronic means is reasonably calculated to result in proper notice to Defendants.
24. If Defendants are given notice of the Application, they are likely to secret, conceal, transfer or otherwise dispose of their ill-gotten proceeds from their use, infringement, and counterfeiting of the Power Wheels Marks, and sales of Counterfeit Products or other goods infringing the Power Wheels Marks. Therefore, good cause exists for granting Plaintiffs request for an asset restraining order. It typically takes the Financial Institutions a minimum of five (5) days after service of the Order to locate, attach and freeze Defendants' Assets and/or Defendants' Financial Accounts. As such, the Court allows enough time for Plaintiff to serve the Financial Institutions and Third Party Service Providers with this Order, and for the Financial Institutions and Third Party Service Providers to comply with the Paragraphs I(B)(1) through I(B)(2) and I(C)(1) through I(C)(2) of this Order, respectively, before requiring service on Defendants.
25. Similarly, if Defendants are given notice of the Application, they are likely to destroy, move, hide or otherwise make inaccessible to Plaintiff the records and documents relating to Defendants' Websites and/or Defendants' manufacturing, importation, exportation, advertising, marketing, promotion, distribution, display, offering for sale and/or sale of Counterfeit Products. Therefore, Plaintiff has good cause to be granted expedited discovery.
ORDER
Based on the foregoing findings of fact and conclusions of law, Plaintiffs Application is hereby GRANTED as follows:
I. Temporary Restraining Order
A. IT IS HEREBY ORDERED, as sufficient cause has been shown, that Defendants are hereby restrained and enjoined from engaging in any of the following acts or omissions for fourteen (14) days from the date of this Order, and for such further period as may be provided by order of this Court:
1) manufacturing, importing, exporting, advertising, marketing, promoting, distributing, displaying, offering for sale, selling and/or otherwise dealing in Counterfeit Products;
2) directly or indirectly infringing in any manner Plaintiffs Power Wheels Marks;
3) using any reproduction, counterfeit, copy or colorable imitation of Plaintiff s Power Wheels Marks to identify any goods or services not authorized by Plaintiff;
4) using Plaintiffs Power Wheels Marks and/or any other marks that are confusingly similar to the Power Wheels Marks on or in connection with Defendants' Websites and/or Defendants' manufacturing, importation, exportation, advertising, marketing, promotion, distribution, offering for sale, sale and/or otherwise dealing in Counterfeit Products;
5) using any false designation of origin or false description, or engaging in any action that is likely to cause confusion, cause mistake and/or to deceive members of the trade and/or the public as to the affiliation, connection or association of any product manufactured, imported, exported, advertised, marketed, promoted, distributed, displayed, offered for sale or sold by Defendants with Plaintiff, and/or as to the origin, sponsorship or approval of any product manufactured, imported, exported, advertised, marketed, promoted, distributed, displayed, offered for sale or sold by Defendants, website owned or operated by Defendants, services provided by Defendants and/or Defendants' commercial activities by Plaintiff;
6) secreting, concealing, destroying, altering, selling off, transferring or otherwise disposing of and/or dealing with: (i) Counterfeit Products and/or (ii) any computer files, data, business records, documents or any other records or evidence relating to Defendants' Websites, Defendants' Assets and/or the manufacturing, importation, exportation, advertising, marketing, promotion, distribution, display, offering for sale and/or sale of Counterfeit Products;
7) effecting assignments or transfers, forming new entities or associations, or utilizing any other device for the purposes of circumventing or otherwise avoiding the prohibitions set forth in this Order;
8) linking, transferring, selling and/or operating Defendants' Websites;
9) registering, trafficking in or using any domain names that incorporate any of Plaintiff s Power Wheels Marks, or any colorable imitation thereof, including the Infringing Domain Names; and
10) knowingly instructing any other person or business entity to engage in any of the activities referred to in subparagraphs I(A)(1) through I(A)(9) above, I(B)(1) through I(B)(2) and I(C)(1) through I(C)(2) below.
B. IT IS HEREBY ORDERED, as sufficient cause has been shown, that the Third Party Service Providers and Financial Institutions are hereby restrained and enjoined from engaging in any of the following acts or omissions for fourteen (14) days from the date of this order, and for such further period as may be provided by order of the Court:
1) secreting, concealing, transferring, disposing of, withdrawing, encumbering or paying Defendants' Assets from or to Defendants' Financial Accounts until further ordered by this Court;
2) secreting, concealing, destroying, altering, selling off, transferring or otherwise disposing of and/or dealing with any computer files, data, business records, documents or any other records or evidence relating to Defendants' Assets and Defendants' Financial Accounts; and
3) knowingly instructing any person or business entity to engage in any of the activities referred to in subparagraphs I(A)(I) through I(A)(9), I(B)(1) through I(B)(2) above and I(C)(1) through I(C)(2) below.
C. IT IS HEREBY ORDERED, as sufficient cause has been shown, that the Third Party Service Providers are hereby restrained and enjoined from engaging in any of the following acts or omissions for fourteen (14) days from the date of this order, and for such further period as may be provided by order of the Court:
1) within five (5) days after receipt of service of this Order, providing services to Defendants, including, without limitation, those relating to the continued operation of Defendants' Websites;
2) permitting the transfer, sale and/or assignment of Defendants' Websites, including the Infringing Domain Names; and
3) knowingly instructing any other person or business entity to engage in any of the activities referred to in subparagraphs I(A)(I) through I(A)(9), I(B)(1) through I(B)(2) and I(C)(1) through I(C)(2) above.
II. Order to Show Cause Why A Preliminary Injunction Should Not Issue And Order Of Notice
A. Defendants are hereby ORDERED to show cause before this Court in Courtroom 1305 of the United States District Court for the Southern District of New York at 500 Pearl Street/40 Foley Square, New York, New York on October 15, 2021 at 9 a.m., why a preliminary injunction, pursuant to Fed.R.Civ.P. 65(a), should not issue.
B. IT IS FURTHER ORDERED that opposing papers, if any, shall be filed electronically with the Court and served on Plaintiffs counsel by delivering copies thereof to the office of Epstein Drangel LLP at 60 East 42nd Street, Suite 2520, New York, NY 10165, Attn: Jason M. Drangel on or before October 8, 2021. Plaintiff shall file any Reply papers on or before October 12, 2021.
C. IT IS FURTHER ORDERED that Defendants are hereby given notice that failure to appear at the show cause hearing scheduled in Paragraph II(A) above may result in the imposition of a preliminary injunction against them pursuant to Fed.R.Civ.P. 65, which may take effect immediately upon the expiration of this Order, and may extend throughout the length of the litigation under the same terms and conditions set forth in this Order.
III. Asset Restraining Order
A. IT IS FURTHER ORDERED pursuant to Fed.R.Civ.P. 64 and 65 and NY. C.P.L.R. 6201 and this Court's inherent equitable power to issue provisional remedies ancillary to its authority to provide final equitable relief, as sufficient cause has been shown, that within five (5) days of receipt of service of this Order, the Financial Institutions shall locate and attach Defendants' Financial Accounts and shall provide written confirmation of such attachment to Plaintiffs counsel.
IV. Order Authorizing Bifurcated and Alternative Service by Electronic Means
A. IT IS FURTHER ORDERED pursuant to Fed.R.Civ.P. 4(f)(3), as sufficient cause has been shown, that service may be made on, and shall be deemed effective as to Defendants if it is completed by the following means:
1) delivery of: (i) PDF copies of this Order together with the Summons and Complaint, and all papers filed in support of Plaintiff s Application seeking this Order, or (ii) a link to a secure website (including NutStore, a large mail link created through Rmail.com and via website publication through a specific page dedicated to this lawsuit accessible through ipcounselorslawsuit.com) where each Defendant will be able to download PDF copies of
this Order together with the Summons and Complaint, and all papers filed in support of Plaintiffs Application seeking this Order to Defendants' e-mail addresses, je24zn@126.com, al3761721634@hotmail.com andjanwitsytr07@gmail.com.
B. IT IS FURTHER ORDERED, as sufficient cause has been shown, that such alternative service by electronic means ordered herein shall be deemed effective as to Defendants, Third Party Service Providers and Financial Institutions throughout the pendency of this action.
C. IT IS FURTHER ORDERED, as sufficient cause has been shown, that such alternative service by electronic means ordered herein shall be made within five (5) days of the Financial Institutions and Third Party Service Providers' compliance with Paragraphs III(A) and V(B)-(C) of this Order.
D. IT IS FURTHER ORDERED, as sufficient cause has been shown, that service may be made and shall be deemed effective as to the following if it is completed by the below means:
1) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where PayPal Inc. will be able to download a PDF copy of this Order via electronic mail to PayPal Legal Specialist at EEOMALegalSpecialist@paypal.com;
1) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where Dynadot will be able to download a PDF copy of this Order via electronic mail to abuse@dynadot.com; and
2) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where Cloudflare will be able to download a PDF copy of this Order via electronic mail to abuse@cloudflare.com.
V. Order Authorizing Expedited Discovery
A. IT IS FURTHER ORDERED, as sufficient cause has been shown, that:
1) Within fourteen (14) days after receiving service of this Order, each Defendant shall serve upon Plaintiffs counsel a written report under oath providing:
a. their true name and physical address;
b. the name and location and URL of any and all websites that Defendants own and/or operate;
c. the complete sales records for any and all sales of Counterfeit Products, including but not limited to number of units sold, the price per unit, total gross revenues received (in U.S. dollars) and the dates thereof;
d. the complete sales records for any and all sales of Counterfeit Products made to consumers located in New York, including but not limited to number of units sold, the price per unit, total gross revenues received (in U.S. dollars) and the dates thereof;
e. the account details for any and all of Defendants' Financial Accounts, including, but not limited to, the account numbers and current account balances; and
f. the steps taken by each Defendant, or other person served, to comply with Section I above.
2) Plaintiff may serve interrogatories pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure as well as Local Civil Rule 33.3 of the Local Rules for the Southern and Eastern Districts of New York and Defendants who are served with this Order shall provide written responses under oath to such interrogatories within fourteen (14) days of service to Plaintiffs counsel.
3) Plaintiff may serve requests for the production of documents pursuant to Fed.R.Civ.P. 26 and 34, and Defendants who are served with this Order and the requests for the production of documents shall produce all documents responsive to such requests within fourteen (14) days of service to Plaintiffs counsel.
B. IT IS FURTHER ORDERED, as sufficient cause has been shown, that within five (5) days of receipt of service of this Order the Financial Institutions shall identify any and all of Defendants' Financial Accounts, and provide Plaintiffs counsel with a summary report containing account details for any and all such accounts, which shall include, at a minimum, identifying information for Defendants, including contact information for Defendants (including, but not limited to, mailing addresses and e-mail addresses), account numbers and account balances for any and all of Defendants' Financial Accounts and confirmation of said compliance with this Order.
C. IT IS FURTHER ORDERED, as sufficient cause has been shown, that within five (5) days of receipt of service of this Order, the Third Party Service Providers shall identify any and all of Defendants' Websites, and provide Plaintiffs counsel with a summary report, which shall include, at a minimum, identifying information for Defendants' Websites (i.e., URLs), contact information for Defendants (including, but not limited to, mailing addresses and e-mail addresses) and confirmation of said compliance with this Order.
D. IT IS FURTHER ORDERED, as sufficient cause has been shown, that:
1) Within fourteen (14) days of receiving actual notice of this Order, all Financial Institutions who are served with this Order shall provide Plaintiffs counsel all documents and records in their possession, custody or control (whether located in the U.S. or abroad) relating to any and all of Defendants' Financial Accounts, including, but not limited to, documents and records relating to:
a. account numbers;
b. current account balances;
c. any and all identifying information for Defendants and/or Defendants' Websites, including, but not limited to, names, addresses and contact information;
d. any and all account opening documents and records, including, but not limited to, account applications, signature cards, identification documents and if a business entity, any and all business documents provided for the opening of each and every of Defendants' Financial Accounts;
e. any and all deposits and withdrawals during the previous year from each and every one of Defendants' Financial Accounts and any and all supporting documentation, including, but not limited to, documents sufficient to identify the geographic location(s) of any consumers from which deposits were sent, deposit slips, withdrawal slips, cancelled checks and account statements; and
f. any and all wire transfers into each and every one of Defendants' Financial Accounts during the previous year, including, but not limited to, documents sufficient to show the identity of the destination of the transferred funds, the geographic location(s) of the transferors), the identity of the beneficiary's bank and the beneficiary's account number.
E. IT IS FURTHER ORDERED, as sufficient cause has been shown, that:
1) Within fourteen (14) days of receipt of service of this Order, the Third Party Service Providers shall provide to Plaintiffs counsel all documents and records in their possession, custody or control (whether located in the U.S. or abroad) relating to Defendants' Websites, including, but not limited to, documents and records relating to:
a. account details, including, without limitation, identifying information and URLs for any and all accounts or websites that Defendants have ever had and/or currently maintain with the Third Party Service Providers that were not previously provided pursuant to Paragraph V(C);
b. the identities, location and contact information, including any and all e-mail addresses of Defendants that were not previously provided pursuant to Paragraph V(C);
c. the nature of Defendants' businesses and operations, methods of payment, methods for accepting payment and any and all financial information, including, but not limited to, information associated with Defendants' Websites, a full accounting of Defendants' sales history and listing history under such accounts and Defendants' Financial Accounts with any and all Financial Institutions associated with Defendants' Websites; and
d. Defendants' manufacturing, importation, exportation, advertising, marketing, promotion, distribution, display, offering for sale and/or sale of Counterfeit Products, or any other products bearing the Power Wheels Marks and/or marks that are confusingly similar to, identical to and constitute an infringement of the Power Wheels Marks.
VI. Security Bond
A. IT IS FURTHER ORDERED that Plaintiff shall place security in the amount of twenty-five thousand Dollars ($25,000.00) with the Court, which amount is determined adequate for the payment of any damages any person may be entitled to recover as a result of an improper or wrongful restraint ordered hereunder.
VII. Sealing Order
A. IT IS FURTHER ORDERED that Plaintiffs Complaint and exhibits attached thereto, and Plaintiffs ex parte Application and the Declarations of Michael Moore and Danielle S. Futterman in support thereof and exhibits attached thereto and this Order shall remain sealed until the Financial Institutions and Third Party Service Providers comply with Paragraphs I(B)-(C), III(A) and V(B)-(C) of this Order
SO ORDERED.
(Exhibit A Omitted)
(Exhibit B Omitted)