Opinion
22-4206
06-30-2022
HTT Group LLC, Plaintiff, v. THE INDIVIDUALS, CORPORATIONS, LIMITED LIABILITY COMPANIES, PARTNERSHIPS, AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE A TO THE COMPLAINT, Defendants.
[PROPOSED] PRELIMINARY INJUNCTION ORDER
THIS MATTER comes before the Court on Plaintiff's application, brought by way of Order to Show Cause, for entry of a Preliminary Injunction (the “Application”) against Defendants identified on Schedule A to the [Proposed] Preliminary Injunction Order attached hereto (collectively, the “PI Defendants”) and using at least the domain names identified in the Schedule A to the [Proposed] Preliminary Injunction Order (the “PI Defendant Domain Names”) and online marketplace accounts identified in the Schedule A to the [Proposed] Preliminary Injunction Order (the “Online Marketplace Accounts”); and
THE COURT having reviewed all the papers filed in support of the Application and heard the oral arguments made by Plaintiff's Counsel; and the Court having found that Plaintiff meets the criteria for entry of injunctive relief; and
The Court further finds that it has personal jurisdiction over the PI Defendants because the PI Defendants directly target their business activities toward consumers in the United States, including New York, offering to sell and ship products in this Judicial District. Specifically, the PI Defendants are reaching out to do business with New York residents by operating one or more commercial, interactive Internet Stores through which New York residents can purchase counterfeit products bearing, using, or infringing on Plaintiff's HTTMT trademark as mentioned in the Complaint; and
THE COURT having determined that the evidence submitted in support of the Application establishes
1. Plaintiff is likely to prevail on its trademark infringement and unfair competition claims at trial.
2. As a result of PI Defendants' misconduct, Plaintiff is likely to suffer immediate and irreparable losses, damages, and injuries before PI Defendants can be heard in opposition, unless Plaintiff's Application is granted. For example:
a. PI Defendants have offered for sale substandard and unauthorized Counterfeit Products bearing, using, or infringing on the HTTMT Trademark through accounts with online marketplace platforms including Aliexpress.com, Amazon.com, and eBay.com held by Defendants (the “User Account(s)”).
b. Plaintiff has well-founded fears that more Counterfeit Products will appear in the marketplace using the same User Accounts or new and different User Accounts; that consumers may be misled, confused and disappointed by the quality of these Counterfeit Products, resulting in injury to Plaintiff's reputation and goodwill and, in particular, the reputation and goodwill related to products properly bearing, using, and sold utilizing the HTTMT trademark.
c. Plaintiff has well-founded fears that if they proceed on notice to Defendants on this Application, PI Defendants will: (i) transfer, conceal, dispose of, or otherwise destroy the Counterfeit Products and information concerning the Counterfeit Products; (ii) transfer, conceal, dispose of, or otherwise hide the ill-gotten proceeds from the improper sale of the Counterfeit Products; and/or (iii) close
down existing User Accounts, transfer User Account information, and/or open a new User Account through which PI Defendants can improperly advertise, market, promote, distribute, offer for sale and/or sell the Counterfeit Products under a new or different alias, allowing PI Defendants' misconduct to continue with little or no consequence.
3. Monetary damages fail to address such damage and, therefore, Plaintiff has an inadequate remedy at law; and
4. The public interest is served by entry of this Preliminary Injunction to dispel the public confusion created by PI Defendants' actions; and
THIS COURT having determined, therefore, that injunctive relief previously granted in the Temporary Restraining Order (“TRO”) on June 2, 2022 [Dkt. No. 20] and extended on June 9, 2022 [Dkt. No. 22] should remain in place through the pendency of this litigation and that issuing this Preliminary Injunction is warranted under the Federal Rule of Civil Procedure 65;
NOW THEREFORE, on this thirtieth day of June, 2022, this Court ORDERS that:
1. PI Defendants, their affiliates, officers, agents, servants, employees, attorneys, and all persons acting for, with, by, through, under or in active concert with them, are enjoined and restrained from engaging in any of the following conduct through the pendency of this litigation as referenced below:
a. Using the HTTMT Trademark or any reproductions, counterfeit copies, or colorable imitations thereof in any manner in connection with the distribution, marketing, advertising, offering for sale, or sale of any Counterfeit Products;
b. Passing off, inducing, or enabling others to sell or pass off any product as a genuine HTTMT Product that is not, in fact, Plaintiff's HTTMT Product and/or not produced under the authorization, control, or supervision of Plaintiff and approved by Plaintiff for sale under the HTTMT Trademark;
c. Committing any acts calculated to cause consumers to believe that Defendants' Counterfeit Products are those sold under the authorization,
control, or supervision of Plaintiff, or are sponsored by, approved by, or otherwise connected with Plaintiff;
d. Further infringing the HTTMT Trademark and damaging Plaintiff's goodwill;
e. Shipping, delivering, holding for sale, transferring, or otherwise moving, storing, distributing, returning, or otherwise disposing of, in any manner, products or inventory not manufactured by or for Plaintiff, nor authorized by Plaintiff to be sold or offered for sale, and which bear(s) the HTTMT Trademark or any reproductions, counterfeit copies, or colorable imitations thereof;
2. Within five (5) days of receipt of this Order, eBay.com, Aliexpress.com, and Amazon.com are directed to:
a. disable and cease providing services for any User Accounts through which Defendants engage in the sale of Counterfeit Products, including any User Accounts associated with the Defendants listed on Schedule A to the Complaint (which is also attached hereto), insofar as they relate to Defendants' infringing listings and offering for sale and/or sale of Counterfeit Products;
b. disable and cease displaying any advertisements used by or associated with Defendants in connection with the sale of Counterfeit Products; and c. take all steps necessary to prevent links to the Defendant Internet Stores identified on Schedule A that relate to the Defendants' infringing listings and offering for sale and/or sale of Counterfeit Products from displaying in search
search results, including, but not limited to, removing such links from any search index.
3. Pursuant to Fed.R.Civ.P. 64 and 65, as well as 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, that (i) Amazon, (ii) PayPal, Inc. (“PayPal”), (iii) Payoneer, Inc (“Payoneer”), (iv) Ping Pong Global Solutions Inc (“Ping Pong”), (v) Coinbase Global, Inc (“Coinbase”), (vi) eBay, and (vii) other payment processing service providers (collectively referred to as the “Financial Institutions”) shall locate all accounts associated with PI Defendants (the “PI Defendants' Accounts”) and other assets belonging to Defendants, including any cryptocurrency (the “PI Defendants' Assets”) and shall locate, attach, and restrain the transfer or disposing of monies or funds from Defendants' Accounts, as well as the transfer or disposing of Defendants' Assets, until further ordered by this Court. The Financial Institutions shall provide written confirmation of their compliance with the foregoing to Plaintiff's counsel.
4. Within five (5) days of receipt of service of this Order, the Financial Institutions, including Aliexpress, Amazon and eBay in their capacities as online marketplace platforms, shall provide the following information to Plaintiff's counsel (to the extent such information is in the Financial Institutions' possession, custody, or control):
a. Identifying information for Defendants, including all available contact information (which shall include, if available, all known e-mail addresses and mailing addresses), as well as all associated account numbers and account balances, regardless of the platform or institution.
b. Any User Accounts and/or online marketplace websites affiliated with Defendants that are not listed on Schedule A to the Complaint (and attached hereto).
c. Information concerning any of PI Defendants' Accounts or PI Defendants' Assets including any and all related, connected or otherwise associated accounts or assets, regardless of the hosting platform or
institution.
5. Pursuant to Fed.R.Civ.P. 4(f)(3), as sufficient cause has been shown, that service of this Order and the Summons and Complaint may be made on, and shall be deemed effective as to Defendants if it is completed by the following means:
a. Delivery of: (i) PDF copies of this Order together with the Summons and Complaint; or (ii) a link to a website 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 Plaintiff's Application (the “Link”) to Defendants' e-mail addresses as provided by the Financial Institutions.
b. Or requesting that the Financial Institutions cause Defendants' online marketplace website(s) to redirect to the Link.
6. Such alternative service, as set forth above, shall be made within five (5) days of the Financial Institutions' compliance with Paragraphs 3 and 4 of this Order.
7. Plaintiff shall file unsealed versions of Schedule A to the Complaint and Exhibit 2 to Yan Declaration using the CM/ECF system prior to the expiration of this Order.
8. Any Defendants that are subject to this Order may appear and move to dissolve or modify the Order on two (2) days' notice to Plaintiff or on shorter notice as set by this Court.
9. The five thousand dollars ($5,000) bond posted by Plaintiff shall remain with Court until a final disposition of this case or until this Preliminary Injunction terminates.