Opinion
Civil Action 22-1124
04-29-2022
BESTWAY INFLATABLES & MATERIALS CORP. v. DORTHEA MILLS, ET AL.
ORDER
R. BARCLAY SURRICK, J.
AND NOW, this 28th day of April 2022, upon consideration of Plaintiff Bestway Inflatables & Material Corp.'s Ex Parte Motion for Temporary Restraining Order, Preliminary Injunction, and Immediate Discovery (ECF No. 2) and the oral argument at the April 27, 2022 preliminary injunction hearing, it is ORDERED that Plaintiff's Motion will be GRANTED as follows:
1. Plaintiff's request for a Preliminary Injunction is GRANTED.
a. The findings of fact and conclusions of law are set forth in the accompanying memorandum opinion.
b. A security deposit in the amount of $999 is held by the Clerk of the Court in accordance with the Court's Order entered April 8, 2022 (ECF No. 5) should Defendants suffer recoverable damages from issuance of this injunction.
2. Plaintiff's request to freeze Defendants' PayPal accounts known to be associated with the infringing website is GRANTED.
a. The PayPal accounts associated with this site, including “Baoding Kuanzhai Trading Co., Ltd.” and “Fucheng Xinyu Trading Co., Ltd” and the accounts associated with the email addresses bestwayonsale@outlook.com and
services@bestwayonsale.com are ordered to be frozen. No funds shall be removed from the accounts without further order of this Court. If there are any bank accounts within which funds from the foregoing PayPal accounts have been transferred into, PayPal is ordered to freeze any other PayPal accounts that transfer funds into the same bank account(s). PayPal shall provide Bestway with an accounting of all funds frozen pursuant to this Order within 5 days of receipt of the Order.
3. Plaintiff's request to engage in immediate discovery is GRANTED, including but not limited to issuing subpoenas to third parties.
4. Plaintiff's request to serve Defendants by email is GRANTED.
a. Bestway shall serve this Order by sending a copy of it to bestwayonsale@outlook.com and services@bestwayonsale.com and shall file proof of service no later than seven (7) days after issuance of this Order.
b. Bestway may delay service of this Order until after it is served upon PayPal, and PayPal confirms it has taken steps to prohibit any funds from being transferred from the accounts listed above. Thereafter, Bestway shall also complete the “Contact Us” form found at bestwayonsale.com/contact (a) informing Defendants that a lawsuit was filed against them in the United States District Court for the Eastern District of Pennsylvania assigned Civil Action No. 2:22-cv-01124-RBS, (b) that a preliminary junction was issued preventing the continued operation of bestwayonsale.com, and (c) that all documents filed in the action are available at https://ecf.paed.uscourts.gov.
c. All future pleadings may be served via email to bestwayonsale@outlook.com, and services@bestwayonsale.com.
5. Defendants and each of their agents, servants, employees, attorneys, and any other persons who are in active concert or participation with any of them are prohibited from:
a. Using Bestway's trademarks, including but not limited to any of the trademarks identified below, in connection with the production, sale, importation, offering for sale, or advertising of any products:
i. Registered Marks:
1. Bestway (Design) - Reg. No. 5994966
2. Bestway - Reg. No. 5702452
3. Bestway - Reg. No. 2748177
4. BLOBZTER - Reg. No. 5414243
5. CHEMCONNECT - Reg. No. 6486967
6. COOLERZ - Reg. No. 5095945
7. FAST SET - Reg. No. 3442181
8. FAST SET - Reg. No. 2743728
9. FILL N' FUN - Reg. No. 76542652
10. FLOWCLEAR - Reg. No. 5457592
11. FREEZE SHIELD - Reg. No. 618013
12. H2O GO! (Design) - Reg. No. 4940366
13. H2O GO - Reg. No. 4741974
14. HYDRO FORCE - Reg. No. 2967876
15. HYDROJET - Reg. No. 6465492
16. HYDROJET PRO - Reg. No. 6505863
17. POWER STEEL - Reg. No. 4827864
18. SIDEWINDER - Reg. No. 6064215
19. STEEL PRO - Reg. No. 3006426
20. STEEL PRO MAX - Reg. No. 5628831
ii. Common Law Mark:
1. TRITECH - Serial No. 90650195
b. Engaging in any action to pass off non-genuine Bestway products or product offerings as genuine Bestway products.
c. Engaging in further actions to interfere with Bestway's rights in its marks or in damaging Bestway's goodwill or reputation.
d. Continuing to operate bestwayonsale.com, and any similar site(s) containing content that infringes on Bestway's trademark rights.
6. Defendants shall immediately take down any website, including but not limited to bestwayonsale.com, that contains any unlawful depiction, description, or advertisement of a product that infringes Plaintiff's intellectual property asserted in the present action. The registrar of bestwayonsale.com, NameCheap, Inc., and any subsequent registrar, is ordered to immediately lock the domain, remove all existing Domain Name Server (DNS) entries, and prevent the transfer of the domain name until further order of this Court.
IT IS SO ORDERED.