Abercrombie & Fitch Trading Co. v. 007fashion.com et al
Filing
10
ORDER granting 5 Ex Parte Application for Temporary Restraining Order; setting hearing on 5 Motion for Preliminary Injunction. Motion Hearing set for 2/21/2013 at 9:00 AM in Fort Lauderdale Division before Judge James I. Cohn. Please see Order for filing deadlines and other details. Signed by Judge James I. Cohn on 2/7/2013. (sry)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-60272-CIV-COHN/SELTZER
ABERCROMBIE & FITCH
TRADING CO.,
Plaintiff,
v.
007FASHION.COM, et aI.,
Defendants.
_____________________1
ORDER GRANTING EX PARTE APPLICATION FOR ENTRY OF
TEMPORARY RESTRAINING ORDER AND SETTING HEARING
ON MOTION FOR PRELIMINARY INJUNCTION
THIS CAUSE is before the Court on Plaintiff's Ex Parte Application for Entry of
Temporary Restraining Order, Preliminary Injunction, and Order Restraining Transfer of
Assets Tied to the Counterfeiting Operation [DE 5] ("Application for Temporary
Restraining Order"). The Court has carefully considered the Application for Temporary
Restraining Order and is otherwise advised in the premises.
Plaintiff Abercrombie & Fitch Trading Co. ("Plaintiff') moves ex parte, pursuant to
15 U.S.C. § 1116 and Fed. R. Civ. P. 65, for entry of a temporary restraining order and
an order restraining the financial accounts used by Defendants,1 and upon expiration of
the temporary restraining order, a preliminary injunction against Defendants, for alleged
violations of the Lanham Act, 15 U.S.C. §§ 1114, 1125(a).
1 Defendants are the Partnerships and Unincorporated Associations identified on
Schedule "A" hereto.
I.
1.
Factual Background 2
Plaintiff is the registered owner of the following trademarks, which are
valid and registered on the Principal Register of the United States Patent and
Trademark Office (the "Abercrombie Marks"):
Trademark
ABERCROMBIE &
FITCH
abercrombie
Registration
Number
0,951,410
2,305,464
Registration Date
Class I Goods
January 23, 1973
IC 025 - men's and women's
clothing and footwearnamely pants, shirts, skirts,
jackets, coats, gloves,
mittens, hats, underwear,
shoes, belts, caps.
January 4, 2000
IC 025 - Clothing, namely,
coats, jackets, knit shirts,
woven shirts, t-shirts, shirts,
underwear, pants, jeans,
hats and shoes.
IC 035 - Retail clothing store
services
IC 003 - personal care
products, namely, perfume.
IC 014 - jewelry, namely,
necklaces and bracelets.
ABERCROMBIE &
FITCH
2,500,146
October 23, 2001
IC 018 - handbags, tote bags
and travel bags.
IC 025 - clothing, namely, tshirts, sweatshirts,
sweatpants, jeans, sandals,
visors, tank tops, swimwear,
bikinis and camisoles.
2 The Court bases this Order on the following facts from Plaintiff's Complaint,
Application for Temporary Restraining Order, and supporting evidentiary submissions.
2
Trademark
Registration
Number
Registration Date
Class I Goods
Ie 025 - clothing,
A&F
2,530,664
~
3,212,644
HOLLISTER
3,310,650
namely,
hats, caps, shirts, t-shirts,
tank tops, knit tops, woven
tops, halter tops, sweatshirts,
sweatpants, underwear,
boxer shorts, pants, short
pants, jeans, skirts, footwear,
sweaters, vests, coats,
January 15, 2002
jackets, scarves.
February 27, 2007
October 16, 2007
3
Ie 035 - retail personal care
product and clothing store
services and mail order
catalog services featuring
personal care products and
clothing.
Ie 025 - clothing, namely,
polo shirts, sweaters, t-shirts,
shirts, knit tops, woven tops,
sweatshirts, sweatpants,
pants, shorts, caps, hats,
scarves, jackets, coats,
sandals, flip flops, belts, tank
tops, underwear, boxer
shorts, swim suits, pajamas,
sleepwear.
Ie 035 - retail store services,
and on-line retail store
services featuring clothing,
footwear, fashion
accessories, fragrances and
jewelry.
Ie 025 - belts; blouses; boxer
shorts; camisoles; caps;
coats; footwear; halter tops;
hats; jackets; jeans; knit
shirts; loungewear; pants;
sandals; scarves; shirts;
shoes; shorts; skirts; sweat
pants; sweat shirts; sweat
shorts; sweaters; swim wear;
t-shirts; tank tops;
underpants; undershirts;
underwear.
Reg istration
Number
Trademark
ABERCROMBIE
HCO
3,484,799
3,529,071
Registration Date
August 12,2008
November 4,2008
Class I Goods
IC 025 - coats; jackets; knit
shirts; shirts; t-shirts;
underwear; pants; jeans;
hats; shoes.
IC 025 - clothing, namely,
boxer shorts, caps, coats,
hats, jackets, knit shirts, knit
tops, loungewear, pants,
shirts, slacks, sweat pants,
sweat shirts, t-shirts and
underwear.
I
I
I
IC 035 - retail store services
and on-line retail services
featuring clothing.
See Declaration of Brandon Scott in Support of Plaintiff's Application for Temporary
Restraining Order ["Scott Decl."] 11 4; see also United States Trademark Registrations of
the Abercrombie Marks at issue attached as Composite Exhibit A to the Declaration of
Brandon Scott in Support of Plaintiff's Application for Temporary Restraining Order.
The Abercrombie Marks are used in connection with the manufacture and distribution
of, among other things, clothing, namely t-shirts, polo shirts, sweat shirts, sweaters,
sweat pants, underwear, shorts, jeans, vests, jackets, tote bags, and caps.
See Scott Decl.
2.
11 4.
Defendants, through the Internet websites operating under the domain
names identified on Schedule "A" hereto (the "Subject Domain Names"), have
advertised, promoted, offered for sale, and/or sold, at least, clothing, namely t-shirts,
polo shirts, sweat shirts, sweaters, sweat pants, underwear, shorts, jeans, vests,
jackets, tote bags, and caps bearing what Plaintiff has determined to be counterfeits,
infringements, reproductions, and/or colorable imitations of the Abercrombie Marks.
4
r
I
See Scott Decl.
,-r,-r 9-15; Declaration of Stephen M. Gaffigan in Support of Plaintiff's
Application for Temporary Restraining Order ["Gaffigan Decl."]
,-r 3 and Composite
Exhibit A to the Gaffigan Dec!.; see also Composite Exhibit B to the Scott Decl.
3.
Although each Defendant may not copy and infringe each Abercrombie
Mark for each category of goods protected, Plaintiff has submitted sufficient evidence
showing each Defendant has infringed, at least, one or more of the Abercrombie Marks.
See Scott Dec!.
,-r,-r 11-15. Defendants are not now, nor have they ever been,
authorized or licensed to use, reproduce, or make counterfeits, reproductions, and/or
colorable imitations of the Abercrombie Marks. See id.
4.
,-r 9.
Plaintiff retained Investigative Consultants, AED Investigations, Inc., and
Aries Claims Services, aI/licensed private investigative firms, to investigate the sale of
counterfeit versions of Plaintiff's products by Defendants. See Scott Dec!.
,-r 10;
Declaration of Eric Rosaler in Support of Plaintiff's Application for Temporary
Restraining Order ["Rosaler Dec!."] ,-r 3; Declaration of Kathleen Burns in Support of
Plaintiff's Application for Temporary Restraining Order ["Burns Dec!."]
,-r 3; Declaration of
Sean Smith in Support of Plaintiff's Application for Temporary Restraining Order ["Smith
Decl."]
,-r 3; Gaffigan Dec!. ,-r 4.
5.
Eric Rosaler, an officer of AED Investigations, Inc., accessed the Internet
websites operating under the Subject Domain Names identified in the table below, and
went through the purchasing process for various products, all of which bore counterfeits
of at least one of the Abercrombie Marks at issue in this action. 3
Rosaler was instructed to not finalize his purchases via the Internet websites so as to
avoid contributing additional funds to Defendants' coffers. See Gaffigan Dec!. ,-r 4.
3
5
See Rosaler Dec1.1l1l6-16 and Exhibits A through N thereto. Following submission of
his orders, Rosaler received information for finalizing payment for each of the items
ordered via PayPal, Inc., ("PayPal") and/or bank transfer to Defendants' respective
PayPal and/or bank accounts, as follows:
Subject Domain
Name
Payment
Method
007fashion.com
Bank Transfer
brand-cap.com
shoes5a.com
Bank Transfer
buykicksonline.com
PayPal
chromeclothes.net
chromeclothes.com
Bank Transfer
clothes-supply. com
Bank Transfer
eshopping inchina. net
wholesalecube. com
Bank Transfer
hopev.com
Bank Transfer
jumpmanlocker. us
Bank Transfer
Account4
Account Owner: Linkun Wang;
Industrial and Commercial Bank of China,
Shenzhen Branch;
SWIFT Code ICBKCNBJSZN;
Bank Account Number ****************9900
Account Owner: Lai Hong Liang;
Bank of China, Putian Branch;
SWIFT Code BKCHCNBJ73A;
Bank Account Number ***************0436
xvvvrztfi2163.com
Account Owner: Mengjun Cheng;
China Construction Bank, Guangdong
Branch;
SWIFT Code PCBCCNBJGDX;
Bank Account Number **** **** **** ***8 885
Account Owner: Hualiang Lu;
Bank of China;
SWIFT Code BKCHCNBJ400; Bank Account
Number ***************3521
Account Owner: Lin Zikai;
Bank of China, Xiamen Branch;
SWIFT Code KCHCNBJ73A;
Bank Account Number *******-****-***020-8
Account Owner: GuoCong Liu;
Bank of China;
SWIFT Code BKCHCNBJ73C;
Bank Account Number ********4558
Account Owner: Huang Yanfei;
Bank of China;
SWIFT Code BKCHCNBJ73C;
Bank Account Number ********7337
The full account numbers of all financial-institution accounts identified herein have
been redacted to avoid disclosure of private financial information, in compliance with
Fed. R. Civ. P. 5.2(a)(4).
4
6
Subject Domain
Name
Payment
Method
Bank Transfer
nodus79.com
Bank Transfer
PayPal
onlineunite.com
outletmallshop.com
Bank Transfer
Bank Transfer
PayPal
shopane.com
Bank Transfer
Account4
Account Owner: Su Zhaowei;
Bank of China Guangzhou Zhan Xi Road
Sub-Branch;
SWIFT Code BKCHCNBJ400;
Bank Account Number *******-****-***066-7
Account Owner: Chen Shuyi;
Agricultural Bank of China;
SWIFT Code ABOCCNBJ190;
Bank Account Number ****** *********4717
messieolCl>-126. com
Account Owner: Shiwen Zhu;
China Merchants Bank, Guangzhou
Subsidiary Bank;
SWIFT Code CMBCCNBS;
Bank Account Number **** **** **** 1023
Account Owner: Xiufen Yang;
China Merchants Bank;
SWIFT Code CMBCCNBS;
Bank Account Number ************3869
outletkinJtdom@J63.com
Account Owner: Wang Chaoying;
Bank of China;
SWIFT Code BKCHCNBJ45A;
Bank Account Number ***************2262
See Rosaler Dec1.1l1l6-16 and Exhibits A through N thereto.
6.
Additionally, Kathleen Burns, a partner at Aries Claims Services, accessed
the Internet websites operating under the Subject Domain Names listed below and went
through the purchasing process for various products, all of which bore counterfeits of at
least one of the Abercrombie Marks at issue in this action. 5 See Burns Decl.
W 4-6 and
Exs. A through C thereto. Following the submission of her orders, Burns likewise
received information for finalizing payment for each of the Abercrombie-branded items
Burns intentionally did not finalize her purchases from the Internet websites operating
under the Subject Domain Names so as to avoid contributing funds to Defendants'
coffers.
5
7
ordered via PayPal and/or bank transfer to Defendants' respective PayPal and/or bank
accounts, as follows:
Subject Domain
Name
Payment
Method
brand-pick. com
Bank Transfer
canparka.com
Bank Transfer
clisshoes.com
PayPal
See Burns Decl.
7.
Account
Account Owner: Lin Haixing;
Bank of China, Putian Branch;
SWIFT Code BKCHCNBJ73C;
Bank Account Number ***************9108
Account Owner: Xiaoning Bai;
Bank of China;
SWIFT Code BKCHCNBJ42G;
Bank Account Number ***************8674
auranteehui@hotmail.com
,m 4-6 and Exs. A through C thereto.
Moreover, Sean Smith, an employee of Investigative Consultants, placed
an order for the purchase of (i) a t-shirt bearing at least one of the Abercrombie Marks
at issue in this action through the Internet website operating under the Subject Domain
Name chromeclothes.net; and (ii) a vest bearing at least one of the Abercrombie Marks
at issue in this action through the Internet website operating under the Subject Domain
Name outletmallshop.com, and he requested that each product be shipped to his
address in the Southern District of Florida. See Smith Decl.
,m 4-5.
Following the
submission of his orders, Smith exchanged e-mail correspondence with both
Defendants, receiving information electronically to effect payment for the Abercrombie
branded products he ordered via the chromeclothes.net and outletmallshop.com
websites.
lil
Smith submitted payment to finalize the purchase of the Abercrombie
branded products he ordered, and subsequently sent detailed web page listings and
web captures to Abercrombie's representative for review and analysis.
8
lil
8.
Thereafter, Plaintiff's representative reviewed and visually inspected the
web page listings, including images, for the items bearing Plaintiff's trademarks
purchased by Smith and determined the items to be non-genuine versions of Plaintiff's
products. See Scott Decl. ~ 12. Additionally, Plaintiff's representative reviewed and
visually inspected the items bearing Plaintiff's trademarks offered for sale through the
Internet websites operating under the Subject Domain Names and determined the
products to be unauthorized, non-genuine versions of Plaintiff's products. See id.
~~
13-15.
II.
LEGAL STANDARD
To obtain a temporary restraining order, a party must demonstrate U(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 reI. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005)
(per curiam); see also Levi Strauss & Co. v. Sunrise Int'I Trading Inc., 51 F.3d 982, 985
(11th Cir. 1995) (applying this test to a preliminary injunction in a Lanham Act case).
Additionally, a court may issue a temporary restraining order without notice to the
adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage
will result to the movant before the adverse party can be
heard in opposition; and
(8) the movant's attorney certifies in writing any efforts
made to give notice and the reasons why it should not be
required.
9
Fed. R. Civ. P. 65(b)(1). Ex parte temporary restraining orders "should be restricted to
serving their underlying purpose of preserving the status quo and preventing irreparable
harm just so long as is necessary to hold a hearing, and no longer." Granny Goose
Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameida Cnty.,
415 U.S. 423,439 (1974).
III.
ANALYSIS
The declarations Plaintiff has submitted in support of its Application for
Temporary Restraining Order support the following conclusions of law:
A.
Plaintiff has a very strong probability of proving at trial that consumers are
likely to be confused by Defendants' advertisement, promotion, sale, offer for sale,
and/or distribution of clothing, namely t-shirts, polo shirts, sweat shirts, sweaters, sweat
pants, underwear, shorts, jeans, vests, jackets, tote bags, and caps bearing
counterfeits, reproductions, and/or colorable imitations of the Abercrombie Marks, and
that the products Defendants are selling and promoting are copies of Plaintiff's products
that bear copies of the Abercrombie Marks on clothing, namely t-shirts, polo shirts,
sweat shirts, sweaters, sweat pants, underwear, shorts, jeans, vests, jackets, tote bags,
and caps.
B.
Because of the infringement of the Abercrombie Marks, Plaintiff is likely to
suffer immediate and irreparable injury if a temporary restraining order is not granted. It
clearly appears from the following specific facts, as set forth in Plaintiff's Complaint,
Application for Temporary Restraining Order, and accompanying declarations on file,
that immediate and irreparable loss, damage, and injury will result to Plaintiff and to
10
consumers before Defendants can be heard in opposition unless Plaintiff's request for
ex parte relief is granted:
1.
Defendants own or control Internet website businesses which
advertise, promote, offer for sale, and sell, at least clothing, namely t-shirts, polo shirts,
sweat shirts, sweaters, sweat pants, underwear, shorts, jeans, vests, jackets, tote bags,
and caps bearing counterfeit and infringing trademarks in violation of Plaintiff's rights;
2.
There is good cause to believe that more counterfeit and infringing
products bearing Plaintiff's trademarks will appear in the marketplace; that consumers
are likely to be misled, confused, and disappointed by the quality of these products; and
that Plaintiff may suffer loss of sales for its genuine products; and
3.
There is good cause to believe that if Plaintiff proceeds with notice
to Defendants on this Application for Temporary Restraining Order, Defendants can
easily and quickly transfer the registrations for many of the Subject Domain Names, or
modify registration data and content, change hosts, and redirect traffic to other
websites, thereby thwarting Plaintiff's ability to obtain meaningful relief.
C.
The balance of potential harm to Defendants in restraining their trade in
counterfeit and infringing branded goods if a temporary restraining order is issued is far
outweighed by the potential harm to Plaintiff, its reputation, and goodwill as a
manufacturer and distributor of quality products, if such relief is not issued.
D.
The public interest favors issuance of the temporary restraining order in
order to protect Plaintiff's trademark interests and protect the public from being
defrauded by the palming off of counterfeit goods as Plaintiff's genuine goods.
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E.
Under 15 U.S.C. § 1117(a), Plaintiff may be entitled to recover, as an
equitable remedy, the illegal profits gained through Defendants' distribution and sales of
clothing, namely t-shirts, polo shirts, sweat shirts, sweaters, sweat pants, underwear,
shorts, jeans, vests, jackets, tote bags, caps, and socks bearing counterfeits and
infringements of the Abercrombie Marks. See Reebok Inn Ltd. v. Marnatech Enters.!
Inc., 970 F.2d 552, 559 (9th Cir. 1992) ("An accounting of profits under § 1117(a) is not
synonymous with an award of monetary damages: '[a]n accounting for profits ... is an
equitable remedy subject to the principles of equity.'" (quoting Fuller Brush Prods. Co. v.
Fuller Brush Co., 299 F.2d 772, 777 (7th Cir. 1962))).
F.
Requesting equitable relief "invokes the district court's inherent equitable
powers to order preliminary relief, including an asset freeze, in order to assure the
availability of permanent relief." Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d
982, 987 (11th Cir. 1995) (citing Fed. Trade Comm'n v. United States Oil & Gas Corp.,
748 F.2d 1431, 1433-34 (11th Cir. 1984)).
G.
In light of the inherently deceptive nature of the counterfeiting business,
and Defendants' blatant violation of the federal trademark laws, Plaintiff has good
reason to believe Defendants will hide or transfer their ill-gotten assets beyond the
jurisdiction of this Court unless those assets are restrained.
IV.
CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Plaintiff's Application for Temporary
Restraining Order [DE 5] is hereby GRANTED as follows:
I
,
12
I
(1)
Each Defendant, its officers, directors, employees, agents, subsidiaries,
distributors, and all persons in active concert or participation with any Defendant having
notice of this Order are hereby temporarily restrained:
a. From manufacturing, importing, advertising, promoting, offering to
sell, selling, distributing, or transferring any products bearing the
Abercrombie Marks, or any confusingly similar trademarks, other
than those actually manufactured or distributed by Plaintiff; and
b. From secreting, concealing, destroying, selling off, transferring, or
otherwise disposing of: (i) any products, not manufactured or
distributed by Plaintiff, bearing the Abercrombie Marks, or any
confusingly similar trademarks; or (ii) any evidence relating to the
manufacture, importation, sale, offer for sale, distribution, or
transfer of any products bearing the Abercrombie Marks, or any
confusingly similar trademarks.
(2)
Each Defendant, its officers, directors, employees, agents, subsidiaries,
distributors, and all persons in active concert or participation with any Defendant having
notice of this Order shall immediately discontinue the use of the Abercrombie Marks or
any confusingly similar trademarks, on or in connection with all Internet websites owned
and operated, or controlled by them including the Internet websites operating under the
Subject Domain Names;
(3)
Each Defendant, its officers, directors, employees, agents, subsidiaries,
distributors, and all persons in active concert or participation with any Defendant having
notice of this Order shall immediately discontinue the use of the Abercrombie Marks, or
any confusingly similar trademarks within domain name extensions, metatags, or other
markers within website source code, from use on any webpage (including as the title of
any web page), from any advertising links to other websites, from search engines'
databases or cache memory, and any other form of use of such terms which is visible to
a computer user or serves to direct computer searches to websites registered by,
13
owned, or operated by each Defendant, including the Internet websites operating under
the Subject Domain Names;
(4)
Each Defendant shall not transfer ownership of the Subject Domain
Names during the pendency of this action, or until further Order of the Court;
(5)
The domain name Registrars for the Subject Domain Names are directed
to transfer to Plaintiff's counsel, for deposit with this Court, domain name certificates for
the Subject Domain Names;
(6)
The domain name Registrars for the Subject Domain Names shall
immediately assist in changing the Registrar of record for the Subject Domain Names,
excepting any such domain names which such Registrars have been notified in writing
by Plaintiff have been or will be dismissed from this action, to a holding account with a
Registrar of Plaintiff's choosing (the "New Registrar"). To the extent the Registrars do
not assist in changing the Registrars of Record for the domains under their respective
control within one (1) business day of receipt of this Order, the top-level domain ("TLD")
Registries (or their administrators) for the Subject Domain Names, within five (5)
business days of receipt of this Order, shall change or assist in changing the Registrar
of record for the Subject Domain Names, excepting any such domain names which
such Registries have been notified in writing by Plaintiff have been or will be dismissed
from this action, to a holding account with the New Registrar. As a matter of law, this
Order shall no longer apply to any Defendant or associated domain name dismissed
from this action. Upon the change of the Registrar of record for the Subject Domain
Names, the New Registrar will maintain access to the Subject Domain Names in trust
for the Court during the pendency of this action. Additionally, the New Registrar shall
14
immediately institute a temporary 302 domain name redirection which will automatically
redirect any visitor to the Subject Domain Names to the following Uniform Resource
Locator ("URL"), http://servingnotice.com/afpp3/index.html, whereon copies of the
Complaint and all other documents on file in this action are displayed. Alternatively, the
New Registrar may update the Domain Name System ("DNS") data it maintains for the
Subject Domain Names, which link the domain names to the IP addresses where their
associated websites are hosted, to NS1.MEDIATEMPLE.NET and
NS2.MEDIATEMPLE.NET, which will cause the domain names to resolve to the website
where copies of the Complaint, Temporary Restraining Order, and all other documents
on file in this action are displayed. After the New Registrar has effected this change,
the Subject Domain Names shall be placed on Lock status, preventing the modification
or deletion of the domains by the New Registrar or Defendants;
(7)
Upon Plaintiffs request, the privacy protection service for any of the
Subject Domain Names for which the Registrant uses such privacy protection service to
conceal the Registrant's identity and contact information is ordered to disclose to
Plaintiff the true identities and contact information of those Registrants;
(8)
Plaintiff may enter the Subject Domain Names into Google's Webmaster
Tools and cancel any redirection of the domains that have been entered there by
Defendants which redirect traffic to the counterfeit operations to a new domain name or
website and thereby evade the provisions of this Order;
(9)
Each Defendant shall preserve copies of all computer files relating to the
use of any of the Subject Domain Names and shall take all steps necessary to retrieve
15
computer files relating to the use of the Subject Domain Names that may have been
deleted before the entry of this Order;
(10)
Upon receipt of notice of this Order, PayPal, Inc., ("PayPal,,)6 and its
related companies and affiliates shall immediately freeze all funds, as opposed to
ongoing account activity, in or which hereafter are transmitted into the PayPal accounts
related to the PayPal account recipients, xyyyrz@163.com, pjessiep@126.com,
outletkingdom@163.com, and guranteehui@hotmail.com, as well as all funds in or
which are transmitted into (i) any other related accounts of the same customer(s),
(ii) any other accounts which transfer funds into the same financial institution
account(s), and/or any of the other PayPal accounts subject to this Order; (iii) any other
PayPal accounts tied to or used by any of the Subject Domain Names identified on
Schedule "A" hereto; and (iv) any other PayPal accounts associated with or related to
the domain names and/or e-mail addresses identified on Schedule "8" hereto;
(11)
Upon receipt of notice of this Order, PayPal and its related companies and
affiliates shall immediately freeze all funds, as opposed to ongoing account activity, in or
which hereafter are transmitted into the PayPal accounts linked to, associated with, or
that transmit funds into Defendants' identified bank accounts,? including but not limited
to:
6 PayPal is licensed to do business in the State of Florida by the Florida Office of the
Controller and is therefore subject to personal jurisdiction in this Court. See Gaffigan
Decl. ~ 9 and Exhibit C attached thereto.
The full account numbers have been redacted to avoid disclosure of private financial
information, in compliance with Fed. R. Civ. P. 5.2(a)(4); however, the full account
numbers are identified on Plaintiff's Notice of Filing Reference List, to be filed under
seal, which shall be disclosed to PayPal to effectuate the relief ordered herein.
7
16
Account
Account Owner: Linkun Wang;
Industrial and Commercial Bank of China, Shenzhen Branch;
SWIFT Code ICBKCNBJSZN;
Bank Account Number ****************9900
Account Owner: Lai Hong Liang;
Bank of China, Putian Branch;
SWIFT Code BKCHCNBJ73A;
Bank Account Number ***************0436
Account Owner: Mengjun Cheng;
China Construction Bank, Guangdong Branch;
SWIFT Code PCBCCNBJGDX;
Bank Account Number **** **** **** ***8 885
Account Owner: Hualiang Lu;
Bank of China;
SWIFT Code BKCHCNBJ400;
Bank Account Number ***************3521
Account Owner: Lin Zikai;
Bank of China, Xiamen Branch;
SWIFT Code KCHCNBJ73A;
Bank Account Number *******-****-***020-8
Account Owner: GuoCong Liu;
Bank of China;
SWIFT Code BKCHCNBJ73C;
Bank Account Number ********4558
Account Owner: Huang Yanfei;
Bank of China;
SWIFT Code BKCHCNBJ73C;
Bank Account Number ********7337
Account Owner: Su Zhaowei;
Bank of China Guangzhou Zhan Xi Road Sub-Branch;
SWIFT Code BKCHCNBJ400;
Bank Account Number *******-****-***066-7
Account Owner: Chen Shuyi;
Agricultural Bank of China;
SWIFT Code ABOCCNBJ190;
Bank Account Number ****** *********4717
Account Owner: Shiwen Zhu;
China Merchants Bank, Guangzhou Subsidiary Bank;
SWIFT Code CMBCCNBS;
Bank Account Number **** **** **** 1023
Account Owner: Xiufen Yang;
China Merchants Bank;
SWIFT Code CMBCCNBS;
Bank Account Number ************3869
17
Account
Account Owner: Wang Chaoying;
Bank of China;
SWIFT Code BKCHCNBJ45A;
Bank Account Number ***************2262
Account Owner: Lin Haixing;
Bank of China, Putian Branch;
SWIFT Code BKCHCNBJ73C;
Bank Account Number ***************9108
Account Owner: Xiaoning Bai;
Bank of China;
SWIFT Code BKCHCNBJ42G;
Bank Account Number ***************8674
and any other related accounts of the same customers;
(12)
PayPal shall also immediately divert to a holding account for the trust of
the Court all funds in all PayPal accounts related to the PayPal account recipients,
xyyyrz@163.com, pjessiep@126.com, outletkingdom@163.com, and
guranteehui@hotmail,com, and any other related accounts of the same customer(s)
and/or all PayPal accounts linked to, associated with, or that transmit funds into
Defendants' identified bank accounts, including but not limited to:
Account
Account Owner: Linkun Wang;
Industrial and Commercial Bank of China, Shenzhen Branch;
SWIFT Code ICBKCNBJSlN;
Bank Account Number ****************9900
Account Owner: Lai Hong Liang;
Bank of China, Putian Branch;
SWIFT Code BKCHCNBJ73A;
Bank Account Number ***************0436
Account Owner: Mengjun Cheng;
China Construction Bank, Guangdong Branch;
SWIFT Code PCBCCNBJGDX;
Bank Account Number **** **** **** ***8 885
Account Owner: Hualiang Lu;
Bank of China;
SWIFT Code BKCHCNBJ400;
Bank Account Number ***************3521
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Account
Account Owner: Lin Zikai;
Bank of China, Xiamen Branch;
SWIFT Code KCHCNBJ73A;
Bank Account Number *******-****-***020-8
Account Owner: GuoCong Liu;
Bank of China;
SWIFT Code BKCHCNBJ73C;
Bank Account Number ********4558
Account Owner: Huang Yanfei;
Bank of China;
SWIFT Code BKCHCNBJ73C;
Bank Account Number ********7337
Account Owner: Su Zhaowei;
Bank of China Guangzhou Zhan Xi Road Sub-Branch;
SWIFT Code BKCHCNBJ400;
Bank Account Number *******-****-***066-7
Account Owner: Chen Shuyi;
Agricultural Bank of China;
SWIFT Code ABOCCNBJ190;
Bank Account Number ****** *********4717
Account Owner: Shiwen Zhu;
China Merchants Bank, Guangzhou Subsidiary Bank;
SWIFT Code CMBCCNBS;
Bank Account Number **** **** **** 1023
Account Owner: Xiufen Yang;
China Merchants Bank;
SWIFT Code CMBCCNBS;
Bank Account Number ************3869
Account Owner: Wang Chaoying;
Bank of China;
SWIFT Code BKCHCNBJ45A;
Bank Account Number ***************2262
Account Owner: Lin Haixing;
Bank of China, Putian Branch;
SWIFT Code BKCHCNBJ73C;
Bank Account Number ***************9108
Account Owner: Xiaoning Bai;
Bank of China;
SWIFT Code BKCHCNBJ42G;
Bank Account Number ***************8674
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and any other related accounts of the same customers, as well as any other accounts
which transfer funds into the same financial institution account(s) as any of the other
PayPal accounts subject to this Order;
(13)
PayPal shall further, within five business days of receiving this Order,
provide Plaintiff's counsel with all data which details (i) an accounting of the total funds
restrained and identifies the PayPal account(s) which the restrained funds are related
to, and (ii) the account transactions related to all funds transmitted into the PayPal
account(s) which have been restrained. Such restraining of the funds and the
disclosure of the related financial institution account information shall be made without
notice to the account owners or the financial institutions until further order of this Court.
PayPal shall receive and maintain this Order and its contents as confidential until further
Order of this Court;
(14)
This Temporary Restraining Order shall remain in effect until the date for
the hearing on the Motion for Preliminary Injunction set forth below, or until such further
dates as set by the Court or stipulated to by the parties;
(15)
Pursuant to 15 U.S.C. § 1116(d)(5)(D) and Fed. R. Civ. P. 65(c), Plaintiff
shall post a bond in the amount of Ten Thousand Dollars and Zero Cents ($10,000.00),
as payment of damages to which Defendants may be entitled for a wrongful injunction
or restraint, during the pendency of this action, or until further Order of the Court. In the
Court's discretion, the bond may be subject to increase should the amount of the funds
seized exceed $10,000.00;
(16)
After Plaintiff's counsel has received confirmation from PayPal regarding
the funds frozen as directed herein, Plaintiff shall promptly serve a copy of the
20
Complaint, the Application for Temporary Restraining Order, this Order, and all other
pleadings and documents on file in this action on each Defendant via the corresponding
e-mail addresses provided by Defendants (i) as part of the domain registration data for
each of their respective domain names, or (ii) on their Internet websites, and the
customer service e-mail addresses used to communicate with Plaintiff's investigator, all
of which are identified on Schedule liB" hereto, and provide a copy of the Order by e
mail to the Registrar of record for each of their respective domain names. In addition,
Plaintiff shall post a copy of the Complaint, the Application for Temporary Restraining
Order, and this Order, as well as all other documents filed in this action on the website
located at http://servingnotice.com/afpp3/index.html, within forty-eight (48) hours of
control of the Subject Domain Names being changed to the Court via the New
Registrar's holding account, and such notice so given shall be deemed good and
sufficient service thereof. Plaintiff shall continue to provide notice of these proceedings
and copies of the documents on file in this matter to Defendants by regularly updating
the website located at http://servingnotice.com/afpp3/index.htmlor by other means
reasonably calculated to give notice which is permitted by the Court;
(17)
A hearing is hereby SET for February 21, 2013, at 9:00 a.m., in
Courtroom 203E of the United States Courthouse, 299 East Broward Boulevard, Fort
Lauderdale, Florida. At that hearing, Defendants and/or any other affected persons
may challenge the appropriateness of this Order and move to dissolve the same, and
the Court will hear argument on Plaintiff's Motion for Preliminary Injunction;
(18)
By February 13, 2013, Defendants shall file with the Court and serve on
Plaintiff's counsel any Response to Plaintiff's Motion for Preliminary Injunction. Plaintiff
21
shall file and serve any Reply by February 14, 2013. These dates may be revised upon
stipulation by all parties and approval of the Court;
(19)
By noon on February 15, 2013, Plaintiff and Defendants shall file
Witness Lists identifying any witnesses that the parties expect to call at the preliminaryinjunction hearing. At the option of the parties, direct testimony may be submitted in the
form of written affidavits; however, all affiants will be subject to live cross examination at
the hearing;
(20)
All Defendants are hereby notified that if they do not timely respond
to Plaintiff's Motion for Preliminary Injunction and do not appear at the scheduled
hearing, the Court may enter a preliminary injunction against them by default.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 7th day of February, 2013, at
J0: / ~ •
..
I. COHN
STATES DISTRIC
Copies provided to:
Counsel of record via CM/ECF
22
UDGE
SCHEDULE A
DEFENDANTS BY NUMBER AND SUBJECT DOMAIN NAME
Defendant
Number
1
2
2
3
4
5
6
6
7
8
9
9
10
11
12
13
14
15
Defendant/Domain Name
007fashion.com
brand-cap.com
shoes5a.com
brand-pick. com
buykicksonline .com
canparka.com
chromeclothes.net
chromeclothes.com
clisshoes.com
clothes-supply.com
eshoppinginchina.net
wholesalecube.com
hopev.com
jumpmanlocker.us
nodus79.com
onlineunite.com
outletmallshop. com
shopane.com
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SCHEDULE "B"
DEFENDANTS BY SUBJECT DOMAIN NAME
AND ASSOCIATED E-MAIL ADDRESSES
Defendant
Number
Defendant
1
007fashion.com
2
brand-cap.com
shoes5a.com
3
brand-pick. com
4
buykicksonline.com
5
canparka.com
6
ch romeclothes. net
chromeclothes. com
7
clisshoes.com
8
clothes-supply. com
9
eshoppinginchina.net
wholesalecube.com
E-Mail Address(es)
sales@g4brand.com
knI427@163.com
niceda~881 O@hotmail.com
domain@diyworld.com
I
!
pickbrand@~ahoo.com
domain@d i~world. com
bu~kicksonline@hotmail.com
43423276@gg.com
cantonike@hotmail.com
domain@di~world.com
chromeclothes@~ahoo.cn
chromeclothes@gmail.com
shatter lam@163.com
wholesalecheaps@hotmail.com
domain@divworld.com
clothessuppl~2@gmail.com
clothes-suppl~@hotmail.com
kamewholesales@gmail.com
zkin2007@hotmail.com
contact@privac~protect.org
10
hopev.com
11
jumpmanlocker.us
12
nodus79.com
nodus79 seller08@hotmail.com
marco-chen@126.com
13
onlineunite.com
912136400@gg.com
14
outletmallshop. com
outletmallshop@163.com
363838034@gg.com
poeon321@163.com
iumpmanlocker@~ahoo.com.cn
safasfasfa@afasfa.com
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Defendant
Number
15
Defendant
shopane.com
E-Mail Address(es)
etol2sell@~ahoo.com
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