Awareness Avenue Jewelry LLC et al v. The Partnerships and Unincorporated Associations identified on Schedule "A"

Filing 9

ORDER. "Plaintiff's Motion for Temporary Restraining Order, Including a Temporary Injunction, a Temporary Asset Restraint, and Expedited Discovery" (Doc. #2) is granted. See Order for details. Signed by Judge Thomas P. Barber on 1/18/2023. (EKB)

Case 8:23-cv-00002-TPB-AAS Document 9 Filed 01/18/23 Page 1 of 11 PageID 1298

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AWARENESS AVENUE JEWELRY
LLC and MIKKEL GULDBERG
HANSEN,
Plaintiffs,
v.

Case No. 8:23-cv-2-TPB-AAS

THE PARTNERSHIPS and
UNINCORPORATED
ASSOCIATIONS
IDENTIFIED ON SCHEDULE “A,”
Defendants.

/

ORDER GRANTING PLAINTIFFS’ MOTION
FOR TEMPORARY RESTRAINING ORDER
This matter is before the Court on “Plaintiff’s Motion for Temporary
Restraining Order, Including a Temporary Injunction, a Temporary Asset
Restraint, and Expedited Discovery,” filed on January 3, 2023. (Doc. 2). On the
basis of the verified complaint and the motion, the Court finds as follows:
Background 1
Plaintiffs Awareness Avenue Jewelry LLC (“Awareness Avenue”) and Mikkel
Guldberg Hansen (“Guldberg”) create, sell, and market jewelry, and Guldberg holds
the copyright on a group of photographs relating to the jewelry (the “Works”). (Doc.

The Court treats all allegations of the verified complaint as true for the purposes of this
Order.

1

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1 at ¶¶ 2, 4-5, 15-17). Defendants, unknown foreign individuals and entities
identified only by the “Seller Aliases” listed on Schedule A to the verified complaint,
infringe on Guldberg’s copyright by reproducing and displaying his Works without
his consent or permission in order to solicit sales on Amazon, Etsy, E-bay and other
interactive e-commerce stores. (Id. at ¶¶ 5, 6, 8, 18-19, 29-31; Docs. 2-2; 2-4).
Customers who have not received ordered products or have received counterfeit
products from these sources have contacted Awareness Avenue for resolution of
their issues, believing that the products were sold by Awareness Avenue. (Doc. 1 at
¶ 23). Plaintiffs assert that the likely result of Defendants’ conduct is to deprive
Plaintiffs of the benefits of soliciting sales based on the Works and harm to
Plaintiffs’ goodwill. (Id. at ¶¶ 20, 21, 24).
Plaintiffs filed this suit seeking damages and injunctive relief for copyright
infringement under 17 U.S.C. § 501 et seq., violations of the Florida Deceptive and
Unfair Trade Practices Act (“FDUTPA”), unjust enrichment, and unfair
competition. Plaintiffs simultaneously filed an ex parte motion for a temporary
restraining order and other relief.
Legal Standard
A district court is authorized to issue a temporary restraining order
without notice to the adverse party only in limited emergency
circumstances. See Fed. R. Civ. P. 65(b). Under Rule 65(b)(1), a federal court may
only issue a temporary restraining order without first giving notice to the enjoined
parties if the movant provides:
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(A) specific facts in an affidavit or a verified complaint clearly
show[ing] that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and
(B) the movant's attorney certifies in writing any efforts made to
give notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). If the movant establishes that it is justified in seeking ex
parte relief, it next bears the burden to establish that injunctive relief is appropriate
by showing: “(1) a substantial likelihood of success on the merits; (2) that
irreparable injury will be suffered if the relief is not granted; (3) that the threatened
injury outweighs the harm the relief would inflict on the non-movant; and (4) that
entry of the relief would serve the public interest.” Schiavo ex rel. Schindler v.
Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).
Analysis
This Court finds that issuing this Order without notice pursuant to Rule
65(b)(1) of the Federal Rules of Civil Procedure is appropriate because Plaintiffs
have presented specific facts in the verified complaint and attached exhibits
showing that immediate and irreparable injury, loss, or damage will result to the
Plaintiffs before the adverse parties can be heard in opposition. In the absence of
an ex parte order, Defendants will likely continue infringing on Guldberg’s
copyrighted Works. If notice is provided, Defendants would likely change
ownership, modify electronic data, change payment accounts, and move any
assets from accounts in financial institutions under this Court’s jurisdiction to
offshore accounts. See (Doc. 1 at ¶¶ 6-10, 32); see also Yizhou v. Individuals,
Partnerships, & Unincorporated Associat[ions] Identified on Schedule "A," No. 22Page 3 of 11

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23558-Civ-Scola, 2022 WL 17551254, at *3 (S.D. Fla. Dec. 9, 2022); CreeLED, Inc.
v. The Individuals, Partnerships and Unincorporated Associations Identified on
Schedule “A,” No. 8:22-cv-2739-MSS-TGW, slip op. at 8 (M.D Fla. Dec. 2, 2022);
Ain Jeem, Inc. v. The Individuals, Partnerships & Unincorporated Associations
Identified on Schedule “A,” No. 8:21-cv-1082-KKM-CPT, slip op. at 6 (M.D. Fla.
May 21, 2021). Accordingly, ex parte relief without notice is warranted in this
case.
Plaintiffs have also demonstrated the requirements for preliminary
injunctive relief. A copyright claim requires ownership of a valid copyright and
copying by the defendant of protected elements of the copyrighted works. E.g.,
Yizhou, 2022 WL 17551254, at *2. Plaintiffs have shown a likelihood of success on
this claim by evidence that Guldberg holds a copyright in the Works and that exact
copies of Guldberg’s Works appear on numerous commercial websites associated
with Defendants. (Docs. 2-2; 2-4).
Plaintiffs have demonstrated immediate and irreparable harm will occur
unless Defendants are enjoined. Defendants will continue to infringe and engage in
other improper conduct. Awareness Avenue’s current and prospective customers
will be misled, confused, and disappointed by the quality of products sold by
Defendants using the Works, thereby significantly and irreparably damaging
Plaintiffs’ valuable good will, which is difficult to measure or quantify. See Ferrero
v. Assoc. Materials, Inc., 923 F.2d 1441, 1449 (11th Cir. 1991) (loss of customers and
goodwill constitutes irreparable injury); Ferrellgas Partners, L.P., v. Barrow, 143 F.
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App’x 180, 190 (11th Cir. 2005) (irreparable injury includes loss of control of
reputation, trade, and goodwill).
Any potential harm to Defendants from restraining their use of infringing
images is outweighed by the potential harm to Plaintiffs if relief is not issued. The
public interest is also served by preliminary relief to protect Plaintiffs, protect the
public from being defrauded by Defendants’ infringing and misleading conduct, and
prevent Defendants from profiting from violations of federal and state law. See
TracFone Wireless, Inc. v. Hernandez, 196 F. Supp. 3d 1290, 1302 (S.D. Fla. 2016)
(holding the public interest is advanced by enforcing compliance with the laws of
the United States and the State of Florida); Yizhou, 2022 WL 17551254, at *3 (“The
public interest favors issuance of the preliminary injunction to protect the Plaintiff’s
copyright interests, to encourage respect for the law, and to protect the public from
being defrauded by the illegal sale of infringing goods”).
Given the number of potentially affected parties, and based on a review of
other decisions granting similar relief, the Court believes Plaintiffs should be
required to post a bond of $10,000 as security. See Fed. R. Civ. P. 65(c); see, e.g.,
CreeLED, slip op. at 13.
For the foregoing reasons, the Court grants Plaintiffs’ motion.
It is therefore
ORDERED, ADJUDGED, and DECREED:

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1. “Plaintiff’s Motion for Temporary Restraining Order, Including a
Temporary Injunction, a Temporary Asset Restraint, and Expedited
Discovery” (Doc. 2) is GRANTED.
2. Defendants, their officers, agents, servants, employees, attorneys, and all
persons acting for, with, by, through, under or in active concert with them
are temporarily enjoined and restrained from using or distributing
copyrighted Works of Plaintiff Guldberg.
3. Defendants, their officers, agents, servants, employees, attorneys and all
persons acting for, with, by, through, under or in active concert with them
are temporarily enjoined and restrained from hosting or otherwise
controlling any Internet content, server, or website that contains product
listings containing protected Works posted by or on behalf of Defendants
and to immediately take steps to ensure that the relevant information on
any website, blog, or social media service is no longer viewable or
accessible by persons using the Internet and prevent the alteration,
destruction, or erasure of any Internet content, servers, or websites that
contain this information.
4. Defendants will take steps to provide notification to each person who
purchased products from Defendants using protected Works of Plaintiff
Guldberg to solicit sales.
5. Upon Plaintiffs’ request, any third party with actual notice of this Order
who is providing services for any of the Defendants or in connection with
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any of Defendants’ Online Marketplaces, including, without limitation,
any online marketplace platforms such as eBay, Inc. (“eBay”), AliExpress,
Alibaba Group Holding Ltd. (“Alibaba”), Amazon.com, Inc. (“Amazon”) and
Etsy Inc. (“Etsy) (collectively, the “Third Party Providers”) shall, within
ten (10) business days after receipt of such notice, provide to Plaintiffs
expedited discovery, limited to copies of documents in such person’s or
entity’s possession or control, sufficient to determine:
a. the identities and locations of Defendants, their agents, servants,
employees, attorneys, and any persons acting in concert or
participation with them, including all known contact information
and all associated e-mail addresses;
b. the nature of Defendants’ operations and all associated sales,
methods of payment for services and financial information,
including, without limitation, identifying information associated
with the Online Marketplaces and Defendants’ financial accounts,
including Defendants’ sales and listing history related to their
respective Online Marketplaces; and
c. any financial accounts owned or controlled by Defendants,
including their agents, servants, employees, attorneys, and any
persons acting in concert or participation with them, including such
accounts residing with or under the control of any banks, savings
and loan associations, payment processors or other financial
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institutions, including, without limitation, PayPal Inc. (“PayPal”),
eBay, Alipay, Alibaba, Ant Financial Services Group (“Ant
Financial”), Amazon Pay, Wish.com or other merchant account
providers, payment providers, third party processors, and credit
card associations (e.g., MasterCard and VISA).
6. Upon Plaintiffs’ request, those with notice of this Order, including Third
Party Providers as defined in Paragraph 5, shall within ten (10) business
days after receipt of such notice, disable and cease displaying any
advertisements used by or associated with Defendants in connection with
the sale of goods using Plaintiff Guldberg’s Works.
7. Defendants shall not transfer or dispose of any money or other of
Defendants’ assets in any of Defendants’ financial accounts.
8. Any Third-Party Providers, including PayPal, eBay, Alipay, Alibaba, Ant
Financial, Wish.com, and Amazon Pay, shall, within ten (10) business
days of receipt of this Order:
a. locate all accounts and funds connected to Defendants’ Seller
Aliases and Online Marketplaces, including, but not limited to, any
financial accounts connected to the information listed in Schedule-A
hereto, the e-mail addresses identified in Schedule-A and any email
addresses provided for Defendants by third parties; and

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b. restrain and enjoin any such accounts or funds from transferring or
disposing of any money or other of Defendants’ assets until further
ordered by this Court.
9. Plaintiffs are authorized to issue expedited written discovery, pursuant to
Federal Rules of Civil Procedure 33, 34, and 36, related to:
a. the identities and locations of Defendants, their agents, servants,
employees, attorneys, and any persons acting in concert or
participation with them, including all known contact information,
including any and all associated e-mail addresses;
b. the nature of Defendants’ operations and all associated sales,
methods of payment for services and financial information,
including, without limitation, identifying information associated
with the Online Marketplaces and Defendants’ financial accounts,
including Defendants’ sales and listing history related to their
respective Online Marketplaces; and
c. any financial accounts owned or controlled by Defendants,
including their officers, agents, servants, employees, attorneys, and
any persons acting in active concert or participation with them,
including such accounts residing with or under the control of any
banks, savings and loan associations, payment processors or other
financial institutions, including, without limitation, PayPal, eBay,
Alipay, Alibaba, Ant Financial, Wish.com, and Amazon Pay, or
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other merchant account providers, payment providers, third party
processors, and credit card associations (e.g., MasterCard and
VISA).
10. Plaintiffs may provide notice of these proceedings to Defendants,
including notice of the preliminary injunction hearing, service of process
pursuant to Fed. R. Civ. P. 4(f)(3), and any future motions, by
electronically publishing a link to the complaint, this Order, and other
relevant documents on a website and by sending an e-mail to the e-mail
addresses identified on Schedule A to the complaint and any email
addresses provided for Defendants by third parties that includes a link to
said website. The Clerk of the Court is directed to issue a single original
summons in the name of “The Partnerships and all other Defendants
identified in the Complaint'' that shall apply to all Defendants. The
combination of providing notice via electronic publication and e-mail,
along with any notice that Defendants receive from payment processors,
shall constitute notice reasonably calculated under all circumstances to
apprise Defendants of the pendency of the action and afford them the
opportunity to present their objections.
11. Within seven (7) calendar days of entry of this Order, Plaintiffs shall
deposit with the Court ten thousand dollars ($10,000), either cash or
surety bond, as security, which amount was determined adequate for the

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payment of such damages as any person may be entitled to recover as a
result of a wrongful restraint hereunder.
12. Any Defendant or other person that is subject to this Order may appear
and move to dissolve or modify the Order as permitted by and in
compliance with the Federal Rules of Civil Procedure and Middle District
of Florida Local Rules.
13. This temporary restraining order without notice is entered at 2:15 p.m. on
this 18th day of January 2023 and shall remain in effect for fourteen (14)
days.
14. This matter will be scheduled for a preliminary injunction hearing by
separate notice.
DONE and ORDERED in Chambers, in Tampa, Florida this 18th day of
January, 2023.

TOM BARBER
UNITED STATES DISTRICT JUDGE

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