ABC v. DEF

Filing 76

FINAL DEFAULT JUDGMENT AND PERMANENT INJUNCTION ORDER: Judgment is granted in favor of Plaintiff on all claims properly pled against Defaulting Defendants in the Complaint; IT IS FURTHER ORDERED, ADJUDGED AND DECREED that because it would serve both the compensatory and punitive purposes of the Lanham Act's prohibitions on willful infringement, and because Plaintiff has sufficiently set forth the basis for the statutory damages award requested in its Motion for Default Judgment, th e Court finds such an award to be reasonable and Plaintiff is awarded Fifty Thousand U.S. Dollars ($50,000.00) in statutory damages ("Individual Damages Award") against each of five (5) Defaulting Defendants pursuant to Section 15 U .S.C. § 1117(c) of the Lanham Act, plus post-judgment interest. IT IS FURTHER ORDERED, 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 dissol ved. 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; 3) The Court releases the One Thousand U.S. Dollar ($1,000.00) security bond that Plaintiff submitted in connection with this action to counsel for Plaintiff, Epstein Drangel, LLP, 60 East 42nd Street, Suite 1250, New York, NY 10165; and 4) This C ourt shall retain jurisdiction over this matter and the parties in order to construe and enforce this Order. SO ORDERED. Shenzhenshihaoshengzhekejiyouxiangongsi, Xuchang Hengkang Trading Company, Yi Wu Shi Ou Xing Dianzi Shang Wu Youxian Gongsi, Zaozhuang Boqin Trading Company, Dongguan Dezhuosheng Business & Trading and Quanzhou Dengku Electronic Technology terminated. (Signed by Judge Margaret M. Garnett on 5/14/2024) (mml) Transmission to Finance Unit (Cashiers) for processing.

Jason M. Drangel (JD 7204)
[e-mail]
Ashly E. Sands (AS 7715)
[e-mail]
Danielle S. Futterman (DY 4228)
[e-mail]
Gabriela N. Nastasi
[e-mail]
EPSTEIN DRANGEL LLP
60 East 42nd Street, Suite 1250
New York, NY 10165
Telephone: [phone]
Facsimile:
[phone]
Attorneys for Plaintiff
Kelly Toys Holdings, LLC

5/15/2024

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KELLY TOYS HOLDINGS, LLC,
Plaintiff
v.
CHANG SHA ZHUO QIAN DIAN ZI KE JI YOU XIAN
GONG SI, CHANG ZHOU WAN KAI WEN HUA YONG
PIN YOU XIAN GONG SI, CHENGDE JIUBO
ELECTRONIC
COMMERCE,
DALIAN
JIAXU
TRADING, DONG GUAN SHI HAI QI MAO YI
YOUXIANGONGSI, DONGGUAN DEZHUOSHENG
BUSINESS & TRADING, DONGGUAN TINGQIWAN
TRADING,
FUDINGSHIXIAOQIRIYONGBAIHUOJINGYINGBU,
GUANG ZHOU SHI AI NI MAO YI YOU XIAN GONG
SI, GUANGZHOU DOMINEERING POINT TRADING,
GUANGZHOU JIWEI INFORMATION TECHNOLOGY,
GUANGZHOU
LINGHE
DIANZI
KEJIYOUXIANGONGSI,
GUANGZHOU
SHUZISHANDONG
KEJI
YOUXIAN
GONGSI,
GUANGZHOU TAOPAI DEPARTMENT STORE
CENTER,
GUANGZHOUFUHANJIAJUYONGPINYOUXIANGON
GSI,
HAILUNSHIHUITENGSHANGMAOYOUXIANGONGS

CIVIL ACTION No.
22-cv-3739 (MMG)
[PROPOSED]
FINAL DEFAULT
JUDGMENT AND
PERMANENT
INJUNCTION ORDER

I,
HANGZHOU
MINGXU
JINCHUKOU
YOUXIANGONGSI,
HANGZHOUHANFEIMAOYIYOUXIANGONGSI,
HUIDA CROSS-BORDER LOGISTICS (SHENZHEN),
HUIZHOU
RUICHANGDA
TECHNOLOGY,
NANFANGYU
(SHENZHEN)
GUOJIMAOYIYOUXIANGONGSI,
NANTONGWUNIUFANGZHIPINYOUXIANGONGSI,
QUANZHOU DENGKU ELECTRONIC TECHNOLOGY,
SHEN ZHEN SHI LE KA MAO YI YOU XIAN GONG SI,
SHEN ZHEN SHI PO FU SHANG MAO YOU XIAN
GONG SI, SHENZHEN DONGRENHAO TRADING,
SHENZHEN FENGBO TRADING,
SHENZHEN
GUICHEN TECHNOLOGY, SHENZHEN HAIWEISI
TECHNOLOGY, SHENZHEN HUAFEI TRADING,
SHENZHEN JIENUOYI TRADING, SHENZHEN
LEBANGHUI TRADING, SHENZHEN NAIERJIN
TECHNOLOGY, SHENZHEN SHI JUNGE TRADING,
SHENZHEN TIANYING E-COMMERCE, SHENZHEN
XINYICHUANG TECHNOLOGY, SHENZHENSHI
BAOANQU
BISHUN
SHANGMAOHANG,
SHENZHENSHI MAISITONG KEJI YOUXIANGONGSI,
SHENZHENSHI
MITANG
FANGZHIPIN
YOUXIANGONGSI, SHENZHENSHI NUOSHILAN
DIANZI
YOUXIAN
GONGSI,
SHENZHENSHIAIYANKEJIYOUXIANGONGSI,
SHENZHENSHIHAOSHENGZHEKEJIYOUXIANGON
GSI,
SHENZHENSHIHUAYUYANGMAOYIYOUXIANGON
GSI,
SHENZHENSHISITABORUIKEJIYOUXIANGONGSI,
TAIZHOUSHIYAGESUYEYOUXIANGONGSI,
WEIFANG YUJIN TRADING, WEIHAI LEKA
TECHNOLOGY, WEIHAI XUSHENG TECHNOLOGY,
WUHUASHUIZHAIZHENRUNLINDICHANZHONGJI,
XINXIANG YALI NETWORK, XINYU MAOXIN
TECHNOLOGY, XUCHANG HENGKANG TRADING
COMPANY, YI WU SHI OU XING DIANZI SHANG WU
YOUXIAN
GONGSI,
YIWEISAI
(SHENZHEN)
ELECTRONIC and ZAOZHUANG BOQIN TRADING
COMPANY,
Defendants

Defaulting
Defendants
Fruugo

Sealing Order
Complaint
Epstein
Drangel
New York
Address
Application

Kelly Dec.
Ioannou Dec.
Squishmallows
Products

Squishmallows
Application
Squishmallows
Registrations

Squishmallows
Marks
Squishmallows
Works

Dongguan Dezhuosheng Business & Trading, Quanzhou Dengku
Electronic Technology, Xuchang Hengkang Trading Company,
Yi Wu Shi Ou Xing Dianzi Shang Wu Youxian Gongsi and
Zaozhuang Boqin Trading Company
Fruugo.com, an online marketplace platform that allows
manufacturers, wholesalers and other third-party merchants, like
Defendants, to advertise, offer for sale, sell, distribute and ship
their wholesale and retail products originating from China
directly to consumers across the world and specifically to
consumers residing in the U.S., including New York
Order to Seal File entered on May 6, 2022
Plaintiff’s Complaint filed on May 9, 2022
Epstein Drangel LLP, counsel for Plaintiff

N/A

N/A

Dkt. 1
Dkt. 8
N/A

244 Madison Ave, Suite 411, New York, New York 10016

N/A

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 May 9, 2022

N/A

Declaration of Jonathan Kelly in Support of Plaintiff’s
Application
Declaration of Karena K. Ioannou in Support of Plaintiff’s
Application
A line of loveable buddies made with a super soft, marshmallowlike texture that come in a variety of sizes from 3.5-inch clip-ons
to extra-large 24 inch plush toys, and have expanded to other styles
including Hug Mees, Stackables, Mystery Squad and Flip-AMallows.
U.S. Trademark Serial Application No.: 90/676,140 for
“ORIGINAL SQUISHMALLOWS,” for goods in Class 28

Dkt. 15

U.S.
Trademark
Registration
Nos.:
5,454,574
for
“SQUISHMALLOW” for goods in Class 28; 6,137,521 for “FLIP
A MALLOWS” for goods in Class 28; 5,962,289 for “MYSTERY
SQUAD” for goods in Class 28; 2,029,047 for “KELLYTOY” for
goods in Class 28; and 6,654,108 for “SQUISHMALLOWS HUG
MEES” for goods in Class 28
The marks covered by the Squishmallows Registrations and
Squishmallows Application
The works covered by the U.S. copyright registrations listed in
Exhibit C to the Complaint

N/A

ii

Dkt. 16
N/A

N/A

N/A
N/A

Counterfeit
Products

Infringing
Listings
User Accounts

Merchant
Storefronts

Defendants’
Assets
Defendants’
Financial
Accounts
Financial
Institutions

Third Party
Service
Providers

Products bearing or used in connection with the Squishmallows
Marks and/or Squishmallows Works, and/or products in
packaging and/or containing labels and/or hang tags bearing the
Squishmallows Marks and/or Squishmallows Works, and/or
bearing or used in connection with marks and/or artwork that are
confusingly or substantially similar to the Squishmallows Marks
and/or Squishmallows Works and/or products that are identical or
confusingly or substantially similar to the Squishmallows
Products
Defendants’ listings for Counterfeit Products

N/A

Any and all websites and any and all accounts with online
marketplace platforms such as Fruugo 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)

N/A

Any and all financial accounts associated with or utilized by any
Defendants or any Defendants’ User Accounts or Merchant
Storefront(s) (whether said accounts are located in the U.S. or
abroad)
Any banks, financial institutions, credit card companies and
payment processing agencies, such as PayPal Inc. (“PayPal”),
Payoneer Inc. (“Payoneer”), Alipay.com Co., Ltd. (“Alipay”),
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 Fruugo, 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

N/A

iii

N/A

N/A

N/A

N/A

N/A

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, trademark counterfeiting, false designation of
origin, passing off and unfair competition and related state and common law claims arising
out of Defaulting Defendants’ unauthorized use of Plaintiff’s Squishmallows Marks and/or
Squishmallows Works, without limitation, in their manufacturing, importing, exporting,
advertising, marketing, promoting, distributing, displaying or offering for sale and/or selling
and/or sale of Counterfeit Products.1
The Court, having considered the Memorandum of Law and Affidavit of Gabriela N.
Nastasi in support of Plaintiff’s Motion for Default Judgment, the Certificate 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 upon all other pleadings and papers on file in this action, it is
hereby ORDERED, ADJUDGED AND DECREED as follows:
I.

Defaulting Defendants’ Liability

1) Judgment is granted in favor of Plaintiff on all claims properly pled against Defaulting
Defendants in the Complaint;
II.

Damages Awards

1) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that because it would serve both
the compensatory and punitive purposes of the Lanham Act’s prohibitions on willful
infringement, and because Plaintiff has sufficiently set forth the basis for the statutory damages
award requested in its Motion for Default Judgment, the Court finds such an award to be
reasonable and Plaintiff is awarded Fifty Thousand U.S. Dollars ($50,000.00) in statutory

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

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damages (“Individual Damages Award”) against each of five (5) Defaulting Defendants
pursuant to Section 15 U.S.C. § 1117(c) of the Lanham Act, plus post-judgment interest.
III.

Permanent Injunction

1) 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 Counterfeit Products
or any other products bearing one or more of the Squishmallows Marks and/or
Squishmallows Works and/or marks and/or artwork that are confusingly or
substantially similar to, identical to and constitute a counterfeiting and/or infringement
of the Squishmallows Marks and/or Squishmallows Works;
B. directly or indirectly infringing in any manner any of Plaintiff’s Squishmallows Marks
and/or Squishmallows Works;
C. using any reproduction, counterfeit, copy or colorable imitation of Plaintiff’s
Squishmallows Marks and/or Squishmallows Works to identify any goods or services
not authorized by Plaintiff;
D. using Plaintiff’s Squishmallows Marks and/or Squishmallows Works, or any other
marks and/or artwork that are confusingly or substantially similar to the Squishmallows
Marks and/or Squishmallows Works on or in connection with the manufacturing,
importing, exporting, advertising, marketing, promoting, distributing, displaying,
offering for sale, selling and/or otherwise dealing in the Counterfeit Products;
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E. 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 Defaulting Defendants with Plaintiff, and/or as to
the origin, sponsorship or approval of any product manufactured, imported, exported,
advertised, marketed, promoted, distributed, displayed, offered for sale or sold by
Defaulting Defendants and Defaulting Defendants’ commercial activities by Plaintiff;
F. secreting, concealing, destroying, altering, selling off, transferring or otherwise
disposing of and/or dealing with: (i) Counterfeit Products; (ii) any computer files, data,
business records, documents or any other records or evidence relating to their User
Accounts, Merchant Storefronts or Defaulting Defendants’ Assets and the
manufacture, importation, exportation, advertising, marketing, promotion, distribution,
display, offering for sale and/or sale of Counterfeit Products; and
G. 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 Counterfeit Products for the purposes of
circumventing or otherwise avoiding the prohibitions set forth in this Order.
2)

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defaulting Defendants
must deliver up for destruction to Plaintiff any and all 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

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trademarks, copyrights or other rights including, without limitation, the Squishmallows Marks
and/or Squishmallows Works, or bear any marks and/or artwork that are confusingly or
substantially similar to the Squishmallows Marks and/or Squishmallows Works pursuant to
15 U.S.C. § 1118;
3)

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defaulting Defendants
and all persons in active concert and participation with them who receive actual notice of this
Order, including Third Party Service Providers and Financial Institutions who satisfy those
requirements and are identified in this Order, are permanently enjoined and restrained from:
A. secreting, concealing, transferring, disposing of, withdrawing, encumbering or paying
any of the Defaulting Defendants’ Frozen Assets from or to Defaulting Defendants’
Financial Accounts until further ordered by this Court;
B. secreting, concealing, destroying, altering, selling off, transferring or otherwise
disposing of and/or dealing with any computer files, data, business records, or any
other records or evidence relating to the Defendants’ Assets and Defendants’ Financial
Accounts;
C. knowingly instructing any other person or business entity in engaging in any of the
activities referred to in subparagraphs III(1)(A) through III(2) and III(3)(B) above
through III(4)(A) below.

4)

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defaulting Defendants
and all persons in active concert and participation with them who receive actual notice of this
Order, including Third Party Service Providers and Financial Institutions who satisfy those
requirements and are identified in this Order, are permanently enjoined and restrained from:

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A. providing services to Defaulting Defendants and Defaulting Defendants’ User
Accounts and Merchant Storefronts, including, without limitation, continued operation
of Defaulting Defendants’ User Accounts and Merchant Storefronts; and
B. knowingly instructing any other person or business entity in engaging in any of the
activities referred to in subparagraphs III(1)(A) through III(2) and III(3)(B) above
through III(4)(A) above.
IV.

Dissolution of Rule 62(a) Stay

1) IT IS FURTHER ORDERED, 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.
V.

Miscellaneous Relief

1) Defaulting Defendants may, upon proper showing and two (2) business days written notice to
the Court and Plaintiff’s counsel, appear and move for dissolution or modification of the
provisions of this Order;
2) 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;
3) The Court releases the One Thousand U.S. Dollar ($1,000.00) security bond that Plaintiff
submitted in connection with this action to counsel for Plaintiff, Epstein Drangel, LLP, 60 East
42nd Street, Suite 1250, New York, NY 10165; and

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