Empire Level Manufacturing Corp. v. Toolrich Imp. & Exp. Co., Ltd. et al
Filing
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TEMPORARY RESTRAINING ORDER Granting 2 Plaintiff's Motion for Temporary Retraining Order. Show Cause Hearing re 3 Motion for Preliminary Injunction is set for 5/20/2014 10:00 AM in LV Courtroom 7D before Chief Judge Gloria M. Navarro. This Order is conditioned upon Empire filing an undertaking in the form of a bond of at least the amount $ 10,000.00. Signed by Chief Judge Gloria M. Navarro on 05/08/2014. (Copies have been distributed pursuant to the NEF - AC)
Case 2:14-cv-00718-GMN-CWH Document 4 Filed 05/07/14 Page 1 of 7
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F. Christopher Austin, (NV Bar No. 6559)
WEIDE & MILLER, LTD.
7251 W. Lake Mead Blvd., Suite 530
Las Vegas, NV 89128-8373
(702) 382-4804
caustin@weidemiller.com
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Peter N. Jansson (pending pro hac vice)
Eric V.C. Jansson (pending pro hac vice)
Molly Hogan McKinley (pending pro hac vice)
JANSSON MUNGER MCKINLEY & SHAPE LTD
245 Main Street
Racine, WI 53403
(262) 632-6900
pjansson@janlaw.com
ejansson@janlaw.com
mmckinley@janlaw.com
Attorneys for Plaintiff
Empire Level Manufacturing Corp.
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UNTED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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Empire Level Manufacturing Corp.,
a Wisconsin corporation,
Plaintiff,
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v.
Case No.: 2:14-cv-00718-GMN-CWH
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Toolrich Imp. & Exp. Co., Ltd.,
a Chinese company,
Zhejiang Yongkang Shiya Wanxing Tools Factory,
a Chinese company,
Wuxi Just Int’l Trading Co., Ltd.,
a Chinese company,
Pro-Starter Tools Co. Ltd.,
a Chinese company,
Zhejiang Boda Measure Tools Co., Ltd.,
a Chinese company,
Jinhua Shunchi Tools Factory,
a/k/a Jinhua Chunyi Tools Co., Ltd.,
a/k/a Jinhua City Shunchi Tools Factory,
a Chinese company,
Cixi Ocean Trade Co., Ltd.,
a Chinese company, and
Shaoxing Sunway Tools & Hardware Export &
Import Co. Ltd.,
a Chinese company,
ORDER GRANTING EMERGENCY
EX PARTE MOTION FOR
TEMPORARY RESTRAINING
ORDER, SEIZURE ORDER, AND
PRELIMINARY INJUNCTION
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Defendant(s).
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WEIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
(702) 382-4804
fca-w-0131
1
Temporary Restraining Order
Case 2:14-cv-00718-GMN-CWH Document 4 Filed 05/07/14 Page 2 of 7
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Empire Level Manufacturing Corp. (“Empire”), having filed a Complaint against
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Defendants Toolrich Imp. & Exp. Co., Ltd., a Chinese company (“Toolrich”), Zhejiang
Cinese
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Yongkang Shiya Wanxing Tools Factory, a Chinese company (“Shiva”), Wuxi Just Int’l
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Trading Co., Ltd., a Chinese company, (“Wuxi Just”), Pro-Starter Tools Co. Ltd., a Chinese
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company (“Pro-Starter”), Zhejiang Boda Measure Tools Co., Ltd., a Chinese company
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(“Boda”), Jinhua Shunchi Tools Factory, a/k/a Jinhua Chunyi Tools Co., Ltd., a/k/a Jinhua City
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Shunchi Tools Factory, a Chinese company (“Jinhua”), Cixi Ocean Trade Co., Ltd., a Chinese
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company (“Cixi Ocean”), and Shaoxing Sunway Tools & Hardware Export & Import Co. Ltd., a
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Chinese company, (“Shaoxing”) (collectively, “Defendants”); and having filed an ex parte
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Motion for a Temporary Restraining Order, Seizure Order an Preliminary Injunction
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(“Motion”); and the Court having considered the arguments contained therein and based on
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those papers, the Court finds as follows:
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1.
Empire is likely to succeed in demonstrating that it owns a federally registered
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trademark for its Empire level, United States Trademark Registration No. 2,833,616 (“the ‘616
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Trademark Registration”) for key portions of the look of such Empire torpedo level, namely, the
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appearance of its vial window, as well as common law rights in and to the distinctive trade dress
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signifying by the overall appearance of such torpedo level the source of such product. The non-
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functional aesthetic elements together with the ‘616 Trademark Registration creates the
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distinctive overall appearance and collectively comprise the protectable trademark rights at issue
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(collectively, the “Empire Marks”).
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2.
The injury to Empire’s reputation and goodwill resulting from Defendants’
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infringement of the Empire Marks is by its very nature irreparable, as Defendants are unlawfully
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seeking to capitalize on the reputation and goodwill of Empire.
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3.
The harm to Empire from Defendants’ infringement clearly outweighs the
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potential harm to any legitimate interests of Defendants resulting from the issuance of an
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injunction.
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4.
Empire has not publicized the requested seizure.
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5.
There is reason to believe that between May 7 and May 8, 2014, Defendants’
WEIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
(702) 382-4804
fca-w-0131
2
Temporary Restraining Order
Case 2:14-cv-00718-GMN-CWH Document 4 Filed 05/07/14 Page 3 of 7
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counterfeit Empire products will be located at:
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The National Hardware Show
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Las Vegas Convention Center Hall
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Booth Numbers: 6625, 540, 325, 748, 601, 511, 5146, and 1501
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3150 Paradise Road
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Las Vegas, NV 89109
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6.
Empire has given reasonable notice of the subject application to the United States
Attorney for this judicial district.
NOW THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:
A.
Defendants, their officers, agents, servants, employees, and attorneys, and all
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other persons in active concert or participation with one or more of them who receive actual
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notice of this Order, are hereby temporarily enjoined and restrained, pending a determination of
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Empire’s motion for preliminary injunction, from engaging in the following activities and from
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assisting or inducing others to engage in the following activities:
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i.
Using any of the Empire Marks or any other trademark that is a colorable
imitation of any Empire Mark or confusingly similar thereto in connection with a level;
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ii.
Importing, exporting, distributing, shipping, introducing into commerce,
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returning, disposing of, purchasing, offering for sale, marketing, selling, soliciting, filling orders
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for, promoting, or advertising any level embodying the Empire Marks;
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iii.
Passing off, promoting, or selling any products as being produced by or
under the supervision or control of Empire when such is not the case; and/or
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iv.
Destroying, altering shipping, secreting, or otherwise making unavailable
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to the Court, Empire, the United States Marshal or other law enforcement officer, any
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documents or tangible things concerning the importing, exporting, distribution, shipment,
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introduction into commerce, return, disposal of, purchase, offer for sale, sale, solicitation, filling
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of orders for, promotion or advertising of any level product embodying the Element Marks,
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and/or any documents or tangible things subject to seizure or discovery hereunder or otherwise
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relevant to this action.
WEIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
(702) 382-4804
fca-w-0131
3
Temporary Restraining Order
Case 2:14-cv-00718-GMN-CWH Document 4 Filed 05/07/14 Page 4 of 7
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B.
Within three (3) business days from the date of the issuance of this Order, the
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United States Marshal, other law enforcement officer, or security officer and persons acting
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under their supervision (“Enforcement Officer”), in the company of Empire’s counsel, shall
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seize at the locations identified above or if the booth locations identified above are changed, at
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such new booth locations identified as being registered to the associated Defendant or
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Defendants at the National Hardware Show, and impound the following:
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i.
all goods, packaging, containers and advertising material (including
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circulars, price lists, labels, signs, catalogs, posters, displays, brochures, flyers and promotional
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items) bearing and/or embodying the Empire Marks, or displaying any Empire products.
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ii.
all business records (including books, records, accounting invoices,
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purchase orders, computer records and tapes and any other written, visual or auditory
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information) which document the purchase, distribution, sale or receipt of the documents and
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things described in paragraph vi(a) above.
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C.
Defendants shall fully cooperate with the United States Marshal or other
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Enforcement Officer in furtherance of the foregoing duties, including permitting entrance upon
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Defendants’ premises and permitting discovery and inventory of all documents and things to be
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seized and impounded and disclosing to an accompanying the United States Marshal or other
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Enforcement Officer and any persons with him or her, to such places wherein any documents or
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things to be seized and impounded are kept or stored or may be found including vehicles and
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conveyances used to store or transport such documents or things.
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D.
The United States Marshal or other Enforcement Officer conducting the seizure
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as directed herein may use reasonable force as necessary to open doors, drawers, closets, safes,
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locks and vehicles on the above identified premises and Empire will hold the United States
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Marshal or other Enforcement Officer harmless for any liability related to the execution of this
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Order.
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E.
Empire’s attorney shall provide a person capable of determining whether or not
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an item is covered by the preceding paragraphs and the United States Marshal or other
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Enforcement Officers shall follow his or her determination in the seizure.
WEIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
(702) 382-4804
fca-w-0131
4
Temporary Restraining Order
Case 2:14-cv-00718-GMN-CWH Document 4 Filed 05/07/14 Page 5 of 7
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F.
The United States Marshal or other Enforcement Officer, his or her agent or
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designee, shall promptly conduct an inventory of all documents and things seized and
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impounded and shall promptly provide a copy of such inventory to Defendants from whom such
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documents and things are seized and to Empire or its attorneys, or make the same available for
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copying.
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G.
Empire’s counsel shall be permitted immediately to inspect and copy the
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documents and things seized pursuant to this Order and to accompany the United States Marshal
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or other Enforcement Officer, during the searching, seizing and impounding provided for herein,
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provided Empire’s counsel: (a) maintain as confidential all trade secrets or other confidential
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information of Defendants designated as such by Defendants; and (b) pending the hearing on
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whether to confirm the seizure, does not disclose Defendant’s designated trade secrets or
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confidential information therein to Empire or any third parties, except with leave of the Court.
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The term “Empire counsel” shall mean throughout this Order attorneys of record in this matter,
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as well as paralegal assistants, stenographic and clerical employees working under the direct
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supervision or control of such counsel.
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H.
The United States Marshal or other Enforcement Officer and persons acting
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under their supervision are hereby authorized to make repeated seizures of attempted seizures at
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the location identified in this Order, upon being advised by counsel for Empire that new or
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additional infringing articles have been located or placed in the possession or under the control
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of the Defendants or any of them, or of any agents, servants, or employees of Defendants or any
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of them. All seizures executed pursuant to this Order are to be completed within three (3)
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business days of the date of this Order.
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I.
Defendants are hereby required to give proof of a correct name, residential
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address and phone number where they can be reached by the United States Marshal or other
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Enforcement Officer and that failure to give such correct name, address and phone number may
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result in contempt of this Court.
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J.
Personal service of a copy of this Order and the Verified Complaint and other
papers upon which this Order is based shall be made upon defendants by the United States
WEIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
(702) 382-4804
fca-w-0131
5
Temporary Restraining Order
Case 2:14-cv-00718-GMN-CWH Document 4 Filed 05/07/14 Page 6 of 7
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Marshal or other Enforcement Officer at the time of any seizure or attempted seizure as
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provided herein, which shall constitute sufficient service thereof.
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K.
Defendants shall show cause before the Honorable Gloria M. Navarro,
,
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United States District Judge, on Tuesday, May 20, , 2014 at 10:00 a.m.
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Courtroom 7D at the Lloyde D. George United states Federal Courthouse, 333 Las Vegas
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Boulevard South, Las Vegas, Nevada 89101, or as soon thereafter as the parties may be heard
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concerning whether the seizure order should be confirmed and why preliminary injunction
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should not issue pursuant to Fed.R.Civ.P. 65(a), enjoining Defendants pending the final hearing
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and determination of this action, from such activities as Defendants have today been temporarily
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restrained from engaging and why such additional and other relief as may be appropriate should
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not issue.
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L.
a.m./p.m. in
The hearings regarding the seizure order and request for preliminary injunction
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are hereby consolidated in the interest of judicial economy. Separate hearings will
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unnecessarily duplicate the efforts of the parties and the Court, since the evidence and legal
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argument for each issue substantially overlap.
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M.
This Order is conditioned upon Empire filing an undertaking in the form of a
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bond of at least the amount of $ 10,000.00
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as may be suffered or sustained by a party who is found to have been wrongfully restrained or
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who’s property has been wrongfully seized hereby.
to secure the payment of such costs and damages
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________________________________
UNITED STATES DISTRICT JUDGE
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May 8, 2014
DATED: _________________________
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WEIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
(702) 382-4804
fca-w-0131
6
Temporary Restraining Order
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Respectfully submitted by:
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F. Christopher Austin, (NV Bar No. 6559)
WEIDE & MILLER, LTD.
7251 W. Lake Mead Blvd., Suite 530
Las Vegas, NV 89128-8373
(702) 382-4804
caustin@weidemiller.com
Peter N. Jansson (pending pro hac vice)
Eric V.C. Jansson (pending pro hac vice)
Molly Hogan McKinley (pending pro hac vice)
JANSSON MUNGER MCKINLEY & SHAPE LTD
245 Main Street
Racine, WI 53403
(262) 632-6900
pjansson@janlaw.com
ejansson@janlaw.com
mmckinley@janlaw.com
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Attorneys for Plaintiff
Empire Level Manufacturing Corp.
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WEIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
(702) 382-4804
fca-w-0131
7
Temporary Restraining Order
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