HVN Clothing, Inc. et al v. Lomeway E-Commerce (Luxembourg) Limited

Filing 24

TEMPORARY RESTRAINING ORDER, IT IS HEREBY ORDERED, pursuant to Fed. R. Civ. P. 65, that a temporary restraining order shall be immediately entered as described herein. IT IS HEREBY ORDERED, sufficient cause being shown, and based upon the foregoing findings of fact and conclusions of law, that Defendant and its officers, agents, servants, employees, attorneys and all other persons in active concert or participation with Defendant, are hereby restrained and enjoined from engaging in any of the following acts or omissions pending the hearing and determination of the Motion or further order of the Court: using the registered HVN Mark for, or in connection with the manufacture, distribution, advertising, promotion, offering for sale, or sale of hats, kimonos, pants, robes, scarves, shorts, sleepwear, swimwear or womens clothing, namely shirts, dresses, skirts and blouses; and (b)using, displaying, reproducing or copying the copyrighted HVN CherryPrint on, or in connection with the manufacture, distribution, advertising,promotion, offering for sale, or sale of any goods. IT IS FURTHER ORDERED, pursuant to Fed. R. Civ. P. 65(c), that Plaintiffs shall deposit with the Court the sum of ten thousand dollars ($10,000.00), in cash, cashiers check, or surety bond, as security, which amount is deemed adequate for the payment of such damages as any person may be entitled to recover as a result of wrongful restraint hereunder. IT IS FURTHER ORDERED that service of this Order, the Motion, and all supporting papers by email upon the Defendants legal department ([e-mail]) and its outside counsel Dr. Jorg Brettschneider, LL.B. ([e-mail]), with a hard copy via recognized international express courier to Defendants principal office at Lomeway E-Commerce (Luxembourg) Limited, 29 Boulevard Prince Henri, L-1724, Luxembourg, on or before January 11, 2022, shall constitute good and sufficient service. Plaintiffs shall file proof of such service by January 12, 2022. IT IS FURTHER ORDERED that a hearing shall be held on January 24, 2022, at 4:00 p.m., at which Plaintiffs may present their arguments in support of their request for issuance of a preliminary injunction. At such time, Defendant may also be heard as to opposition to Plaintiffs' Application. The hearing will take place remotely by telephone in accordance with Rule 2(B) of the Court's Individual Rules and Practices in Civil Cases, available at https://nysd.uscourts.gov/hon-jesse-m-furman. The parties should join the conference by calling the Court's dedicated conference line at [phone] and using access code 542-1540, followed by the pound (#) key. (Members of the public and press may also attend using the same dial-in information; they will not be allowed to speak during the conference.) Counsel should review and comply with the rules regarding teleconferences in the Court's Individual Rules and Practices in Civil Cases, including Rule 2(B)(i), which requires the parties, no later than 24 hours before the conference, to send an email to the Court with a list of counsel who may speak during the teleconference and the telephone numbers from which counsel expect to join the call. IT IS FURTHER ORDERED that opposing papers, if any, shall be filed and served by January 17, 2022 (notwithstanding the fact that it is a Court holiday). Any reply shall be filed and served by January 20, 2022. This Temporary Restraining Order is entered at 11:00 a.m. on January 10, 2022, and shall remain in effect for fourteen (14) days. SO ORDERED. Motions terminated: #11 MOTION for Temporary Restraining Order . MOTION for Preliminary Injunction . filed by Harley Viera-Newton, HVN Clothing, Inc. (Signed by Judge Jesse M. Furman on 1/10/22) (yv) Transmission to Finance Unit (Cashiers) for processing. Modified on 1/11/2022 (yv).

Case 1:22-cv-00027-JMF Document 24 Filed 01/10/22 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HVN CLOTHING, INC.; and
HARLEY VIERA-NEWTON,
Plaintiffs,
No. 22 CV 0027

-vLOMEWAY E-COMMERCE (LUXEMBOURG)
LIMITED d/b/a ZAFUL;
Defendant.

TEMPORARY RESTRAINING ORDER
UPON CONSIDERATION OF the Motion for Temporary Restraining Order and
Preliminary Injunction, (ECF Doc. 11) (the “Motion”), filed on January 6, 2022 by Plaintiffs
HVN Clothing, Inc. and Harley Viera-Newton (together, “Plaintiffs”); the argument, declarations
and other evidence submitted in support of the Motion; and all other papers and proceedings
heretofore had herein;
IT IS HEREBY ORDERED, pursuant to Fed. R. Civ. P. 65, that a temporary restraining
order shall be immediately entered as described herein.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1.

This Court has jurisdiction over the subject matter of this action pursuant to 15

U.S.C. §§ 1121, 1331, and 1338(a); pursuant to 28 U.S.C. 1338(b); and pursuant to 28 U.S.C. §
1367(a).
2.

Plaintiff HVN Clothing, Inc. is the owner of the U.S. trademark “HVN”, U.S.

Reg. No. 5,517,188, in International Class 25, which covers hats, kimonos, pants, robes, scarves,
shorts, sleepwear, swimwear, and women’s clothing, namely shirts, dresses, skirts, and blouses
(the “HVN Mark”).

Case 1:22-cv-00027-JMF Document 24 Filed 01/10/22 Page 2 of 4

3.

Plaintiff Harley Viera-Newton is the owner of the registered copyright in a work

registered with the U.S. Copyright Office in May 2017 and assigned Reg. No. VA 2-073-125
(the “HVN Cherry Print”).
4.

Defendant

Lomeway

E-Commerce

(Luxembourg)

Limited

d/b/a

Zaful

(“Defendant”) offered for sale, sold, and distributed clothing bearing the HVN Mark and the
HVN Cherry Print to consumers in the United States and in the State of New York.
5.

No Plaintiff authorized the Defendant to use, copy, reproduce, display, offer for

sale, sell, or distribute goods bearing the HVN Mark or the HVN Cherry Print.
6.

Plaintiffs are likely to prevail at trial on their claims for copyright infringement,

trademark infringement, and trademark counterfeiting because Defendant sold counterfeit
versions of the HVN Mark and sold apparel that copies the HVN Cherry Print.
7.

As a result of Defendant’s misconduct, Plaintiffs are likely to suffer irreparable

harm unless a temporary restraining order is entered, because (a) Defendant has offered for sale
and sold counterfeit HVN goods that infringe Plaintiffs’ trademark rights and copyright; and
because (b) Plaintiffs have demonstrated a well-founded fear that, unless Defendant’s conduct is
enjoined, additional infringing and counterfeit products may appear in the marketplace, and that
consumers will be misled, confused and disappointed by those infringing and counterfeit
products, resulting in injury to Plaintiffs’ reputation.
8.

The balance of harms and the public interest favor issuance of a temporary

restraining order because a temporary restraining order will protect the Plaintiffs and the public
against harms caused by the Defendants’ conduct, and because the benefit of the restraint
outweighs the Defendant’s interest in continuing to profit from its illegal and infringing conduct.
9.

Service on Defendant and Defendant’s counsel via email, with a copy by

recognized international express courier to the Defendant’s principal office, is reasonably
calculated to result in proper notice to the Defendant.

Case 1:22-cv-00027-JMF Document 24 Filed 01/10/22 Page 3 of 4

TEMPORARY RESTRAINING ORDER
10.

IT IS HEREBY ORDERED, sufficient cause being shown, and based upon the

foregoing findings of fact and conclusions of law, that Defendant and its officers, agents,
servants, employees, attorneys and all other persons in active concert or participation with
Defendant, are hereby restrained and enjoined from engaging in any of the following acts or
omissions pending the hearing and determination of the Motion or further order of the Court:
(a)

using the registered HVN Mark for, or in connection with the
manufacture, distribution, advertising, promotion, offering for sale, or sale
of hats, kimonos, pants, robes, scarves, shorts, sleepwear, swimwear or
women’s clothing, namely shirts, dresses, skirts and blouses; and

(b)

using, displaying, reproducing or copying the copyrighted HVN Cherry
Print on, or in connection with the manufacture, distribution, advertising,
promotion, offering for sale, or sale of any goods.
SECURITY

11.

IT IS FURTHER ORDERED, pursuant to Fed. R. Civ. P. 65(c), that Plaintiffs

shall deposit with the Court the sum of ten thousand dollars ($10,000.00), in cash, cashier’s
check, or surety bond, as security, which amount is deemed adequate for the payment of such
damages as any person may be entitled to recover as a result of wrongful restraint hereunder.
NOTICE TO THE RESTRAINED PARTY
12.

IT IS FURTHER ORDERED that service of this Order, the Motion, and all

supporting papers by email upon the Defendant’s legal department ([e-mail]) and its
outside counsel Dr. Jorg Brettschneider, LL.B. ([e-mail]), with a hard copy via
recognized international express courier to Defendant’s principal office at Lomeway ECommerce (Luxembourg) Limited, 29 Boulevard Prince Henri, L-1724, Luxembourg, on or

Case 1:22-cv-00027-JMF Document 24 Filed 01/10/22 Page 4 of 4

before January 11, 2022, shall constitute good and sufficient service. Plaintiffs shall file proof
of such service by January 12, 2022.
PRELIMINARY INJUNCTION HEARING
13.

IT IS FURTHER ORDERED that a hearing shall be held on January 24, 2022, at

4:00 p.m., at which Plaintiffs may present their arguments in support of their request for
issuance of a preliminary injunction. At such time, Defendant may also be heard as to opposition
to Plaintiffs’ Application. The hearing will take place remotely by telephone in accordance with
Rule 2(B) of the Court’s Individual Rules and Practices in Civil Cases, available at
https://nysd.uscourts.gov/hon-jesse-m-furman. The parties should join the conference by calling
the Court’s dedicated conference line at [phone] and using access code 542-1540,
followed by the pound (#) key. (Members of the public and press may also attend using the
same dial-in information; they will not be allowed to speak during the conference.) Counsel
should review and comply with the rules regarding teleconferences in the Court’s Individual
Rules and Practices in Civil Cases, including Rule 2(B)(i), which requires the parties, no later
than 24 hours before the conference, to send an email to the Court with a list of counsel who may
speak during the teleconference and the telephone numbers from which counsel expect to join
the call.
14.

IT IS FURTHER ORDERED that opposing papers, if any, shall be filed and

served by January 17, 2022 (notwithstanding the fact that it is a Court holiday). Any reply
shall be filed and served by January 20, 2022.
This Temporary Restraining Order is entered at 11:00 a.m. on January 10, 2022, and
shall remain in effect for fourteen (14) days.
SO ORDERED.
Dated: January 10, 2022
New York, New York

_____________________________
Hon. Jesse M. Furman
United States District Judge