Empire Level Manufacturing Corp. v. Toolrich Imp. & Exp. Co., Ltd. et al

Filing 25

ORDER GRANTING PRELIMINARY INJUNCTION. Signed by Chief Judge Gloria M. Navarro on 8/6/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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F. Christopher Austin, (NV Bar No. 6559)
Ryan Gile, (NV Bar No. 8807)
WEIDE & MILLER, LTD.
7251 W. Lake Mead Blvd., Suite 530
Las Vegas, NV 89128-8373
[phone]
[e-mail]
[e-mail]
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
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Empire Level Manufacturing Corp.
/
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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Empire Level Manufacturing Corp.,
a Wisconsin corporation,
Plaintiff,

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v.

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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,

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ORDER GRANTING
PRELIMINARY INJUNCTION

Defendants.

W EIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
[phone]

Case No.: 2:14-cv-00718

fca-w-0142

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Order Granting Preliminary Injuction

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Empire Level Manufacturing Corp. (“Empire”) filed a Verified Complaint against the
eight above-listed Defendants, and at the same time filed an ex parte Motion for a Temporary
Restraining Order, Seizure Order and Preliminary Injunction (“the Motion”). The Court
considered the arguments contained in the Motion and its supporting documents, and, based
thereon, entered a temporary restraining and seizure order (DE-10) on May 8, 2014, which also
set a bond requirement of $10,000 and a preliminary injunction hearing date of May 20, 2014.
Counsel for Plaintiff Empire appeared at the preliminary injunction hearing, but counsel did not
appear for any of the Defendants. At such hearing the Court was informed that, on May 8, 2014,
the Defendants were served process and the Defendants’ subject goods were seized at the
National Hardware Show in Las Vegas pursuant to the Order. Based on the papers submitted
and the arguments and responses provided at the hearing, the Court finds and orders as follows:
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trademark, United States Trademark Registration No. 2,833,616 (“the ‘616 Trademark
Registration,” a copy of which is attached hereto as Exhibit 1), for key portions of the look of its
em81.9 torpedo level, namely, the appearance of its vial window, as well as common law rights
in and to the overall appearance of such torpedo level (see attached Exhibit 2), and that such
registered trademark and overall appearance serve to signify the source of such product. The
non-functional aesthetic elements which constitute the ‘616 Trademark Registration and the
overall appearance collectively comprise the protectable trademark rights at issue (collectively,
the “Empire Marks”).
2.

The injury to Empire’s reputation and goodwill resulting from Defendants’

infringement of the Empire Marks is irreparable, and Defendants are unlawfully seeking to
capitalize on the reputation and goodwill of Empire.
3.

The harm to Empire from Defendants’ infringement clearly outweighs any

potential harm to any legitimate interest of Defendants resulting from the issuance of a
preliminary injunction.
4.

W EIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
[phone]

Empire is likely to succeed in demonstrating that it owns a federally registered

fca-w-0142

The public interest in avoiding confusion is served by issuance of an injunction.
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Order Granting Preliminary Injuction

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5.

The value of the seized goods, all of which were shown at the hearing, is no more

than modest; furthermore, counsel represented that Empire is financially responsible.

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NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:

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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 enjoined and restrained, throughout the pendency of this litigation or

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until the Court otherwise orders, from engaging in the following activities and from assisting or

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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, including without limitation on the Internet, any level embodying

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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 Empire Marks,

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and/or any documents or tangible things in any way pertinent to this action.

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B.

Empire’s counsel shall be permitted to maintain possession of the seized goods

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during this litigation for use by the Court and by counsel for the parties pursuant to the

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requirements of the Federal Rules of Civil Procedure. The term “Empire’s counsel” as used

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herein shall mean attorneys of record in this matter, as well as paralegal assistants, stenographic

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and clerical employees working under the direct supervision or control of such counsel.

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C.

W EIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
[phone]

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Service of a copy of this Order and the Verified Complaint shall be made upon
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Order Granting Preliminary Injuction

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Defendants by Empire’s counsel by mail to the addresses set forth in the Verified Complaint

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and/or by email to contact information otherwise provided by Defendants, and/or by facsimile;

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service by any of such methods shall constitute sufficient service thereof.

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D.

The bond, previously set (in DE-10) at $10,000, is hereby reduced to $100, to

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secure the payment of such costs and damages as may be suffered or sustained by a party who is

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found to have been wrongfully enjoined or whose property has been wrongfully seized.

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IT IS SO ORDERED this 6th day of August, 2014.

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________________________________
GLORIA M. NAVARRO
UNITED STATES DISTRICT JUDGE

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________________________________
Gloria M. Navarro, Chief Judge
DATED: _________________________
United States District Court

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Respectfully submitted by:
/F. Christopher Austin/
F. Christopher Austin, (NV Bar No. 6559)
Ryan Gile, (NV Bar No. 8807)
WEIDE & MILLER, LTD.
7251 W. Lake Mead Blvd., Suite 530
Las Vegas, NV 89128-8373
[phone]
[e-mail]
[e-mail]
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
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Empire Level Manufacturing Corp.

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W EIDE & MILLER, LTD.
7251 W. LAKE MEAD BLVD.,
SUITE 530
LAS VEGAS,
NEVADA 89128
[phone]

fca-w-0142

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Order Granting Preliminary Injuction

Exhibit 1

Exhibit B

Exhibit 2