d.light design, Inc. et al v. Boxin Solar Co., Ltd. et al

Filing 41

ORDER by Judge Edward M. Chen denying without prejudice 19 , 20 Plaintiffs' Ex Parte Application for a Temporary Restraining Order (emclc1, COURT STAFF) (Filed on 1/2/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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D.LIGHT DESIGN, INC., et al.,

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Plaintiffs,

For the Northern District of California

United States District Court

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No. C-13-5988 EMC

v.
BOXIN SOLAR CO., LTD., et al.,

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ORDER DENYING WITHOUT
PREJUDICE PLAINTIFFS’ EX PARTE
APPLICATION FOR A TEMPORARY
RESTRAINING ORDER

Defendants.
(Docket No. 5988)

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___________________________________/
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Plaintiffs have filed suit against ten different China-based defendants (only some of which

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are allegedly related), asserting that they have, inter alia, infringed nine different design patents,

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infringed the trade dress of three different d.light products, infringed the d.light trademarked name,

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and engaged in unfair competition. Currently pending before the Court is the Plaintiffs’ ex parte

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application for a temporary restraining order (“TRO”), which was filed on December 30, 2013, i.e.,

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shortly before the Near Year holiday. Plaintiffs ask for broad relief, including but not limited to: an

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injunction barring Defendants from selling the allegedly infringing products and operating websites,

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an order instructing third-party registries/registrars to disable domain names, an order permitting

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Plaintiffs to take discovery immediately both from Defendants and from third-party financial

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institutions that receive or process payments or hold assets on Defendants’ behalf (e.g., PayPal,

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Western Union, Amazon, Visa, MasterCard), and an order restricting the transfer of Defendants’

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assets.

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Plaintiffs’ request for relief is hereby DENIED without prejudice.

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Plaintiffs have failed to give an adequate explanation as to why proceeding on an ex parte

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basis (i.e., without notice to Defendants) is appropriate. There are simply conclusory statements in

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the supporting declarations stating that, if notice is given, Defendants are likely to dissipate assets.

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See, e.g., Docket No. 32 (Mancini Decl. ¶ 5); Docket No. 28 (Tarbutton Decl. ¶ 29).

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Moreover, issues are raised in Plaintiffs’ motion that warrant a response from Defendants,

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including but not limited to: whether there is personal jurisdiction over Defendants, all of whom are

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based in China; whether joinder of all Defendants is appropriate in light of 35 U.S.C. § 299; whether

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Plaintiffs have made an adequate showing of irreparable injury; and whether preliminary relief is

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warranted in light of the apparent delay in seeking relief by Plaintiffs.
Accordingly, Plaintiffs’ ex parte application is denied. The denial is without prejudice.

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For the Northern District of California

United States District Court

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Plaintiffs are not barred from moving a second time for a TRO on an ex parte basis but they must

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make a stronger showing that it is necessary to proceed ex parte. Plaintiffs also are not barred from

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moving for a TRO upon giving appropriate notice to Defendants. Plaintiffs are forewarned that,

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depending on the circumstances, notice by e-mail may not be sufficient. For example, an e-mail to a

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defendant’s customer service account will likely be insufficient. In contrast, an e-mail to a

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defendant’s general counsel accompanied by telephone notice to the same will more likely be

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deemed sufficient notice.

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This order disposes of Docket Nos. 19 and 20.

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IT IS SO ORDERED.

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Dated: January 2, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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