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Skyrocket, LLC v. Comeyun

United States District Court, S.D. New York

January 2, 2020

SKYROCKET, LLC d/b/a SKYROCKET TOYS LLC, Plaintiff
v.
COMEYUN, F2TOYDH, HELLOTANGTANG, HUANGCC31, JOY4TOY, ONETOYS, PINK350, PINK700, PINKTN, VMNICE, YAN350 and YUN350, Defendants

          PRELIMINARY INJUNCTION ORDER

          HON. PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE

         GLOSSARY

Term

Definition

Plaintiff or Skyrocket

Skyrocket, LLC d/b/a Skyrocket Toys LLC

Defendants

Comeyun, F2toydh, Hellotangtang, Huangcc3l, Joy4toy, Onetoys, Pink350, Pink700, Pinktn, Vmnice, Yan350 and Yun350

DHgate

Dunhuang Group d/b/a DHgate.com, an online marketplace and e-commerce platform which allows manufacturers, wholesalers and other third-party merchants, like Defendants, to advertise, distribute, offer for sale, sell and ship their wholesale and retail products originating from China directly to consumers worldwide and specifically to consumers residing in the U.S., including New York

Epstein Drangel

Epstein Drangel LLP, counsel for Plaintiff

New York Address

244 Madison Ave, Suite 411, New York, New York 10016

Complaint

Plaintiffs Complaint filed on December 19, 2019

Application

Plaintiffs Ex Parte Application for: 1) a temporary restraining order; 2) an order restraining Merchant Storefronts (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 filed on December 19, 2019

Cervantes Dec.

Declaration of Giovanni Cervantes in Support of Plaintiffs Application

Scully Dec.

Declaration of Brieanne Scully in Support of Plaintiff s Application

Blume Products

Collectible dolls that come in flower pots, with revolutionary patent-pending reveal technology, that bloom when water is added

Blume Mark

U.S. Trademark Registration No. 5, 789, 875 for "BLUME" for a variety of goods in Class 28

Blume Work

U.S. Copyright Registration No. VAu 1-346-297, covering the Blume Series 1 Characters, Packaging, Instruction Sheet and Collectable Guide

Counterfeit Products

Products bearing or used in connection with the Blume Mark and/or Blume Work, and/or products in packaging and/or containing labels and/or hang tags bearing the Blume Mark and/or Blume Work, and/or bearing or used in connection with marks and/or artwork that are confusingly or substantially similar to the Blume Mark and/or Blume Work and/or products that are identical or confusingly or substantially similar to the Blume Products

Infringing Listings

Defendants' listings for Counterfeit Products

User Accounts

Any and all websites and any and all accounts with online marketplace platforms such as DHgate, as well as any and all as yet undiscovered accounts with additional online marketplace platforms held by or associated with Defendants, their respective officers, employees, agents, servants and all persons in active concert or participation with any of them

Merchant Storefronts

Any and all User Accounts through which Defendants, their respective officers, employees, agents, servants and all persons in active concert or participation with any of them operate storefronts to manufacture, import, export, advertise, market, promote, distribute, display, offer for sale, sell and/or otherwise deal in Counterfeit Products, which are held by or associated with Defendants, their respective officers, employees, agents, servants and all persons in active concert or participation with any of them

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 Defendants' User Accounts or Merchant Storefront(s) (whether said account is located in the U.S. or abroad)

Financial Institutions

Any and all banks, financial institutions, credit card companies and payment processing agencies, such as DHgate (e.g., DHpay.com), PayPal Inc. ("PayPal"), Payoneer Inc. ("Payoneer") and PingPong Global Solutions, Inc. ("PingPong") 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 Providers

Online platforms, including, without limitation, those owned and operated, directly or indirectly by DHgate, as well as any and all as yet undiscovered online marketplace platforms and/or entities through which Defendants, their respective officers, employees, agents, servants and all persons in active concert or participation with any of them manufacture, import, export, advertise, market, promote, distribute, offer for sale, sell and/or otherwise deal in Counterfeit Products which are hereinafter identified as a result of any order entered in this action, or otherwise

         WHERAS, Plaintiff having moved ex parte on December 19, 2019 against Defendants for the following: 1) a temporary restraining order; 2) an order restraining Merchant Storefronts 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;

         WHEREAS, the Court entered an Order granting Plaintiffs Application on December 19, 2019 which ordered Defendants to appear on December 30, 2019 at 10:00 a.m. to show cause why a preliminary injunction should not issue ("Show Cause Hearing");

         WHEREAS on December 20, 2019, Plaintiff filed a letter requesting that the Court modify the briefing schedule ordered in the TRO;

         WHEREAS, the Court subsequently entered an Order on December 20, 2019, modifying the briefing schedule and rescheduling the Show Cause Hearing to January 2, 2020 at 10:45 a.m. ("December 20, 2019 Order");

         WHEREAS, on December 24, 2019, pursuant to the alternative methods of service authorized by the TRO, Plaintiff served the Summons, Complaint, TRO, all papers filed in support of the Application and the December 20, 2019 Order on each and every Defendant;

         WHEREAS, on January 2, 2020 at 10:45 a.m., Plaintiff appeared at the Show Cause Hearing, however, no Defendants appeared.

         ORDER

         1. The injunctive relief previously granted in the TRO shall remain in place through the pendency of this litigation, and issuing this Order is warranted under Federal Rule of Civil Procedure 65 and Section 34 of the Lanham Act.

         a) Accordingly, Defendants are hereby restrained and enjoined from engaging in any of the following acts or omissions pending the final hearing and determination of this action or until further order of the Court:

i. manufacturing, importing, exporting, advertising, marketing, promoting, distributing, displaying, offering for sale, selling and/or otherwise dealing in Counterfeit Products or any other products bearing the Blume Mark and/or Blume Work and/or marks or artwork that are confusingly or substantially similar to, identical to and constitute a counterfeiting and/or infringement of the Blume Mark and/or Blume Work;
ii. directly or indirectly infringing in any manner Plaintiffs Blume Mark and/or Blume Work;
iii. using any reproduction, counterfeit, copy or colorable imitation of Plaintiffs Blume Mark and/or Blume Work, to identify any goods or services not authorized by Plaintiff;
iv. using Plaintiffs Blume Mark and/or Blume Work or any other marks and/or artwork that are confusingly or substantially similar to the Blume Mark and/or Blume Work on or in connection with Defendants' manufacturing, importing, exporting, advertising, marketing, promoting, distributing, displaying, offering for sale, selling and/or otherwise dealing in Counterfeit Products;
v. using any false designation of origin or false description, or engaging in any action which 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 and Defendants' commercial activities and Plaintiff;
vi. 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 their User Accounts, Merchant Storefronts or Defendants' Assets and the manufacture, importation, exportation, advertising, ...

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