ABC v. DEF

Filing 12

ORDER ON PLAINTIFF'S EX PARTE APPLICATION TO TEMPORARILY FILE UNDER SEAL: ENDORSEMENT: The Clerk of the Court is directed to restrict access to this Order to the selected party viewing level. The Clerk of the Court is directed to close this miscellaneous matter. So Ordered. ***This document was previously filed under seal in envelope 2 and unsealed by docket entry 5*** (Signed by Judge Edgardo Ramos on 6/15/2022) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Cuiping Zhou,
Plaintiff,
Civil Action No. 22-cv-06958

-againstTCHH-DayUp, Innifer, SUMGOGO, DLseego,
NUER NEW, foliates, easygogo, Belsmi, Xiying,
juntianshangmaoyouxiangongsi, and RUIMO,

FILED UNDER SEAL

Defendants.

[PROPOSED] TEMPORARY RESTRAINING ORDER
Upon the Declarations of Jiyuan Zhang, dated May 26, 2022, and Cuiping Zhou, dated
May 26, 2022, along with exhibits and other evidence attached thereto, in support of Plaintiff’s ex
parte application for: 1) a temporary restraining order; 2) an order to show cause why a preliminary
injunction should not issue; 3) an order authorizing alternative service and 4) an order authorizing
expedited discovery against Defendants and Amazon.com, the Court makes the following findings
of fact and conclusions of law:
FACTUAL FINDINGS & CONCLUSIONS OF LAW
1. Plaintiff Cuiping Zhou and her relatives have been running and operating of developing,
marketing, selling, licensing and distributing wallets under the “UTO” brand - a trademark
registered with the United States Patent and Trademark Office (“USPTO”).
2. Plaintiff is also the registered owner of the leaf shape opening wallet patent within the U.S.
Patent No. 927,179 S (“’179 Patent”), which discloses a wallet opening design with leaf
shape.

3. Plaintiff began selling her patented wallet to consumers since April 2018 through its
authorized seller account on Amazon.com.
4. Plaintiff alleges that since July 2019, Defendants have been manufacturing, importing,
exporting, advertising, marketing, promoting, distributing, displaying, and selling their
Amazon Storefronts, the following wallet which infringe the '179 Patent. Defendants are
not, nor have they ever been, authorized distributors or licensees of the '179 Patent.
5. Plaintiff has established at this stage that this Court has personal jurisdiction over
Defendants under Civil Practice Law and Rules Section 302 (a)(1) because Defendants
operate Amazon Storefronts through which customers in New York State can, and have
purchased the infringing products.
6. Plaintiff has established a likelihood of success on its claim for patent infringement because
it has shown that the accused products and disclosed designs are "substantially the same"
in that "an ordinary observer, familiar with the prior art designs, would be deceived into
believing that the accused product is the same as the patented design." Richardson v.
Stanley Works, Inc., 597 F.3d 1288, 1295 (Fed. Cir. 2010).
7. As a result of Defendants' infringements, Plaintiff is likely to suffer immediate and
irreparable losses, damages and injuries before Defendants can be heard in opposition,
unless Plaintiffs' Application for ex parte relief is granted, including loss of revenue that
may never be recovered, loss of market share, price erosion, harm to reputation, and loss
of significant marketing opportunities.
8. The balance of potential harm to Defendants of being prevented from continuing to profit
from their illegal and infringing activities if a temporary restraining order is issued is far
outweighed by the potential harm to Plaintiff, its business, and the goodwill and reputation
built up in and associated with sales of its asserted dinosaur wallets.

9. The public interest favors issuance of the temporary restraining order in order to protect
Plaintiff's interests in and to the '179 Patent, and to protect the public from being deceived
and defrauded by Defendants' sales of inferior and infringing products.
10. If Defendants are given notice of this exparte Application, they are likely to secret, conceal,
transfer or otherwise dispose of their infringing products and the records and documents
relating to Defendants' manufacturing, importing, exporting, advertising, marketing,
promoting, distributing, displaying, offering for sale and/or sale of the infringing products.
11. Therefore, good cause exists for granting Plaintiff's request for an Order enjoining
Defendants and any other persons who assist Defendants in importing, distributing,
marketing, offering to sell, and selling the infringing wallets., including Amazon.com.
12. It typically takes Amazon.com, a minimum of five (5) days to comply with expedited
13. requests for discovery. As such, the Court allows enough time for Plaintiff to serve
Amazon.com, with this Order, and for Amazon.com to comply with the Paragraphs IV(B)
and IV(C) of this Order, respectively, before requiring service on Defendants.
14. If Defendants are given notice of the Application, they are likely to destroy, move, hide or
otherwise make inaccessible to Plaintiffs the records and documents relating to Defendants'
manufacturing, importing, exporting, advertising, marketing, promoting, distributing,
displaying, offering for sale and/or sale of the infringing products. Therefore, Plaintiff has
good cause to be granted expedited discovery.
15. Service on Defendants via electronic means is reasonably calculated to result in proper
notice to Defendants, comports with the requirements of due process, and will expedite
notice to Defendants and expedite the relief requested by Plaintiff.

ORDER
Based on the foregoing findings of fact and conclusions of law, Plaintiffs' Application is
hereby GRANTED as follows:
I.

Temporary Restraining Order.
A.

IT IS HEREBY ORDERED, as sufficient cause has been shown, that Defendants

are hereby restrained and enjoined from engaging in any of the following acts or omissions pending
the hearing and determination of Plaintiff's Application for a preliminary injunction as referenced
in Paragraph (II)(A) below:
Manufacturing, importing, exporting, advertising, marketing, promoting,
I.
distributing, displaying, offering for sale, selling infringing products, exemplary images of
which are annexed as Exhibit A;
2.
Secreting, concealing, destroying, altering, selling off, transferring or otherwise
disposing of and/or dealing with: (i) infringing products and/or (ii) any computer files, data,
business records, documents or any other records or evidence relating to their User
Accounts, Internet Storefronts or Defendants' Assets and the manufacture, importation,
exportation, advertising, marketing, promotion, distribution, display, offering for sale
and/or sale of infringing products;
Effecting assignments or transfers, forming new entities or associations, or creating
3.
and/or utilizing any other platform, User Account, Internet Storefront or any other means
of importation, exportation, advertising, marketing, promotion, distribution, display,
offering for sale and/or sale of infringing products for the purposes of circumventing or
otherwise avoiding the prohibitions set forth in this Order; and
4.
Knowingly instructing, aiding or abetting any other person or business entity in
engaging in any of the activities referred to in subparagraphs I(A)(1) through I(A)(3) above
and I(B) below.
B.

IT IS HEREBY ORDERED, as sufficient cause has been shown, that pursuant to

Federal Rule of Civil Procedure 65(d)(2), any persons who are in active concert or participation
with the Defendants identified in Paragraph (I)(A) above who receives actual notice of this order
by personal service or otherwise, are hereby restrained and enjoined from engaging in any of the
following acts or omissions pending the hearing and determination of Plaintiffs' Application for a
preliminary injunction as referenced in Paragraph (I)(A) above, or until further order of the Court:

II.

Order to Show Cause Why A Preliminary Injunction Should Not Issue And
Order Of Notice.
A.

Defendants are hereby ORDERED to show cause before this Court in Courtroom

of the United States District Court for the Southern District of New York at 500 Pearl Street/40
Foley Square, New York, New York on

2022 at

o'clock,

or at such other time that this Court deems appropriate, why a preliminary injunction, pursuant to
Fed. R. Civ. P. 65(a), should not issue.
B.

IT IS FURTHER ORDERED that opposing papers, if any, shall be filed
, 2022, and served on

electronically with the Court by

Plaintiffs counsel by delivering copies thereof to the office of Zhonghao Law Firm, LLP., 21 FL,
IBM Tower, 590 Madison Ave. New York, NY 10022. Plaintiff shall file any Reply papers on or
, 2022.

before
C.

IT IS FURTHER ORDERED that Defendants are hereby given notice that failure

to appear at the show cause hearing scheduled in Paragraph 1I(A) above may result in the
imposition of a preliminary injunction against them pursuant to Fed. R. Civ. P. 65, which may take
effect immediately upon the expiration of this Order. and may extend throughout the length of the
litigation under the same terms and conditions set forth in this Order.
ILL Order Authorizing Alternative Service by Electronic Means.
A.

IT IS FURTHER ORDERED pursuant to Fed. R. Civ. P. 4(O(3), as sufficient cause

has been shown, that service may be made on, and shall be deemed effective as to Defendants if
delivery is made of PDF copies of this Order together with the Summons and Complaint, and all
papers tiled in support of Plaintiffs' Application seeking this Order to Defendants e-mail
addresses identified by Amazon.com, Inc. pursuant to Paragraph IV(B).

B.

IT IS FURTHER ORDERED, as sufficient cause has been shown, that such

alternative service by electronic means ordered herein shall be deemed effective as to Defendants,
and Amazon.com, through the pendency of this action.
C.

IT IS FURTHER ORDERED, as sufficient cause has been shown, that such

alternative service by electronic means ordered herein shall be made on Defendants within five (5)
days of the Third Party Service Providers' compliance with Paragraph IV(B) of this Order.
D.

IT IS FURTHER ORDERED, as sufficient cause has been shown, that service

may be made and shall be deemed effective as to the following if it is completed by delivery of:
(i) a true and correct copy of this Order via Federal Express to Amazon.com, Inc. at Corporation
Service Company 300 Deschutes Way SW, Suite 304, Tumwater, WA 98501, (ii) a PDF copy of
this Order via electronic mail to Deana Ahn counsel for Amazon Pay, at [e-mail] and
[e-mail];
IV. Order Authorizing Expedited Discovery.
A.

IT IS FURTHER ORDERED, as sufficient cause has been shown, that:

I.

Within fourteen (14) days after receiving service of this Order, each Defendant
identified in Paragraph (I)(A) shall serve upon Plaintiffs counsel a written report
under oath providing:
a)

Their true name and physical address;

b)
The name and location and URL of any and all websites that Defendants
own and/or operate and the name, location, account numbers and URL for any and
all User Accounts and Internet Storefronts on any Third Party Service Provider
platform that Defendants own and/or operate;
The complete sales records for any and all sales of infringing products,
c)
including but not limited to number of units sold, the price per unit, total gross
revenue received (in U.S. dollars) and the dates thereof;
The account details for any and all of Defendants' Financial Accounts,
d)
including, but not limited to, the account numbers and current account balances;
and

e)
The steps taken by each Defendant, or other person served to comply with
Section I, above.
2.
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 Plaintiffs'
counsel.
3.
Plaintiff may serve requests for the production of documents pursuant to Fed. R.
Civ. P. 26 and 34, and Defendants who are served with this Order and the requests for the
production of documents shall produce all documents responsive to such requests within fourteen
(14) days of service to Plaintiff's counsel.
B.

IT IS FURTHER ORDERED, as sufficient cause has been shown, that within five

(5) days of receipt of service of this Order, including Amazon.com, shall identify any and all of
Defendants' User Accounts and Internet Storefronts, and provide Plaintiffs' counsel with a
summary report containing account details for any and all User Accounts and Internet Storefronts,
which shall include, at a minimum, identifying information for Defendants and Defendants' User
Accounts and Defendants' Internet Storefronts, contact information for Defendants (including, but
not limited to, mailing addresses and e-mail addresses) and confirmation of said compliance
with this Order.
C.
1.

IT IS FURTHER ORDERED, as sufficient cause has been shown, that:
Within fourteen (14) days of receipt of service of this Order, Amazon.com shall
provide to Plaintiffs 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 Defendants' Internet Storefronts, including, but not limited to,
documents and records relating to:
a)
Any and all User Accounts and Defendants' Internet Storefronts and
account details, including, without limitation, identifying information and account
numbers for any and all User Accounts and Defendants' Internet Storefronts that
Defendants have ever had and/or currently maintain with Amazon.com that were
not previously provided pursuant to Paragraph IV(B);
b)
The identities, location and contact information, including any and all email
addresses of Defendants that were not previously provided pursuant to Paragraph
IV(B);

The nature of Defendants' businesses and operations, methods of payment,
c)
methods for accepting payment and any and all financial information, including,
but not limited to, information associated with Defendants' User Accounts and
Defendants' Internet 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' Internet Storefronts; and
Defendants' manufacturing, importing, exporting, advertising, marketing,
d)
promoting, distributing, displaying, offering for sale and/or selling of infringing
products.
V.

Security Bond
IT IS FURTHER ORDERED that Plaintiff shall place security in the amount of Five

Hundred Dollars ($500.00) with the Court which amount is determined to be adequate for the
payment of any damages any person may be entitled to recover as a result of an improper or
wrongful restraint ordered hereunder.
VI.

Sealing Order
IT IS FURTHER ORDERED that Plaintiffs Complaint and exhibits attached thereto, and

Plaintiff's ex parte Application and the Declarations of Jiyuan Zhang and Cuiping Zhou in support
thereof and exhibits attached thereto and this Order shall remain sealed until Amazon.com,
complies with Paragraphs I and (B) of this Order.
SO ORDERED

SIGNED this

day of

, 2022.

UNITED STATES DISTRICT JUDGE