ABC v. DEF
Filing
38
FINAL DEFAULT JUDGMENT AND PERMANENT INJUNCTION ORDER: This matter comes before the Court by motion filed by Plaintiff for the entry of final judgment and permanent injunction by default against Defaulting Defendants for Defaulting Defendants' ; trademark infringement and trademark counterfeiting claims arising out of Defaulting Defendants' unauthorized use of Plaintiff's Fin-Gears Marks, without limitation, in their manufacturing, importing, exporting, advertising, marketing, promoting, distributing, displaying or offering for sale and/or selling and/or sale of Infringing and/or Counterfeit Products. Where a defined term is referenced herein and not defined herein, the defined term should be understood as it is defin ed in the Glossary. ORDERED, ADJUDGED AND DECREED that judgment is granted in favor of Plaintiff as to the first and second causes of action pleaded in the Complaint (trademark counterfeiting and trademark infringement). IT IS FURTHER ORDERED , ADJUDGED AND DECREED that because it would serve the compensatory and punitive purposes of the Lanham Act's prohibitions on trademark counterfeiting and infringement, and because Plaintiff has sufficiently set forth the basis for the statutor y damages requested in its Motion for Default Judgment, the Court awards Plaintiff twenty-five thousand Dollars ($25,000) ("Defaulting Defendants' Individual Damages Award") in statutory damages against each of the Ten (10) Def aulting Defendants pursuant to 15 U.S.C. § 1117(c) for a total of two hundred and fifty thousand Dollars ($250,000) ("Defaulting Defendants' Collective Damages Award"), as well as post-judgment interest at the statutory ra te set forth in 28 U.S.C. § 1961(a). IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court releases the Five Thousand U.S. Dollar ($5,000.00) security bond that Plaintiff submitted in connection with this action to counsel for Plai ntiff, Epstein Drangel, LLP, 60 East 42nd Street, Suite 2520, New York, NY 10165. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Court shall retain jurisdiction over this matter and the parties in order to construe and enforce this Order. (Signed by Judge Ronnie Abrams on 1/10/2022) (ate) Transmission to Finance Unit (Cashiers) for processing.
Case 1:21-cv-00329-RA Document 38 Filed 01/10/22 Page 1 of 8
USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 01/10/2022
Jason M. Drangel (JD 7204)
jdrangel@ipcounselors.com
Ashly E. Sands (AS 7715)
asands@ipcounselors.com
Danielle (Yamali) Futterman (DY 4228)
dfutterman@ipcounselors.com
EPSTEIN DRANGEL LLP
60 East 42nd Street, Suite 2520
New York, NY 10165
Telephone:
(212) 292-5390
Facsimile:
(212) 292-5391
Attorneys for Plaintiff
FIN-GEARS, LLC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FIN-GEARS, LLC,
Plaintiff
v.
BESTMARKET4U365, BOQQINGYW23, FOASH83, HOUROUGS, ICHAMOU, ONEDAY2YOU,
QIANYI-INC, RCDIGITAL, UKBEST_BASKET, and
WINGOMALL18,
Defendants
CIVIL ACTION NO.
21-cv-0329 (RA)
[rel. 21-cv-0330; 21-cv-0331]
FINAL DEFAULT JUDGMENT
AND PERMANENT
INJUNCTION ORDER
Case 1:21-cv-00329-RA Document 38 Filed 01/10/22 Page 2 of 8
GLOSSARY
Term
Definition
Docket Entry
Number
N/A
Defendants
bestmarket4u365, boqqingyw23, foash-83, hourougs,
ichamou,
oneday2you,
qianyi-inc,
rcdigital,
ukbest_basket, and wingomall18
N/A
Defaulting
Defendants
bestmarket4u365, boqqingyw23, foash-83, hourougs,
ichamou,
oneday2you,
qianyi-inc,
rcdigital,
ukbest_basket and wingomall18
eBay.com, a San Jose, California-based online
marketplace and e-commerce platform owned by eBay
Inc., a Delaware corporation, that allows manufacturers
and other third-party merchants, like Defendants, to
advertise, distribute, offer for sale and/or sell in what it
characterizes as either auction-style or fixed-price
formats and ship their retail products, which, upon
information and belief, originate from China, among
other locations, directly to consumers worldwide and
specifically to consumers residing in the U.S., including
in New York
Order to Seal File entered on January 14, 2021
Plaintiff’s Complaint filed on January 14, 2021
Plaintiff’s Ex Parte Application for: 1) a temporary
restraining order; 2) an order restraining Merchant
Storefronts (as defined infra) and Defendants’ Assets
(as defined infra) with the Financial Institutions (as
defined infra); 3) an order to show cause why a
preliminary injunction should not issue; 4) an order
authorizing bifurcated and alternative service and 5) an
order authorizing expedited discovery filed on January
14, 2021
Declaration of Denys Okhrimenko in Support of
Plaintiff’s Application
Declaration of Jason M. Drangel in Support of
Plaintiff’s Application
N/A
Plaintiff or FIN- FIN-GEARS, LLC
GEARS
eBay
Sealing Order
Complaint
Application
Okhrimenko
Dec.
Drangel Dec.
i
N/A
Dkt. 1
Dkt. 6
Dkts. 9-12
N/A
Dkt. 12
Case 1:21-cv-00329-RA Document 38 Filed 01/10/22 Page 3 of 8
TRO
1) Temporary Restraining Order; 2) Order Restraining
Merchant Storefronts and Defendants’ Assets with the
Financial Institutions; 3) Order to Show Cause Why a
Preliminary Injunction Should Not Issue; 4) Order
Authorizing Bifurcated and Alternative Service; and 5)
Order Authorizing Expedited Discovery entered on
January 15, 2021
N/A
PI Show Cause
Hearing
PI Order
User Account(s)
N/A
Fin-Gears
Products
February 4, 2021 hearing to show cause why a
preliminary injunction should not issue
February 4, 2021 Preliminary Injunction Order
Any and all websites and any and all accounts with
online marketplace platforms such as eBay, as well as
any and all as yet undiscovered accounts with additional
online marketplace platforms held by or associated with
Defendants, their respective officers, employees,
agents, servants and all persons in active concert or
participation with any of them
Any and all User Accounts through which Defendants,
their respective officers, employees, agents, servants
and all persons in active concert or participation with
any of them operate storefronts to manufacture, import,
export, advertise, market, promote, distribute, display,
offer for sale, sell and/or otherwise deal in Counterfeit
Products, which are held by or associated with
Defendants, their respective officers, employees,
agents, servants and all persons in active concert or
participation with any of them
A multipurpose fidget made of magnetic rings, which
are used for tricks, games and stress relief
Fin-Gears
Marks
U.S. Trademark Registration Nos.: 6,214,511 for “FINGEARS” for goods in Class 28; and 6,214,512 for “
Merchant
Storefronts
Fin-Gears
Works
Infringing
and/or
Counterfeit
Products
” for goods in Class 28
U.S. Copyright Registration Nos.: VA 2-213-715,
covering the Fin-Gears Instruction Manual; and VA 2213-807, covering the Fin-Gears Packaging
Products bearing or used in connection with the FinGears Marks, and/or products in packaging and/or
containing labels and/or hang tags bearing the Fin-Gears
Marks, and/or bearing or used in connection with marks
and/or artwork that are confusingly similar or
substantially identical to the Fin-Gears Marks and/or
products that are confusingly similar or substantially
identical to the Fin-Gears Products
ii
Dkt. 4
N/A
N/A
N/A
N/A
N/A
N/A
Case 1:21-cv-00329-RA Document 38 Filed 01/10/22 Page 4 of 8
Defendants’
Assets
Defendants’
Financial
Accounts
Financial
Institutions
Third Party
Service
Providers
Defendants’
Frozen Assets
Plaintiff’s
Motion for
Default
Judgment
Scully Aff.
Any and all money, securities or other property or assets
of Defendants (whether said assets are located in the
U.S. or abroad)
Any and all financial accounts associated with or
utilized by any Defendants or any Defendants’ User
Accounts or Merchant Storefront(s) (whether said
account is located in the U.S. or abroad)
Any and all banks, financial institutions, credit card
companies and payment processing agencies, such as
PayPal Inc. (“PayPal”), Payoneer Inc. (“Payoneer”) and
PingPong Global Solutions, Inc. (“PingPong”) and other
companies or agencies that engage in the processing or
transfer of money and/or real or personal property of
Defendants
Online marketplace platforms, including, without
limitation, those owned and operated, directly or
indirectly by eBay, as well as any and all as yet
undiscovered online marketplace platforms and/or
entities through which Defendants, their respective
officers, employees, agents, servants and all persons in
active concert or participation with any of them
manufacture, import, export, advertise, market,
promote, distribute, offer for sale, sell and/or otherwise
deal in Counterfeit Products which are hereinafter
identified as a result of any order entered in this action,
or otherwise
Defendants’ Assets from Defendants’ Financial
Accounts that were and/or are attached and frozen or
restrained pursuant to the TRO and/or PI Order, or
which are attached and frozen or restrained pursuant to
any future order entered by the Court in this Action
Plaintiff’s Motion for Default Judgment and a
Permanent Injunction Against Defaulting Defendants
filed on June 4, 2021
Affidavit by Brieanne Scully in Support of Plaintiff’s
Motion for Default Judgment
iii
N/A
N/A
N/A
N/A
N/A
TBD
TBD
Case 1:21-cv-00329-RA Document 38 Filed 01/10/22 Page 5 of 8
This matter comes before the Court by motion filed by Plaintiff for the entry of final
judgment and permanent injunction by default against Defaulting Defendants for Defaulting
Defendants’ trademark infringement and trademark counterfeiting claims arising out of Defaulting
Defendants’ unauthorized use of Plaintiff’s Fin-Gears Marks, without limitation, in their
manufacturing, importing, exporting, advertising, marketing, promoting, distributing, displaying
or offering for sale and/or selling and/or sale of Infringing and/or Counterfeit Products. 1
Having considered the Memorandum of Law and Affidavit of Brieanne Scully in support
of Plaintiff’s Motion for Default Judgment and a Permanent Injunction Against Defaulting
Defendants, the Certificates of Service of the Summons and Complaint, the Certificate of the Clerk
of the Court stating that no answer has been filed in the instant action, and all other pleadings and
papers on file in this action, and for the reasons stated on the record at the December 10, 2021
hearing, it is hereby:
Defaulting Defendants’ Liability
1) ORDERED, ADJUDGED AND DECREED that judgment is granted in favor of Plaintiff as
to the first and second causes of action pleaded in the Complaint (trademark counterfeiting and
trademark infringement).
Damages Award
2) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that because it would serve the
compensatory and punitive purposes of the Lanham Act’s prohibitions on trademark
counterfeiting and infringement, and because Plaintiff has sufficiently set forth the basis for
the statutory damages requested in its Motion for Default Judgment, the Court awards Plaintiff
twenty-five thousand Dollars ($25,000) (“Defaulting Defendants’ Individual Damages
Where a defined term is referenced herein and not defined herein, the defined term should be understood as it is
defined in the Glossary.
1
1
Case 1:21-cv-00329-RA Document 38 Filed 01/10/22 Page 6 of 8
Award”) in statutory damages against each of the Ten (10) Defaulting Defendants pursuant to
15 U.S.C. § 1117(c) for a total of two hundred and fifty thousand Dollars ($250,000)
(“Defaulting Defendants’ Collective Damages Award”), as well as post-judgment interest at
the statutory rate set forth in 28 U.S.C. § 1961(a).
Permanent Injunction
3) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defaulting Defendants,
their respective officers, agents, servants, employees, successors and assigns, and all persons
acting in concert with or under the direction of Defaulting Defendants (regardless of whether
located in the United States or abroad) who receive actual notice of this Order, are permanently
enjoined and restrained from:
A. manufacturing, importing, exporting, advertising, marketing, promoting, distributing,
displaying, offering for sale, selling and/or otherwise dealing in Infringing and/or
Counterfeit Products or any other products bearing one or more of the Fin-Gears Marks
and/or marks that are confusingly similar or substantially identical to the Fin-Gears
Marks;
B. directly or indirectly infringing in any manner any of Plaintiff’s Fin-Gears Marks;
C. using any reproduction, counterfeit, copy, or colorable imitation of Plaintiff’s FinGears Marks to identify any goods or services not authorized by Plaintiff;
D. using any of Plaintiff’s Fin-Gears Marks, or any other marks or artwork that are
confusingly similar or substantially identical to the Fin-Gears Marks on or in
connection with the manufacturing, importing, exporting, advertising, marketing,
promoting, distributing, displaying, offering for sale, selling and/or otherwise dealing
in the Infringing and/or Counterfeit Products;
2
Case 1:21-cv-00329-RA Document 38 Filed 01/10/22 Page 7 of 8
E. secreting, concealing, destroying, altering, selling off, transferring or otherwise
disposing of and/or dealing with: (i) Infringing and/or Counterfeit Products; (ii) any
computer files, data, business records, documents or any other records or evidence
relating to:
i. Defaulting Defendants’ User Accounts and/or Merchant Storefronts;
ii. Defaulting Defendants’ Assets; and
iii. the manufacture, importation, exportation, advertising, marketing, promotion,
distribution, display, offering for sale and/or sale of Infringing and/or
Counterfeit Products by Defaulting Defendants and by their respective officers,
employees, agents, servants and all persons in active concert or participation
with any of them; and
F. effecting assignments or transfers, forming new entities or associations, or creating
and/or utilizing any other platform, User Accounts, Merchant Storefronts or any other
means of importation, exportation, advertising, marketing, promotion, distribution,
display, offering for sale and/or sale of Infringing and/or Counterfeit Products for the
purposes of circumventing or otherwise avoiding the prohibitions set forth in this
Order.
4) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defaulting Defendants
must deliver up for destruction to Plaintiff any and all Infringing and/or Counterfeit Products
and any and all packaging, labels, tags, advertising and promotional materials and any other
materials in the possession, custody or control of Defaulting Defendants that infringe any of
Plaintiff’s trademarks including, without limitation, the Fin-Gears Marks, or bear any marks
3
Case 1:21-cv-00329-RA Document 38 Filed 01/10/22 Page 8 of 8
or artwork that are confusingly similar or substantially identical to the Fin-Gears Marks
pursuant to 15 U.S.C. § 1118.
Dissolution of Rule 62(a) Stay
5) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, as sufficient cause has
been shown, the 30-day automatic stay on enforcing Plaintiff’s judgment pursuant to Fed. R.
Civ. Pro. 62(a) is hereby dissolved.
Miscellaneous Relief
6) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any failure by Defaulting
Defendants to comply with the terms of this Order shall be deemed contempt of Court,
subjecting Defaulting Defendants to contempt remedies to be determined by the Court,
including fines and seizure of property.
7) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court releases the Five
Thousand U.S. Dollar ($5,000.00) security bond that Plaintiff submitted in connection with
this action to counsel for Plaintiff, Epstein Drangel, LLP, 60 East 42nd Street, Suite 2520, New
York, NY 10165.
8) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Court shall retain
jurisdiction over this matter and the parties in order to construe and enforce this Order.
SO ORDERED.
Date: January 10, 2022
New York, New York
_________________________________
HON. RONNIE ABRAMS
UNITED STATES DISTRICT JUDGE
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?