Omix Ada, Inc. v. Changzhou Jiulong Auto Lamps Factory et al

Filing 10

TEMPORARY RESTRAINING ORDER. ORDERED that Omix shall deposit $10,000.00 with the Clerk of Court. Defendants shall file an application by 11/7/2016 3:00pm. FURTHER ORDERED that a preliminary injunction hearing is set for 11/10/2016 11:30am in Co urtroom 7D before the Honorable Gloria M. Navarro. Defendants shall serve any opposition to motion for preliminary injunction on or before 11/8/2016 3:00pm. Signed by Chief Judge Gloria M. Navarro on 11/1/2016. (Copies have been distributed pursuant to the NEF, cc: Finance - JM)

Case 2:16-cv-02527-GMN-CWH Document 4 Filed 11/01/16 Page 1 of 6

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DICKINSON WRIGHT PLLC
JOHN L. KRIEGER
Nevada Bar No. 6023
Email: [e-mail]
JOEL Z. SCHWARZ
Nevada Bar No. 9181
Email: [e-mail]
KENDAL L. WEISENMILLER
Nevada Bar No. 11946
Email: [e-mail]
8363 West Sunset Road, Suite 200
Las Vegas, Nevada 89113-2210
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff Omix-ADA, Inc.
UNITED STATES DISTRICT COURT

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8363 West Sunset Road, Suite 200
Las Vegas, Nevada 89113-2210

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DISTRICT OF NEVADA

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OMIX-ADA, INC., a Georgia Corporation,

CASE NO. 2:16-cv-2527
DEPT.

Plaintiff,

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TEMPORARY RESTRAINING ORDER
AND SEIZURE ORDER

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v.

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CHANGZHOU JIULONG AUTO LAMPS
FACTORY; GUANGZHOU VCAN
ELECTRONIC TECHNOLOGY CO., LTD.;
MAXGRAND, LTD.; SANMAK LIGHTING
CO., LTD.; SHENZHEN UNISUN
TECHNOLOGY CO., LTD.; and UNITY 4WD
ACCESSORIES CO., LTD.,

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Defendants.
Plaintiff OMIX-ADA, INC. (“Omix” or “Plaintiff”) has moved ex parte for a Temporary
Restraining Order, Seizure Order and a Preliminary Injunction, pursuant to the Patent Act, 35
U.S.C. § 283; Federal Rules of Civil Procedure (“FRCP”) 64 and 65; and Local Rule (“LR”) 7-4.
Omix alleges Changzhou Jiulong Auto Lamps Factory (“Changzhou Jiulong”);
Guangzhou Vcan Electronic Technology Co., Ltd. (“Guangzho Vcan”); Maxgrand, Ltd.
(“Maxgrand”); Sanmak Lighting Co., Ltd. (“Sanmak”); Shenzhen Unisun Technology Co., Ltd.

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Case 2:16-cv-02527-GMN-CWH Document 4 Filed 11/01/16 Page 2 of 6

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(“Unisun”) and Unity 4WD Accessories Co., LTD. (“Unity”, and together with Changzhou

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Jiulong, Guangzhou Vcan, Maxgrand, Sanmak and Unisun, the “Defendants”) have made,

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imported into the United States, sold, offered to sell, distributed, promoted, and/or advertised at

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the SEMA Show (“SEMA”) held on November 1-4, 2016 at the Las Vegas Convention Center

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and the Automotive Aftermarket Products Expo (“AAPEX”) held on November 1-3, 2016 at the

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Sands Expo, products that infringe U.S. Patent Nos. US 9,145,084 B2 (the “ ‘084 Patent”)

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entitled “Auxiliary Light Mount Assembly for Tubular Bumpers”, US D692,290 S (the “ ’290

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Patent”) entitled “Hood Latch”, and US D749,995 S (the “ ‘995 Patent” and, collectively with

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the ‘084 Patent, the “Omix Patents”) entitled “Front Grille for a Vehicle”, and the RUGGED

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RIDGE trademarks owned by Omix, Registration No. 3,596,653 and 3,671,044.

8363 West Sunset Road, Suite 200
Las Vegas, Nevada 89113-2210

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The Court, having duly considered Omix’s Complaint, Emergency Ex Parte Motion And

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Supporting Memorandum For Entry Of A Temporary Restraining Order, Seizure Order And

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Preliminary Injunction, and the declarations and exhibits submitted therewith, hereby makes the

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following findings and conclusions:

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1.

Omix is likely to succeed on the merits of its patent infringement claims. Omix is

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likely to succeed in showing that the ‘084 Patent is owned by Omix, is valid and enforceable,

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and that Defendants Guangzhou Vcan Electronic Technology Co., Ltd. (“Guangzho Vcan”);

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Sanmak Lighting Co., Ltd (“Sanmak”); Shenzhen Unisun Technology Co., Ltd. (“Unisun”), and

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Unity 4WD Accessories Co., Ltd. (“Unity” and, collectively with Guangzho Vcan, Sanmark and

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Unison, the “ ‘084 Defendants”) have imported into the United States, sold, offered to sell,

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distributed, promoted, and/or advertised auxiliary light mount assemblies for tubular bumpers

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that infringe on the ‘084 Patent (the “ ‘084 Infringing Products”).

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Defendants have identified their ‘084 Infringing Products by the following SKU numbers:

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Defendant Guangzhou Vcan – SKU V-W21, and Defendant Unisun – SKU UT-B101.

At AAPEX, the ‘084

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Omix is likely to succeed in showing that the ‘290 patent is owned by Omix, is valid and

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enforceable, and that Defendant Unity has imported into the United States, sold, offered to sell,

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distributed, promoted, and/or advertised hood latches that infringe on the ‘290 Patent (the “ ‘290

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Infringing Produts”).
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Omix is likely to succeed in showing that the ‘995 Patent is owned by Omix, is valid and

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enforceable, and that Changzhou Jiulong Auto Lamps Factory (“Changzhou Jiulong”);

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Maxgrand, LTD. (“Maxgrand”) and Unity (together with Changzhou Jiulong and Maxgrand, the

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“ ‘995 Defendants”) have imported into the United States, sold, offered to sell, distributed,

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promoted, and/or advertised front grilles that infringe on the ‘995 Patent (the “ ‘995 Infringing

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Products”).

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Omix is likely to succeed in showing that Defendant Unity is intentionally using a mark

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that is identical or nearly identical to Omix’s RUGGED RIDGE mark for the same goods that

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Omix’s federally-registered trademarks protect and that confusion is inevitable.
2.

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It appears to the Court that Defendants are China-based manufacturers of

8363 West Sunset Road, Suite 200
Las Vegas, Nevada 89113-2210

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aftermarket auto care parts and automotive specialty products that, with the exception of their

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temporary presence in Las Vegas during the AAPEX and/or SEMA tradeshows, do not have a

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regular place of business or assets in the United States. Defendants have imported into the

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United States, sold and/or offered to sell the ‘084 Infringing Products, the ‘290 Infringing

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Products, and ‘995 Infringing Products, respectively, at the AAPEX and/or SEMA tradeshows

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and will then promptly leave the United States.
3.

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Absent an ex parte temporary restraining order and seizure order, Defendants’

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importation, sale and/or offers to sell the ‘084 Infringing Products, ‘290 Infringing Products, and

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the ‘995 Infringing Products will result in immediate and irreparable injury to Omix in the form

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of loss of control over its valuable intellectual property rights, loss of consumer goodwill, and

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interference with Omix’s ability to exploit the Omix Patents. Further, because Defendants have

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no presence in the United States, it may be difficult or impossible for Omix to recover a money

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judgment against any of the Defendants.
4.

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The harm to Omix in denying the requested temporary restraining order and

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seizure order outweighs the harm to the legitimate interests of Defendants from granting such

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relief.

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5.

The public interest weighs in favor of granting Omix the requested temporary

restraining order and seizure order.
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Case 2:16-cv-02527-GMN-CWH Document 4 Filed 11/01/16 Page 4 of 6

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6.

The ‘084 Infringing Products, ‘290 Infringing Products, and ‘995 Infringing

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Products and materials evidencing Defendants’ infringements alleged in the Complaint are in

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Defendants’ possession at the AAPEX and/or SEMA tradeshows currently taking place in Las

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Vegas, Nevada, but these materials would likely be destroyed, moved, hidden or otherwise made

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inaccessible to the Court if Omix were to proceed on notice to Defendants.

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TEMPORARY RESTRAINING ORDER
IT IS THEREFORE ORDERED that, pending a decision by the Court on Omix’s

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application for a preliminary injunction, the ‘084 Defendants and their officers, agents, servants,

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employees and attorneys, and all other persons acting in active concert or participation with any

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of them, are hereby immediately, temporarily restrained from infringing the ‘084 Patent at the

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8363 West Sunset Road, Suite 200
Las Vegas, Nevada 89113-2210

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AAPEX tradeshow in Las Vegas, Nevada from November 1-3, 2016, and the SEMA tradeshow

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in Las Vegas, Nevada from November 1-4, 2016. Specifically, the ‘084 Defendants are hereby

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temporarily restrained from making, using, selling, offering to sell, and importing into the United

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States footwear designs covered by U.S. Patent No. US 9,145,084 B2 and colorable imitations

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thereof. In addition, the ‘084 Defendants are hereby temporarily restrained from transferring,

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moving, returning, destroying or otherwise disposing of any ‘084 Infringing Products except

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pursuant to the below Seizure Order.

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IT IS FURTHER ORDERED that, pending a decision by the Court on Omix’s

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application for a preliminary injunction, the ‘995 Defendants and their officers, agents, servants,

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employees and attorneys, and all other persons acting in active concert or participation with any

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of them, are hereby immediately, temporarily restrained from infringing the ‘995 Patent at the

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AAPEX tradeshow in Las Vegas, Nevada from November 1-3, 2016, and the SEMA tradeshow

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in Las Vegas, Nevada from November 1-4, 2016. Specifically, the ‘995 Defendants are hereby

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temporarily restrained from making, using, selling, offering to sell, and importing into the United

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States footwear designs covered by U.S. Patent No. US D749,995 S and colorable imitations

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thereof. In addition, the ‘995 Defendants are hereby temporarily restrained from transferring,

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moving, returning, destroying or otherwise disposing of any ‘995 Infringing Products except

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pursuant to the below Seizure Order.
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Case 2:16-cv-02527-GMN-CWH Document 4 Filed 11/01/16 Page 5 of 6

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IT IS FURTHER ORDERED that, pending a decision by the Court on Omix’s

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application for a preliminary injunction, Defendant Unity and its officers, agents, servants,

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employees and attorneys, and all other persons acting in active concert or participation with any

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of them, are hereby immediately, temporarily restrained from infringing the ‘290 Patent at the

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SEMA tradeshow in Las Vegas, Nevada from November 1-4, 2016. Specifically, Defendant

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Unity is hereby temporarily restrained from making, using, selling, offering to sell, and

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importing into the United States footwear designs covered by U.S. Patent No. US D692,290 S

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and colorable imitations thereof. In addition, Defendant Unity is hereby temporarily restrained

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from transferring, moving, returning, destroying or otherwise disposing of any ‘290 Infringing

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8363 West Sunset Road, Suite 200
Las Vegas, Nevada 89113-2210

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Products except pursuant to the below Seizure Order.
SEIZURE ORDER

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IT IS FURTHER ORDERED that Defendants’ ‘084 Infringing Products, ‘290 Infringing

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Products, and ‘995 Infringing Products, records (including computers and electronic evidence) of

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Defendants’ sales and offers to sell infringing products, and Defendants’ promotional display(s),

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sales equipment, materials used to facilitate Defendants’ infringements, catalogues and other

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marketing materials, and tooling (collectively, “Materials”) shall be seized by the United States

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Marshals Service, assisted by one or more attorneys or representatives of Omix, at the booths

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rented or occupied by Defendants at the AAPEX tradeshow in Las Vegas, Nevada from

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November 1-3, 2016, and the SEMA tradeshow in Las Vegas, Nevada from November 1-4,

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2016. The ‘084 Infringing Products, ‘290 Infringing Products, and ‘995 Infringing Products that

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the United States Marshals shall seize include SKU numbers SKU V-W21 and SKU UT-B101. If

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Omix identifies more infringing products, they can petition the Court to amend this Order. The

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Defendants shall destroy their inventory of Materials at Omix’s election.

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The United States Marshals Service may use all reasonable force in conducting the

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seizure and may open doors, locks, boxes, brief cases, and containers of any type or nature to

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locate and identify Materials to be seized. Attorneys and other representatives of Omix shall

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accompany the United States Marshals Service during the seizure to identify the Materials to be

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seized. Omix’s counsel shall itemize and take possession of the seized Materials, provide a copy
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Case 2:16-cv-02527-GMN-CWH Document 4 Filed 11/01/16 Page 6 of 6

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of the inventory to the United States Marshals Service, and file the inventory with the Court. In

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addition, Omix’s counsel may record the contents of Defendants’ booth and Materials by

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photographic and/or videographic means during the seizure action. The United States Marshals

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Service shall not retain custody of seized Materials. Omix agrees to indemnify the United States

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Marshals Service and hold it harmless from any suit, claim, cause of action, damage, loss, or

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injury arising from the execution of the seizure described in this Order.

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IT IS FURTHER ORDERED that the U.S. Customs and Border Protection seize any ‘084

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Infringing Products, ‘290 Infringing Products, and ‘995 Infringing Products coming into the

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United States.
IT IS FURTHER ORDERED that this Order and the Summons and Complaint must be

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8363 West Sunset Road, Suite 200
Las Vegas, Nevada 89113-2210

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served upon Defendants, if found, at the time of the seizure, and by other means reasonably

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calculated to give Defendants notice of this action.

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IT IS FURTHER ORDERED that, Omix shall deposit $10,000.00 with the Clerk of the

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Court as security for this order. To the extent Defendants believe that additional security is

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necessary pursuant to Rule 65(c), Fed. R. Civ. P., Defendants shall file an application to the Court

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and provide notice to counsel for Omix by 3:00 p.m. on Monday, November 7, 2016.

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

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November 10, 2016, at 11:30 a.m., in Courtroom 7D, before the Honorable Gloria M.

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Navarro, United States District Judge. Defendants shall file and serve any opposition to

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Omix’s motion for a preliminary injunction on or before 3:00 p.m. on Tuesday, November 8,

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2016.

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SIGNED AND ENTERED this ____ day of November, 2016.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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