Nike, Inc. et al v. QiLoo International Limited

Filing 4

Emergency MOTION for Temporary Restraining Order by Plaintiffs Converse, Inc., Nike, Inc.. Motion ripe 2/6/2012. (Attachments: # 1 Declaration Kelly Hibler, # 2 Declaration Wayne Patrick Seehafer, # 3 Declaration Thomas Scavuzzo, # 4 Declaration Erik S. Maurer, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I, # 14 Exhibit J, # 15 Exhibit K, # 16 Exhibit L, # 17 Exhibit M, # 18 Exhibit N, # 19 Exhibit O, # 20 Exhibit P, # 21 Exhibit Q, # 22 Exhibit R, # 23 Exhibit S, # 24 Exhibit T, # 25 Exhibit U, # 26 Exhibit V, # 27 Exhibit W, # 28 Exhibit X, # 29 Exhibit Y, # 30 Exhibit Z, # 31 Exhibit AA, # 32 Exhibit BB, # 33 Exhibit CC, # 34 Exhibit DD, # 35 Exhibit EE, # 36 Exhibit FF, # 37 Exhibit GG, # 38 Exhibit HH, # 39 Exhibit II, # 40 Exhibit JJ, # 41 Exhibit KK, # 42 Exhibit LL, # 43 Exhibit MM, # 44 Exhibit NN, # 45 Exhibit OO, # 46 Exhibit PP, # 47 Exhibit QQ, # 48 Memorandum Of Law, # 49 Proposed Order)(Fountain, Jonathan)

1 Michael J. McCue (Nevada Bar #6055)
[e-mail]

2 Jonathan W. Fountain (Nevada Bar #10351)
[e-mail]

3 Lewis and Roca LLP

3993 Howard Hughes Parkway, Suite 600

4 Las Vegas, Nevada 89109

Telephone: [phone]

5 Facsimile: [phone]
6 Christopher J. Renk
Erik S. Maurer

7 Michael J. Harris
Azuka C. Dike

8 Banner & Witcoff, Ltd.

10 South Wacker Drive, Suite 3000

9 Chicago, Illinois 60606

Telephone: [phone]

10 Facsimile: [phone]
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(Pro Hac Vice to be Submitted)

12 Attorneys for Plaintiffs, NIKE, Inc. and Converse, Inc.
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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
NIKE, INC.

Case No.

and

EMERGENCY EX PARTE
TEMPORARY RESTRAINING
ORDER AND SEIZURE ORDER

CONVERSE, INC.,
Plaintiffs,
vs.
QILOO INTERNATIONAL LIMITED
Defendant.

Plaintiffs, NIKE, Inc., and Converse, Inc., have moved ex parte for a Temporary

24 Restraining Order, Seizure Order, and an Order for Preliminary Injunction, pursuant to Rule 65
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of the Federal Rules of Civil Procedure, Lanham Act Section 34 (15 U.S.C. § 1116), the Patent

Act, 35 U.S.C. § 283, and Local Rule 7-5. Plaintiffs allege that Defendant QiLoo International
Ltd. (“QiLoo”) has imported into the United States, and is distributing, promoting, offering to

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1 sell, and selling footwear products at the World Shoe Association (“WSA”) trade show in Las
2 Vegas, Nevada, that infringe at least Converse Trademarks. The Court having duly considered
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Plaintiffs’ Complaint, Emergency Motion and Supporting Memorandum for Entry of Temporary
Restraining Order and Preliminary Injunction, declarations and exhibits submitted therewith,
makes the following findings and conclusions:
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Plaintiffs are likely to succeed in showing that the NIKE Design Patents and the

8 Converse and NIKE Trademarks that are appended to the Complaint as Exhibits A through BB
9 are owned by Plaintiffs, are valid, and are enforceable, and that QiLoo has imported, distributed,
10 promoted, offered for sale, and sold shoes bearing designs that infringe the NIKE Design Patents
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and that are counterfeits of the Converse and NIKE Trademarks (hereafter, “Infringing Shoes”).
2.

It appears to the Court that QiLoo is a China-based manufacturer of footwear

products that, with the exception of its temporary presence in Las Vegas during the biannual

15 WSA show, does not have a regular place of business or assets in the United States. Further,
16 over the past several WSA shows, QiLoo has established a pattern of importing Infringing Shoe
17 designs into the United States, promoting, offering to sell, and selling those shoe designs at the
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WSA show, then leaving the United States.
3.

Absent an ex parte temporary restraining order and seizure order, QiLoo’s

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importation, promotion, offers for sale, and sale of Infringing Shoes will result in immediate and
irreparable injury to Plaintiffs in the form of loss of control over their valuable intellectual

23 property rights, loss of consumer goodwill, and interference with Plaintiffs’ ability to exploit the
24 NIKE Design Patents and the NIKE and Converse Trademarks. Further, because QiLoo has no
25 presence in the United States, it may be difficult or impossible for Plaintiffs to recover a money
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judgment against QiLoo.
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It appears to the Court based on Plaintiffs’ representations that they have not
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1 publicized their application for an ex parte temporary restraining order and seizure order.
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The harm to Plaintiffs in denying the requested temporary restraining order and

seizure order outweighs the harm to the legitimate interests of QiLoo from granting such relief.
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The public interest weighs in favor of granting Plaintiffs the requested temporary

restraining order and seizure order.
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QiLoo’s Infringing Shoes and materials evidencing QiLoo’s infringements

8 alleged in the Complaint are in QiLoo’s possession at the WSA show currently taking place in
9 Las Vegas, Nevada, but these materials would likely be destroyed, moved, hidden, or otherwise
10 made inaccessible to the Court if Plaintiffs were to proceed on notice to QiLoo.
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TEMPORARY RESTRAINING ORDER
IT IS THEREFORE ORDERED that pending a decision by the Court on Plaintiffs’

15 application for a preliminary injunction, QiLoo and its officers, agents, servants, employees, and
16 attorneys; and all other persons acting in active concert or participation with any of them, are
17 hereby immediately, temporarily restrained from infringing NIKE’s Design Patents and from
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infringing Converse’s and NIKE’s Trademarks at the WSA show in Las Vegas, Nevada from
February 6-8, 2012. Specifically, QiLoo is hereby temporarily restrained from making, using,

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selling, offering to sell, and importing into the United States footwear designs covered by U.S.
Patent Nos. D361,884; D429,877; D462,830; D475,523; D494,353; D499,247, D500,585;

23 D500,917; D523,618; D524,028; D524,529; D532,600; D546,541; D547,541; D555,332;
24 D573,338; D573,339; D575,046; D578,294; D579,186; D580,636; D580,646; and D586,548,
25 and colorable imitations thereof. In addition, QiLoo is hereby temporarily restrained from using
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in commerce any reproduction, counterfeit, copy, or colorable imitation of the Converse and
NIKE Trademarks reflected in U.S. Trademark Registration Nos. 1,588,960; 3,258,103;
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1 3,451,905; 4,062,112; and 4,065,482, including selling, offering for sale, distributing, promoting,
2 or advertising goods or services in connection with those trademarks or colorable imitations
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thereof; and transferring, moving, returning, destroying, or otherwise disposing of any Infringing
Shoes except pursuant to the below Seizure Order.

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SEIZURE ORDER

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IT IS FURTHER ORDERED that Defendant’s infringing shoe products, records

9 (including computers and electronic evidence) of Defendant’s sales and offers to sell infringing
10 products, and Defendant’s promotional display(s), sales equipment, and materials used to
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facilitate Defendant’s infringements (collectively, “Materials”) shall be seized by the United
States Marshals Service, assisted by one or more attorneys or representatives of Plaintiffs, at the
booth rented or occupied by the Defendant at the WSA trade show in Las Vegas, Nevada, during

15 the period of February 6 through 8, 2012. The United States Marshals Service may use all
16 reasonable force in conducting the seizure and may open doors, locks, boxes, brief cases, and
17 containers of any type or nature to locate and identify Materials to be seized. Attorneys and
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other representatives of Plaintiffs shall accompany the United States Marshals Service during the
seizure to identify the Materials to be seized.

Plaintiffs’ counsel shall itemize and take

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possession of the seized Materials, provide a copy of the inventory to the United States Marshals
Service, and file the inventory with the Court. In addition, Plaintiffs’ counsel may record the

23 contents of QiLoo’s booth and Materials by photographic and/or videographic means during the
24 seizure action. The United States Marshals Service shall not retain custody of seized Materials.
25 Plaintiffs agree to indemnify the United States Marshals Service and hold it harmless from any
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suit, claim, cause of action, damage, loss, or injury arising from the execution of the seizure
described in this Order.
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IT IS FURTHER ORDERED that this Order and the Summons and Complaint must be

2 served upon the Defendant, if found, at the time of the seizure, and by other means reasonably
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calculated to give the Defendant notice of this action.
IT IS FURTHER ORDERED that, Plaintiffs shall post a bond of $25,000. To the extent
QiLoo believes that a higher bond is necessary pursuant to Rule 65(c), Fed. R. Civ. P., QiLoo

7 shall file an application to the Court and provide notice to counsel for Plaintiffs on or before
, 2012.

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IT IS FURTHER ORDERED that a preliminary injunction hearing is set for _______

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, 2012, at

a.m./p.m., in Courtroom

, before

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Defendant shall file and serve any opposition to Plaintiffs’ motion for a preliminary
injunction on or before February

, 2012.

Plaintiffs shall file and serve any reply in support of their motion for a preliminary

16 injunction on or before

, 2012.

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SIGNED AND ENTERED this

day of February, 2012.

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UNITED STATES DISTRICT JUDGE

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