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Poof-Slinky, LLC v. Sui

United States District Court, S.D. New York

January 3, 2020

POOF-SLINKY, LLC, Plaintiff
v.
ADAADA, AIXIA, ALBERT N. SUI, AMEESI, ASIEN DIRECT, BABY'S ZONE, BAYNNE, BESHINNING, BIHOOD DIRECT, BLUEDERST, COOLPANDA, DALKEYIE, DDS5391, FA SHAOGE DARA, FACAILY, FORGUN, GBELL, GOHAWK, GOZEBRA, GUINV, GWILL, HENGTONGHUAN, HIMPOKEJG, HOLDSUN, HOWWOH, HSGBVICTS, JYS365, KASIDUANMAIJI, KATEDY, KEAHUP, LESHARP, LIUKUII, MILLET16ZJH, MOVE ON, MQBY413RQ7BT, NACOLA STORE, NAISIDIER, NAOAO, NINGTONGHAIKE, ONBIO, POTATO001, ROLSS, ROSESUMMER, SEPLEGEND, SHINEFAIRY, SIFREE, SOFTMUSIC, STYLEINSIDE, UCHIC, VERHASA, VERTARZ, WEARESH, WINTEFEI, WRISKY, YAN CONTROL BIOTECHNOLOGY, YANBIRDFX, YJZR, ZHENJUN YANG, ZHUHAISHANGXINMAOYIYOUXIANGONGSI, ZYN and SJIPIIIK552 & DISCOUNT STORE, Defendants

          Jason M. Drangel (JD 7204) Ashly E. Sands (AS 7715) Brieanne Scully (BS 3711) Danielle S. Yamali (DY 4228) EPSTEIN DRANGEL LLP Attorneys for Plaintiff POOF-Slinky, LLC.

          PRELIMINARY INJUNCTION ORDER

          HON. EDGARDO RAMOS, UNITED STATES DISTRICT JUDGE.

Term

Definition

Plaintiff or Poof-Slinky

Poof-Slinky, LLC

Defendants

AdaAda, Aixia, Albert N. Sui, Ameesi, Asien Direct, Baby's Zone, Baynne, Beshinning, Bihood Direct, bluederst, coolpanda, Dalkeyie, dds5391, Fa Shaoge dara, Facaily, Forgun, GBell, GoHawk, Gozebra, GUINV, Gwill, hengtonghuan, Himpokejg, Holdsun, HOWWOH, HsgbvictS, JYS365, kasiduanmaiji, kateDy, Keahup, LeSharp, LiuKuii, millet16zjh, Move on, MqbY413rQ7bT, NACOLA Store, Naisidier, NAOAO, ningtonghaike, Onbio, potato001, ROLSS, RoseSummer, Seplegend, ShineFairy, SiFree, Softmusic, styleinside, UChic, Verhasa, Vertarz, wearesh, wintefei, Wrisky, Yan Control Biotechnology, yanbirdfx, YJZR, ZhenJun Yang, zhuhaishangxinmaoyiyouxiangongsi, ZYN and sJIPIIIk552 & Discount Store

Amazon

Amazon.com, a Seattle, Washington-based, online marketplace and e-commerce platform owned by Amazon.com, Inc., a Delaware corporation, that allows manufacturers and other third-party merchants, like Defendants, to advertise, distribute, offer for sale, sell and ship their retail products, which, upon information and belief, primarily originate 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

NAL

New Alchemy Limited, a company that provides intellectual property infringement research services, to investigate and research manufacturers, wholesalers, retailers and/or other merchants offering for sale and/or selling counterfeit products on online marketplace platforms

New York Address

105 Avenue B, Apt 4B, New York, New York 10009

Complaint

Plaintiff's Complaint filed on October 10, 2019

Application

Plaintiff's 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 October 10, 2019

Conway Dec.

Declaration of Laurie Conway in Support of Plaintiff's Application

Arnaiz Dec.

Declaration of Jessica Arnaiz in Support of Plaintiff's Application

Scully Dec.

Declaration of Brieanne Scully in Support of Plaintiff's Application

Slinky Marks

U.S. Trademark Registration Nos: 5, 286, 991 for “(Image Omitted)” for a variety of goods in Class 28;

2, 402, 881 for “(Image Omitted)” for a variety of goods in Class 28; and 1, 455, 493 for “SLINKY” for a variety of goods in Class 28

Slinky Products

A precompressed helical spring toy that can perform a number of tricks, which come in a variety of sizes colors and materials that can light up and make noise

Counterfeit Products

Products bearing or used in connection with the Slinky Marks, and/or products in packaging and/or containing labels and/or hang tags bearing the Slinky Marks, and/or bearing or used in connection with marks that are confusingly similar to the Slinky Marks and/or products that are identical or confusingly similar to the Slinky 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 Amazon, 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 banks, financial institutions, credit card companiesand payment processing agencies, such as Amazon.com, Inc., Amazon Payments, Inc. (“Amazon Pay”), PayPal Inc. (“PayPal”), Payoneer Inc. (“Payoneer”), 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 marketplace platforms, including, without limitation, those owned and operated, directly or indirectly, by Amazon, such as Amazon.com, 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 October 10, 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 Plaintiff's Application on October 10, 2019 which ordered Defendants to appear on October 24, 2019 at 2:00 p.m. to show cause why a preliminary injunction should not issue;

         WHEREAS, on October 16, 2019 and October 17, 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 on each and every Defendant, except Defendants Aixia and Forgun;

         WHEREAS, on October 24, 2019 at 2:00 p.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 Slinky Marks and/or marks that are confusingly similar to, identical to and constitute a counterfeiting and/or infringement of the Slinky Marks;
ii. directly or indirectly infringing in any manner any of Plaintiff's Slinky Marks;
iii. using any reproduction, counterfeit, copy or colorable imitation of Plaintiff's Slinky Marks to identify any goods or services not authorized by Plaintiff;
iv. using any of Plaintiff's Slinky Marks or any other marks that are confusingly similar to the Slinky Marks 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, marketing, promotion, distribution, display, offering for sale and/or sale of Counterfeit Products;
vii. effecting assignments or transfers, forming new entities or associations, or creating and/or utilizing any other platform, User Account, Merchant Storefront or any other means of importation, exportation, advertising, marketing, promotion, distribution, display, offering for sale and/or sale of Counterfeit Products for the purposes of ...

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