ABC v. DEF

Filing 16

PRELIMINARY INJUNCTION ORDER: The injunctive relief previously granted in the TRO shall remain in place through the pendency of this litigation, and issuing this Order is warranted under Federal Rule of Civil Procedure 65 and Section 34 of the Lanham Act. Accordingly, Defendants are hereby restrained and enjoined from engaging in any of the following acts or omissions pending the final hearing and determination of this action or until further order of the Court: All oth er provisions as further set forth in this order. Defendants are hereby given notice that they may be deemed to have actual notice of the terms of this Order and any act by them or anyone of them in violation of this Order may be considered and prosecuted as in contempt of this Court. The $5,000.00 bond posted by Plaintiff shall remain with the Court until a final disposition of this case or until this Order is terminated. This Order shall remain in effect during the pende ncy of this action, or until further order of the Court. Any Defendants that are subject to this Order may appear and move to dissolve or modify the Order on two (2) days' notice to Plaintiff or on shorter notice as set by the Court. (Signed by Judge J. Paul Oetken on 6/8/2021) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ALLSTAR MARKETING GROUP, LLC,
Plaintiff
v.
AKRONDH,
BABYBABY1314,
BAILIXI05,
BUYCHEAPCOCOS,
BUYCHEAPDOOR,
CATHERINE05, DHFUNNYS, DHGATECOUION,
ENDISDHGATE,
FACE_SHIELDS_WANG,
FACTORYSALECO,
GADSDENGATE,
GATEMALL,
JACK6666,
PANDORAGATE,
PHOENIXGATE, SIHUAI09, STORESROOMSUI,
TEEMWAY SUMMER TOYS, WAUKEGANGATE
and
ZXLCLOTHES15,
Defendants

CIVIL ACTION NO.
21-cv-3621 (JPO)

PRELIMINARY
INJUNCTION ORDER

GLOSSARY
Term
Plaintiff or Allstar
Defendants

Jay At Play
DHgate

Epstein Drangel
New York Address
Complaint
Application

De Marco Dec.
Drangel Dec.
Happy Nappers Marks

Happy Nappers Works

Definition
Allstar Marketing Group, LLC
akrondh, babybaby1314, bailixi05, buycheapcocos,
buycheapdoor, catherine05, dhfunnys, dhgatecouion,
endisdhgate,
face_shields_wang,
factorysaleco,
gadsdengate, gatemall, jack6666, pandoragate,
phoenixgate, sihuai09, storesroomsui, Teemway
summer toys, waukegangate and zxlclothes15
Jay At Play International Hong Kong Limited d/b/a Jay
At Play
Dunhuang Group d/b/a DHgate.com, an online
marketplace and e-commerce platform which allows
manufacturers, wholesalers and other third-party
merchants, like Defendants, to advertise, distribute,
offer for sale, sell and ship their wholesale and retail
products originating from China directly to consumers
worldwide and specifically to consumers residing in the
U.S., including New York
Epstein Drangel LLP, counsel for Plaintiff
244 Madison Ave, Suite 411, New York, New York
10016
Plaintiff’s Complaint
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
Declaration of Jennifer De Marco in Support of
Plaintiff’s Application
Declaration of Jason M. Drangel in Support of
Plaintiff’s Application
U.S. Trademark Registration Nos.: 6,102,208 for
“HAPPY NAPPERS” for goods in Class 20 and 24; and
3,998,335 for “HAPPY NAPPERS” for goods in Class
28
U.S. Copyright Reg. Nos.: VA 2-227-806 covering Shak
the Shark; VA 2-227-789 covering Arianna the White
Unicorn; VA 2-227-807 covering Duncan the Dragon;
VA 2-227-808 covering Lilly the Lady Bug; VA 2-227810 covering Monique the Pink Unicorn; VA 2-227-816
covering Kodiak the Grey Husky; VA 2-227-818
i

Happy Nappers
Products
Counterfeit Products

Infringing Listings
User Accounts

Merchant Storefronts

Defendants’ Assets
Defendants’ Financial
Accounts
Financial Institutions

covering Dusty the Yellow Dog; and VA 2-227-820
covering Charlotte the Pink Kitty
A soft plush pillow toy that when unzipped, expands into
a comfy sleep sack
Products bearing or used in connection with the Happy
Nappers Marks and/or Happy Nappers Works, and/or
products in packaging and/or containing labels and/or
hang tags bearing the Happy Nappers Marks and/or
Happy Nappers Works, and/or bearing or used in
connection with marks and/or artwork that are
confusingly or substantially similar to the Happy
Nappers Marks and/or Happy Nappers Works and/or
products that are identical or confusingly or
substantially similar to the Happy Nappers Products
Defendants’ listings for Counterfeit Products
Any and all websites and any and all accounts with
online marketplace platforms such as DHgate, 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
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
DHgate (e.g., DHpay.com), 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
ii

Third Party Service
Providers

Online platforms, including, without limitation, those
owned and operated, directly or indirectly by DHgate,
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

iii

WHERAS, Plaintiff having moved ex parte on April 23, 2021 against Defendants for the
following: 1) a temporary restraining order; 2) an order restraining Merchant Storefronts and
Defendants’ Assets with the Financial Institutions; 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;
WHEREAS, the Court entered an Order granting Plaintiff’s Application on May 4, 2021
(“TRO”) which ordered Defendants to appear on June 8, 2021 at 3:00 p.m. to show cause why a
preliminary injunction should not issue (“Show Cause Hearing”);
WHEREAS, on May 14, 2021, Plaintiff filed a request for modification and extension of
the TRO;
WHEREAS, on May 14, 2021, pursuant to the alternative methods of service authorized
by the TRO, Plaintiff served the Summons, Complaint, TRO, all papers filed in support of the
Application on each and every Defendant;
WHEREAS, on June 8, 2021 at 3:00 p.m., Plaintiff appeared at the Show Cause Hearing,
however, no Defendants appeared.
ORDER
1. The injunctive relief previously granted in the TRO shall remain in place through the
pendency of this litigation, and issuing this Order is warranted under Federal Rule of Civil
Procedure 65 and Section 34 of the Lanham Act.
a) Accordingly, Defendants are hereby restrained and enjoined from engaging in any of
the following acts or omissions pending the final hearing and determination of this
action or until further order of the Court:
i. manufacturing, importing, exporting, advertising, marketing, promoting,

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distributing, displaying, offering for sale, selling and/or otherwise dealing in
Counterfeit Products or any other products bearing the Happy Nappers Marks
and/or Happy Nappers Works and/or marks or works that are confusingly or
substantially similar to, identical to and constitute a counterfeiting and/or
infringement of the Happy Nappers Marks and/or Happy Nappers Works;
ii. directly or indirectly infringing in any manner Plaintiff’s Happy Nappers Marks
and/or Happy Nappers Works;
iii. using any reproduction, counterfeit, copy or colorable imitation of Plaintiff’s
Happy Nappers Marks and/or Happy Nappers Works to identify any goods or
services not authorized by Plaintiff;
iv. using Plaintiff’s Happy Nappers Marks and/or Happy Nappers Works or any
other marks or artwork that are confusingly or substantially similar to the Happy
Nappers Marks and/or Happy Nappers Works on or in connection with
Defendants’ manufacturing, importing, exporting, advertising, marketing,
promoting, distributing, displaying, offering for sale, selling and/or otherwise
dealing in Counterfeit Products;
v. using any false designation of origin or false description, or engaging in any
action which is likely to cause confusion, cause mistake and/or to deceive
members of the trade and/or the public as to the affiliation, connection or
association of any product manufactured, imported, exported, advertised,
marketed, promoted, distributed, displayed, offered for sale or sold by
Defendants with Plaintiff, and/or as to the origin, sponsorship or approval of
any product manufactured, imported, exported, advertised, marketed,

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promoted, distributed, displayed, offered for sale or sold by Defendants and
Defendants’ commercial activities and Plaintiff;
vi. secreting, concealing, destroying, altering, selling off, transferring or otherwise
disposing of and/or dealing with: (i) Counterfeit Products and/or (ii) any
computer files, data, business records, documents or any other records or
evidence relating to their User Accounts, Merchant Storefronts or Defendants’
Assets and the manufacture, importation, exportation, advertising, marketing,
promotion, distribution, display, offering for sale and/or sale of Counterfeit
Products;
vii. effecting assignments or transfers, forming new entities or associations, or
creating and/or utilizing any other platform, User Account, Merchant Storefront
or any other means of importation, exportation, advertising, marketing,
promotion, distribution, display, offering for sale and/or sale of Counterfeit
Products for the purposes of circumventing or otherwise avoiding the
prohibitions set forth in this Order; and
viii. knowingly instructing, aiding or abetting any other person or business entity in
engaging in any of the activities referred to in subparagraphs 1(a)(i) through
1(a)(vii) above and 1(b)(i) through 1(b)(ii) and 1(c)(i) below.
b) Accordingly, the Third Party Service Providers and Financial Institutions are hereby
restrained and enjoined from engaging in any of the following acts or omissions
pending the final hearing and determination of this action or until further order of the
Court:
i. secreting, concealing, transferring, disposing of, withdrawing, encumbering or

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paying Defendants’ Assets from or to Defendants’ Financial Accounts until
further ordered by this Court;
ii. secreting, concealing, destroying, altering, selling off, transferring or otherwise
disposing of and/or dealing with any computer files, data, business records,
documents or any other records or evidence relating to the Defendants’ User
Accounts, Merchant Storefronts, Defendants’ Assets and the manufacture,
importation, exportation, advertising, marketing, promotion, distribution,
display, offering for sale and/or sale of Counterfeit Products; and
iii. knowingly instructing, aiding, or abetting any other person or business entity in
engaging in any of the activities referred to in subparagraphs 1(a)(i) through
1(a)(vii) and 1(b)(i) through 1(b)(ii) above.
c) Accordingly, the Third Party Service Providers are hereby restrained and enjoined from
engaging in any of the following acts or omissions pending the final hearing and
determination of this action or until further order of the Court:
i. providing services to Defendants, Defendants’ User Accounts and Defendants’
Merchant Storefronts, including, without limitation, continued operation of
Defendants’ User Accounts and Merchant Storefronts;
ii. secreting, concealing, destroying, altering, selling off, transferring or otherwise
disposing of and/or dealing with any computer files, data, business records,
documents or any other records or evidence relating to the Defendants’ User
Accounts, Merchant Storefronts, Defendants’ Assets and the manufacture,
importation, exportation, advertising, marketing, promotion, distribution,
display, offering for sale and/or sale of Counterfeit Products; and

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iii. knowingly instructing, aiding, or abetting any other person or business entity in
engaging in any of the activities referred to in subparagraphs 1(a)(i) through
1(a)(vii), 1(b)(i) through 1(b)(ii) and 1(c)(i) through 1(c)(ii) above.
2. As sufficient cause has been shown, the asset restraint granted in the TRO shall remain in
place through the pendency of this litigation, including that:
a) within seven (7) days of receipt of notice of this Order, any newly discovered Financial
Institutions who are served with this Order shall locate and attach Defendants’
Financial Accounts, shall provide written confirmation of such attachment to Plaintiff’s
counsel and provide Plaintiff’s counsel with a summary report containing account
details for any and all such accounts, which shall include, at a minimum, identifying
information for Defendants and Defendants’ User Accounts, contact information for
Defendants (including mailing addresses and e-mail addresses), account numbers and
account balances for any and all of Defendants’ Financial Accounts.
3. As sufficient cause has been shown, the expedited discovery previously granted in the TRO
shall remain in place through the pendency of this litigation, including that:
a) Plaintiff may serve interrogatories pursuant to Rules 26 and 33 of the Federal Rules of
Civil Procedure as well as Local Civil Rule 33.3 of the Local Rules for the Southern
and Eastern Districts of New York and Defendants who are served with this Order shall
provide written responses under oath to such interrogatories within fourteen (14) days
of service to Plaintiff’s counsel.
b) Plaintiff may serve requests for the production of documents pursuant to Rules 26 and
34 of the Federal Rules of Civil Procedure and Defendants who are served with this
Order, their respective officers, employees, agents, servants and attorneys and all

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persons in active concert or participation with any of them who receive actual notice of
this Order shall produce all documents responsive to such requests within fourteen (14)
days of service to Plaintiff’s counsel.
c) Within fourteen (14) days after receiving notice of this Order, all Financial Institutions
who receive service of this Order shall provide Plaintiff’s counsel with all documents
and records in their possession, custody or control (whether located in the U.S. or
abroad), relating to any and all of Defendants’ Financial Accounts, User Accounts and
Merchant Storefronts, including, but not limited to, documents and records relating to:
i.

account numbers;

ii.

current account balances;

iii.

any and all identifying information for Defendants and Defendants' User Accounts,
including names, addresses and contact information;

iv.

any and all account opening documents and records, including, but not limited to,
account applications, signature cards, identification documents, and if a business
entity, any and all business documents provided for the opening of each and every
of Defendants’ Financial Accounts;

v.

any and all deposits and withdrawal during the previous year from each and every
of Defendants’ Financial Accounts and any and all supporting documentation,
including, but not limited to, deposit slips, withdrawal slips, cancelled checks and
account statements;

vi.

any and all wire transfers into each and every of Defendants’ Financial Accounts
during the previous year, including, but not limited to, documents sufficient to show
the identity of the destination of the transferred funds, the identity of the

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beneficiary’s bank and the beneficiary’s account number;
vii.

any and all User Accounts and account details, including, without limitation,
identifying information and account numbers for any and all User Accounts that
Defendants have ever had and/or currently maintain;

viii.

the identities, location and contact information, including any and all e-mail
addresses, of Defendants, their respective officers, employees, agents, servants and
all persons in active concert or participation with any of them;

ix.

the nature of Defendants’ businesses and operations, methods of payment, methods
for accepting payment and any and all financial information, including, but not
limited to, information associated with Defendants’ User Accounts, a full
accounting of Defendants’ sales history and listing history under such accounts,
and Defendants’ Financial Accounts associated with Defendants’ User Accounts;
and

x.

Defendants’ manufacturing, importing, exporting, advertising, marketing,
promoting, distributing, displaying, offering for sale and/or selling of Counterfeit
Products, or any other products bearing the Happy Nappers Marks and/or Happy
Nappers Works and/or marks or artwork that are confusingly or substantially
similar to, identical to and constitute a counterfeiting and/or infringement of the
Happy Nappers Marks and Happy Nappers Works.

d) Within fourteen (14) days of receipt of service of this Order, the Third Party Service Providers
shall provide to Plaintiff’s counsel all documents and records in its possession, custody or
control (whether located in the U.S. or abroad) relating to Defendants’ User Accounts and

7

Defendants’ Merchant Storefronts, including, but not limited to, documents and records
relating to:
i.

any and all User Accounts and Defendants’ Merchant Storefronts and account
details, including, without limitation, identifying information and account numbers
for any and all User Accounts and Defendants’ Merchant Storefronts that
Defendants have ever had and/or currently maintain with the Third Party Service
Providers;

ii.

the identities, location and contact information, including any and all e-mail
addresses of Defendants;

iii.

the nature of Defendants’ businesses and operations, methods of payment, methods
for accepting payment and any and all financial information, including, but not
limited to, information associated with Defendants’ User Accounts and
Defendants’ Merchant Storefronts, a full accounting of Defendants’ sales history
and listing history under such accounts and Defendants’ Financial Accounts with
any and all Financial Institutions associated with Defendants’ User Accounts and
Defendants’ Merchant Storefronts; and

iv.

Defendants’ manufacturing, importing, exporting, advertising, marketing,
promoting, distributing, displaying, offering for sale and/or selling of Counterfeit
Products, or any other products bearing the Happy Nappers Marks and/or Happy
Nappers Works and/or marks or artwork that are confusingly or substantially
similar to, identical to and constitute an infringement of the Happy Nappers Marks
and/or Happy Nappers Works.

4. As sufficient cause has been shown, and pursuant to FRCP 4(f)(3), service may be made

8

on, and shall be deemed effective as to Defendants if it is completed by one of the following
means:
a) delivery of: (i) PDF copies of this Order, or (ii) a link to a secure website (including
NutStore, a large mail link created through Rmail.com and via website publication
through a specific page dedicated to this Lawsuit accessible through
ipcounselorslawsuit.com) where each Defendant will be able to download PDF
copies of this Order to Defendants’ e-mail addresses to be determined after having
been identified by DHgate pursuant to Paragraph V(C) of the TRO; or
b) delivery of a message to Defendants through the system for communications
established by the Third Party Service Providers on their respective platforms,
notifying Defendants that an action has been filed against them in this Court and
providing a link to a secure website (such as NutStore or a large mail link created
through Rmail.com) where each Defendant will be able to download PDF copies
of this Order.
5. As sufficient cause has been shown, that such alternative service by electronic means
ordered in the TRO and herein shall be deemed effective as to Defendants, Third Party
Service Providers and Financial Institutions through the pendency of this action.
6. As sufficient cause has been shown, service of this Order shall be made on and deemed
effective as to the Third Party Service Providers and Financial Institutions if it is completed
by the following means:
a) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where
PayPal Inc. will be able to download a PDF copy of this Order via electronic mail
to PayPal Legal Specialist at [e-mail];

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b) delivery of (i) a PDF copy of this Order, or (ii) a link to a secure website where
DHgate (including DHPay.com) will be able to download a PDF copy of this Order
via electronic mail to Ms. Emily Zhou, Intellectual Property Management, Trust
and Safety Department, DHgate at [e-mail];
c) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where
Payoneer Inc. will be able to download a PDF copy of this Order via electronic mail
to

Payoneer

Inc.’s

Customer

Service

Management

at

[e-mail] and Edward Tulin, counsel for Payoneer
Inc., at [e-mail]; and
d) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where
PingPong Global Solutions Inc. will be able to download a PDF copy of this Order
via electronic mail to PingPong Global Solutions Inc.’s Legal Department
[e-mail].
7. Defendants are hereby given notice that they may be deemed to have actual notice of the
terms of this Order and any act by them or anyone of them in violation of this Order may
be considered and prosecuted as in contempt of this Court.
8. The $5,000.00 bond posted by Plaintiff shall remain with the Court until a final disposition
of this case or until this Order is terminated.
9. This Order shall remain in effect during the pendency of this action, or until further order
of the Court.
10. Any Defendants that are subject to this Order may appear and move to dissolve or modify
the Order on two (2) days’ notice to Plaintiff or on shorter notice as set by the Court.

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SO ORDERED.
SIGNED this 8th day of June, 2021, at 3:15 p.m.
New York, New York
_________________________________
HON. J. PAUL OETKEN

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