Cisco Technology, Inc. v. Certification Trendz LTD. et al
Filing
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ORDER granting Plaintiff's 7 Ex Parte Motion for (1) Temporary Restraining Order Freezing Defendants' Financial Accounts and Assets, And (2) Order to Show Cause. The parties are ordered to appear on 7/7/15 at 11:00 a.m. and show cause why the account(s) that is/are the subject of this Order should not remain frozen pending an evidentiary hearing or further order of the Court. The Court notes that Plaintiff has been directed to file proof of bond in the amount of $10,000.00. The Plaintiff shall promptly serve a copy of this Order upon the Defendants. See attached Order. Signed by Judge Vanessa L. Bryant on 6/26/15. (De Palma, C)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CISCO TECHNOLOGY, INC.,
Plaintiff,
:
:
:
v.
:
:
CERTIFICATION TRENDZ LTD. d/b/a
:
TestKing.com; FREETECH SERVICES LTD. :
d/b/a Pass4sure.com; and GLOBAL
:
SIMULATORS LTD. d/b/a/ “TestInside” and :
Test-Inside.com,
:
Defendants.
:
CIVIL ACTION NO.
3:15-CV-00965 (VLB)
June 26, 2015
ORDER GRANTING PLAINTIFF CISCO TECHNOLOGY’S EX PARTE APPLICATION
FOR: (1) TEMPORARY RESTRAINING ORDER FREEZING DEFENDANTS’
FINANCIAL ACCOUNTS AND ASSETS
AND (2) ORDER TO SHOW CAUSE [Dkt. #7]
THIS MATTER comes before the Court upon Plaintiff Cisco Technology’s
(“Cisco” or “Plaintiff”) Ex Parte Application for (1) a Temporary Restraining Order
freezing certain accounts and assets owned or controlled by CERTIFICATION
TRENDZ LTD. d/b/a TestKing.com; FREETECH SERVICES LTD. d/b/a
Pass4sure.com; and GLOBAL SIMULATORS LTD. d/b/a/ “TestInside” and TestInside.com (collectively “Defendants”) within the United States or otherwise in
United States commerce, and (2) an Order requiring Defendants to appear and
show cause why those accounts and assets should not remain frozen pending an
evidentiary hearing or further action by the Court to determine whether the asset
freeze shall remain in effect pending the disposition of this action.
Temporary restraining orders are authorized by Federal Rule of Civil
Procedure 65(b) and are governed by the same standard applicable to a
preliminary injunction. A plaintiff is entitled to a preliminary injunction when that
party can demonstrate: “(1) irreparable harm in the absence of the injunction, and
(2) either (a) likelihood of success on the merits or (b) sufficiently serious
questions going to the merits to make them fair ground for litigation and a
balance of hardships tipping decidedly in the movant‟s favor.” Random House,
Inc. v. Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir. 2002).
The Second Circuit has noted that “generally when a copyright plaintiff
makes out a prima facie showing of infringement, irreparable harm may be
presumed.” Merkos L’Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312
F.3d 94, 96 (2d Cir. 2002) (reviewing a district court‟s grant of preliminary
injunction) (citations omitted). “To prevail on a claim of copyright infringement,
the plaintiff must demonstrate both (1) ownership of a valid copyright and (2)
infringement of the copyright by the defendant.” Yurman Design, Inc. v. PAJ, Inc.,
262 F.3d 101, 108–109 (2d Cir. 2001). Similarly, “[i]n trademark disputes, „a
showing of likelihood of confusion establishes both a likelihood of success on
the merits and irreparable harm.‟” Malletier v. Burlington Coat Factory Warehouse
Corp., 426 F.3d 532, 537 (2d Cir. 2005).
Additionally, the Copyright Act provides a court authority to “grant
temporary and final injunctions on such terms as it may deem reasonable to
prevent or restrain infringement of copyright.” 17 U.S.C. § 502. The Lanham Act
in turn provides wider authority with regard to the seizure of assets:
The Lanham Act authorizes the seizure of counterfeit products, but
does not specifically authorize the restraint of assets of a defendant
in an action arising under the Act. However, because the Lanham
Act does give courts the authority to order equitable relief in the
form of an accounting of the seller‟s profits, this Court has the
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authority to order injunctive relief freezing assets in order to ensure
availability of final equitable relief.
Motorola, Inc. v. Abeckaser, 2009 WL 1362833 at *3 (E.D.N.Y, May 14, 2009)
(citations omitted).
On the basis of the sum and substance of the sworn allegations of the
Defendants‟ piracy operations, their refusal to cease and desist, their false claims
of compliance in response to repeated demands by Cisco, and their employment
of “WHOIS Privacy Protection Services, Inc.” to frustrate attempts at detection
and avoid compliance with trademark and copyright laws, the Court finds that
there is a likelihood that the Defendants will frustrate final equitable relief by
secreting or transferring the funds and assets that are the subject of this
Application for a Temporary Restraining Order beyond the jurisdiction of this
Court unless restrained by this Court pending a hearing on this matter.
Based on its review of the materials submitted, and on the foregoing
analysis, the Court GRANTS Cisco‟s Ex Parte Motion [Dkt. # 7] as follows:
(1) The Court GRANTS Cisco‟s Ex Parte Application for a Temporary
Restraining Order freezing Defendants‟ financial accounts––including but not
necessarily limited to any PayPoint, PayPal, Moneybookers/Skrill,
Ogone/Ingenico Payment Services, and/or HSBC accounts located in the United
States or in or affecting United States commerce, as well as any and all linked,
related or associated accounts (individually “Account” and collectively
“Accounts”)––upon finding that Plaintiff Cisco has carried its burden of showing
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that the injunction is necessary to prevent irreparable harm, and has further
demonstrated likelihood of success on the merits, or, at the very least,
sufficiently serious questions going to the merits of the claim, and that the
balance of the hardships tips decidedly in its favor.
(2) The Temporary Restraining Order is granted pursuant to Federal Rule of
Civil Procedure 65; the Court‟s general equitable power; 15 U.S.C. § 1116(a); 15
U.S.C. § 1117(a); 17 U.S.C. § 502; and 17 U.S.C. § 504(b).
(3) The Court hereby RESTRAINS AND ENJOINS Defendants, and any
persons or entities acting on their behalf, including but not limited to the financial
institutions or third parties identified below, from transferring, disposing of,
encumbering or secreting any of the following accounts/assets:
(a) Any Account(s) in the name of, linked to, or otherwise associated
with any of the Defendants.
(b) Any Account(s) in the names of:
1. Certification Trendz Ltd.; TestKing.com; TestKing
2. Freetech Services, Ltd.; Free Tech Services, Ltd.;
Pass4sure.com; Pass4sure
3. Global Simulators Ltd.; Test-Inside.com; Test-Inside;
TestInside
or in the names of, linked to, or otherwise associated with any of the
following website/domain names:
4. TestKing.com
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5. Pass4sure.com
6. Test-Inside.com
or in the names of, linked to, or otherwise associated with any of the
following email addresses:
7. support@testking.com
8. careers@testking.com
9. manager@testking.com
10. webmaster@testking.com
11. sales@testking.com
12. billing@testking.com
13. bounce@testking.com
14. any other emails ending in @testking.com
15. certificationtrendz@merchant.metacharge.com
16. manager@realtests.com
17. sshafiq.ahmadd@gmail.com
18. support@pass4sure.com
19. manager@pass4sure.com
20. billing@pass4sure.com
21. sales@pass4sure.com
22. Helen@pass4sure.com
23. info@pass4sure.com
24. complaint@pass4sure.com
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25. bounce@pass4sure.com
26. any other emails ending in @pass4sure.com
27. sales@test-inside.com
28. billing@test-inside.com
29. support@test-inside.com
30. info@test-inside.com
31. complaint@test-inside.com
32. any other email addresses ending in @test-inside.com
33. insidete@server.passguide.com
34. support@real-exams.com
(c) Any Account(s) with or held by financial institutions located
within the United States or which otherwise utilize or affect United States
commerce that are owned or controlled by any or all of the Defendants or which
receive or distribute funds from or on behalf of TestKing.com, Pass4sure.com,
and/or Test-Inside.com.
(d) Any bank account(s) or other types of accounts linked to,
associated with, or receiving deposits from any of the account(s) identified in
Paragraph 3(a)–(c) of this Order.
(4) Cisco is entitled to request and obtain Defendants’ account and
identifying information on an expedited basis. Thus, as soon as practical upon
service of this Order, the aforementioned financial institutions are directed to
identify to Cisco––by bank name and location, account holder, signatories, and
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account number––any account(s) that is/are linked to, associated with, or
receiving deposits from any of the PayPal, Moneybookers, and/or other
Account(s) identified in Paragraph 3 of this Order.
(5) Cisco is entitled to receive information and documents on an expedited
basis. Thus, within three (3) business days upon service of this Order, each
financial institution shall provide account information in sufficient detail to
identify the (a) account holder, (b) address or contact information, and (c) current
balance for each account subject to this Order. The required information shall be
delivered to counsel for Cisco. As soon as practicable after Defendants have
appeared in this action, counsel for Cisco is directed to serve Defendants with
copies of all account information received pursuant to this Order.
(6) This Temporary Restraining Order shall take effect immediately and
shall remain in effect pending the Show Cause Hearing in Paragraph 8 or further
order of this Court. Defendants may apply to the Court for dissolution or
modification of this Temporary Restraining Order on two court days‟ notice to
Cisco.
(7) Cisco is directed to file proof of bond in the amount of $10,000.00 within
three court days of this Order. The bond shall serve as security for all claims
with respect to this Temporary Restraining Order and any additional injunctive
relief ordered by the Court in this action.
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(8) Defendants are ordered to appear on July 7, 2015, at 11:00 a.m., and
show cause why the account(s) that is/are the subject of this Order should not
remain frozen pending an evidentiary hearing or further order of the Court.
(9) Defendants shall serve and file any papers in opposition to the
continued freeze not less than three court days before the Show Cause Hearing.
Signed this 26th day of June, 2015 at 1:05 PM.
___________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
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