Case 8:23-cv-02787-VMC-AAS Document 19 Filed 12/14/23 Page 1 of 33 PageID 136

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

XIANFENG WANG
Case No.: 8:23-cv-2787
Plaintiff
Judge Virginia M. Hernandez
v. Covington
Magistrate Judge Amanda Arnold
THE PARTNERSHIPS AND Sansone
UNINCORPORATED
ORGANIZATIONS IN SCHEDULE A
Defendants.

MEMORANDUM IN SUPPORT OF PLAINITFF’S EX PARTE

MOTION FOR ENTRY OF A TEMPORARY RESTRAINING
ORDER, INCLUDING A TEMPORARY INJUNCTION, A
TEMPORARY ASSET RESTRAINT, EXPEDITED DISCOVERY,
AND SERVICE OF PROCESS BY ELECTRONIC EMAIL, AND/OR
PUBLICATION

XIANFENG WANG, “Plaintiff”, submits this Memorandum in

support of his Ex Parte Motion for Entry of a Temporary Restraining

Order, including a temporary injunction, a temporary asset restraint,

expedited discovery, and service of process by email and/or electronic

publication (the “Ex Parte Motion”).

MEMORANDUM OF LAW

I. INTRODUCTION AND SUMMARY OF ARGUMENT.

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Plaintiff brings this action against the Defendants identified in sealed

Schedule A of the Complaint (Dkt. 1), for federal patent infringement. As

alleged in the Complaint, Defendants engaged in the marketing,

advertising, importation, distribution, offering for sale, and selling of

knock-Off ‘Trapezoidal Handbag’ Products (“Infringing Products”) in

connection with Plaintiff awarded United States Design Patent D907360

(U.S. Pat. D**360 or “Official ‘Trapezoidal Handbag’ Products”), through

various online marketplace accounts set forth in Schedule A, also known as

“Defendant Internet Stores”, each Defendant having one or multiple

products, such as multiple ASINs, related to their specific Defendant

Internet Stores. Screenshots of the knock-off ‘Trapezoidal Handbag’

Products obtained from the various Defendant Internet Stores are shown in

sealed Exhibit B of the Complaint. In short, Defendants run illicit stores

that sell infringing knock-off Products with disregard for anything except

generating profits.

The Defendants create the Defendant Internet Stores with the intent

to have them appear to be selling licensed Official ‘Trapezoidal Handbag’

Products, while in reality they are selling Infringing Products, in violation

of Plaintiff’s patent rights and to unknowing consumers. Defendants

attempt to avoid liability by concealing both their identities and the full

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scope and interworking of their knock-off operations. Plaintiff filed this

action to combat Defendants’ infringing the **360 patent, as well as to

protect consumers from purchasing on information and belief, inferior

product.

This Court has person jurisdiction over Defendants because

Defendants target Florida residents and have offered to sell, and on

information and belief, have sold and continue to sell Infringing Products

to consumers within the United States and in the State of Florida.

Specifically, Defendants are reaching out to do business with Florida

residents by operating one or more commercial, interactive Defendant

Internet Stores through which Florida residents can purchase knock-off

products being sold in connection with Plaintiff’s Official ‘Trapezoidal

Handbag’ Products and the **360 patent.

Defendants ongoing unlawful activities should be restrained, and

Plaintiff respectfully requests that this Court issue an ex parte Temporary

Restraining Order. Specifically, Plaintiff seeks an order to (1) temporarily

restrain Defendants’ continued manufacture, importation, distribution,

offering for sale, and sale of Infringing Products, and (2) temporarily

restraining Defendants’ assets to preserve Plaintiff’s right to an equitable

accounting. Ancillary to and as part of the TRO, Plaintiff respectfully

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request that this Court (3) authorize expedited discovery allowing Plaintiff

to inspect and copy Defendants’ records relating to the manufacture,

distribution, offering for sale, and sale of Infringing Products and

Defendants’ financial accounts; and (4) authorize service by electronic mail

or electronic publication, due to the fact that Defendants are, on

information and belief, located in China and Plaintiff, though with diligent

effort, have been unable to locate them.

In light of the covert nature of offshore design patent infringing

activities being undertaken by Defendants, and the vital need to establish

an economic disincentive for counterfeiting, federal circuit courts regularly

issue orders awarding such relief. See, Oakley Inc. v. Sunglass Hut

International, 316 F.3d 1331, 1338 (Fed. Cir. 2003)(“… Oakley sued

Sunglass Hut on November 6, 2001, for, inter alia, infringement of the ‘902

patent, and sought a temporary restraining order (“TRO”) … The court

entered the TRO on November 20 …”); See also, Edge Systems LLC v.

Aguila, 635 F. App’x 897, *3-4 (Fed. Cir. 2015)(“The next month, Appellees’

Emergency Motion for Ex Parte Temporary Restraining Order and Order to

Show Cause Regarding Preliminary Injunction was granted.”)

Plaintiff’s well-pleaded factual allegations, which must be accepted as

true, and evidence submitted through declarations, establishes that issuing

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a temporary restraining order against Defendants is necessary and proper.

Plaintiff can demonstrate a strong likelihood of success on the merits,

irreparable harm if the injunction is not granted, the balance of hardships

falls in favor of the Plaintiff, and it is in the public interest to grant this

temporary injunction. Oakley, Inc., 316 F.3d at 1338 (“A decision to grant

or deny a preliminary injunction is within the sound discretion of the

district court, based upon its assessment of four factors: (1) the likelihood

of the patentee’s success on the merits, (2) irreparable harm if the

injunction is not granted, (3) the balance of hardships between the parties,

and (4) the public interest.”)

Regarding a design patent, infringement occurs “if, in the eye of an

ordinary observer, giving such attention as a purchaser usually gives, two

designs are substantially the same.” Samsung Elecs. Co. v. Apple, Inc., 137

S. Ct. at 432 (2016), quoting, Gorham Co. v. White, 14 Wall. 511, 525, 20 L.

Ed. 731 (1872). In the present case and in view of the evidence of

Defendants’ Infringing Products (Dkt 1, Exhibit B (sealed)) and the designs

covered in Plaintiff’s **360 patent (Dkt. 1, Exhibit A (sealed)), notably

implementation of the Pyramid Design of ‘Trapezoidal Handbag’, to the eye

of an ordinary observer, being that of a purchaser, shows that the design in

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the **360 patent and the Infringing Products are even more than

substantially the same, but are in fact alike.

Regarding a finding of irreparable harm, the Federal Circuit has held

where validity and continuing infringement have been clearly established,

immediate harm is presumed. Smith Intern., Inc. v. Hughes Tool Co., 718

F.2d 1573, 1581 (Fed. Cir. 1983). The **360 design patent was subject to an

intense review by the U.S. patent examiner, which involved the

consideration of over a dozen design patents and searching in variety of key

areas (Exhibit 1). In light of such an extensive prior art search, the

examiner found Plaintiff ‘Trapezoidal Handbag’ design patentable. High

Point Design LLC v. Buyer's Direct, Inc., 621 F. App'x 632, 9 (Fed. Cir.

2015) (“Design patents are presumed to be valid.”); See also, 35 U.S.C. §

282. As of the filing of this temporary restraining order, Defendants

Internet Stores are still marketing and selling their respective Infringing

Products (Declaration of Robert DeWitty (“DeWitty Decl.”)). In light of the

patent **360’s validity and the continuing infringement activity of

Defendants, Plaintiff are suffering and will continue to suffer irreparable

harm in the event this temporary restraining order is not granted.

Regarding the balance of hardships between the parties, as Plaintiff

have a sincere interest in enforcing its patent rights, the balance of

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hardships weighs in favor of Plaintiff. Apple, Inc. v. Samsung Elecs. Co.,

678 F.3d 1314, 1338 (Fed. Cir. 2012) (“the balance of hardships weighs in

Apple's favor because it has an interest in enforcing its patent rights.”); See

also, Edge Systems LLC v. Aguila, 635 F. App’x at 1359 (“Equitable relief is

also available in patent infringement suits.”)

The public interest is further served by granting Plaintiff this

temporary restraining order. Smith Intern., Inc. v. Hughes Tool Co., 718

F.2d 1573, 1581 (Fed. Cir. 1983) (“public policy favors protection of the

rights secured by the valid patents.”); Hybritech Inc. v. Abbott

Laboratories, 849 F.2d 1446, 1458 (Fed. Cir. 1988) (“Here, the district

court found, with respect to most of Abbott's products involved in this

proceeding, that the public interest in enforcing valid patents outweighed

any other public interest considerations. … We cannot hold that the district

court's public interest analysis provides a basis for us to disturb its grant to

Hybritech of preliminary relief.”)

Under Federal Rule of Civil Procedure 65(d)(2)(C), this Court has the

power to bind third parties, such as online platforms like Amazon.com and

financial institutions, who are in active concert with the Defendants, or who

aid and abet Defendants and are given actual notice of the order. See, Lead

Creation, Inc. v. The P'ships & Unincorporated Ass'ns Identified on

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Schedule A, 8:23-cv-49-CEH-CPT, at *12 (M.D. Fla. Feb. 14, 2023) (“… the

Court finds that the Defendants may hide or transfer any ill-gotten assets

beyond the jurisdiction of this Court unless those assets are restrained.”);

Mattel, Inc. v. Entities Doing Bus. on Amazon.com Under Brand Name

Barbegio, 20-cv11069 (AJN), at *1 (S.D.N.Y. Mar. 5, 2021) (“Plaintiff

simultaneously filed under seal an ex parte motion for attachment and

temporary restraining order to prevent Defendants from transferring or

withdrawing their funds from Amazon.com .”) Similarly, a pre-judgement

asset freeze is also proper since Plaintiff seek an equitable remedy in the

accounting of Defendants’ profits pursuant to 35 U.S.C. § 289. Finally, an

order authorizing service of process by email and/or electronic publication

is proper as a result of Defendants’ intentional efforts to conceal their

identities and operate their businesses online. Serving Defendants

electronically is the best method for notifying them of this action and

providing them the opportunity to defend and present their objections.

II. STATEMENT OF FACTS.

A. Plaintiff’s ‘Trapezoidal Handbag’ patent (**360) and

corresponding Products.

Plaintiffs ‘Trapezoidal Handbag’ products, based on the **360 patent,

are recognized as a an inventive design for handbags. The Trapezoidal

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Handbag features four slanted sides and a small flat top, with a larger flat

base. The large flat base is connected to the trapezoid structure with a

zipper. Users can unzip the bottom, opening up the large flat base to easily

place items inside the Trapezoidal Handbag. Since the **360 patent issued

in January 12, 2021 (with a filing date of September 28, 2019), the

Trapezoidal Handbag has increasingly become popular online, spurring

many knock-off products. On information and belief, striped cabinet

products are sold around the world via distributors and retail outlets, and

thousands of units have been sold. Online sales of Trapezoidal Handbag

products have represented a significant portion of Plaintiff’s business.

DEWITTY DECL. Plaintiff designed, patented, and launched its

‘Trapezoidal Handbag’ products long before Defendants’ acts described

herein. Plaintiff is the owner of the **360 patent, whereby the **360 is

valid and enforceable. A true and correct copy of the **360 patent is

attached to the Complaint (Exhibit A (sealed)).

The **360 is a valid patent that was subject to pre-allowance

examination. See, High Point Design, LLC v. Buyer’s Direct, Inc., 621 F.

App’x 632 (Fed. Cir. 2015) (“Design patents are presumed to be valid.”); See

also, 35 U.S.C. §282.

B. Defendants’ Unlawful Activities.

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The success of the ‘Trapezoidal Handbag’ product has resulted in it

being copied. DEWITTY DECL. Defendants intentionally copied the

‘Trapezoidal Handbag’ design due to its market success, including online

market success, which resulted from the ‘Infringing Products’ having

cabinet fronts with a stacked diamond design, legs, and handles on the

drawers. Plaintiff has established that Defendants sell Infringing Products

to consumers in the United States and the State of Florida, including within

the Middle District of Florida. DEWITTY DECL. Internet Stores, like

Defendant Internet Stores, i.e., those owned by The Partnerships and

Unincorporated Associations of Schedule A, attached hereto, whereby they

possess identifiers such as their respective ASINs (“Amazon Standard

Identification Number”), are estimated to receive tens of thousands of visits

per year and generate several hundreds of thousands of dollars in annual

online sales. DEWITTY DECL. A sample of Defendants’ Infringing

Products is shown in Exhibit B of the Complaint (sealed). DEWITTY DECL.

As shown, the various knock-off version possess a trapezoidal structure in

their handbag, and thus they infringe the **360 patent.

Upon information and belief, Defendants maintain off-shore bank

accounts and regularly move funds from its accounts to off-shore bank

accounts outside the jurisdiction of this Court. Indeed, analysis of

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transaction logs from similar cases brought by other patent owners

indicates that off-shore counterfeiters regularly move funds from their U.S.

accounts to China-based bank accounts outside the jurisdiction of this

Court. DEWITTY DECL.

The tactics used by Defendants to conceal their identities and the full

scope of their counterfeiting operation make it virtually impossible for the

Plaintiff to discover the true identity of the Defendants. DEWITTY DECL.

III. ARGUMENT.

A. Temporary Restraining Order is necessary in this case

to maintain status quo of monetary accounts.

The purpose of a temporary restraining order is to preserve the status

quo until the Court has an opportunity to conduct a hearing on a

preliminary injunction. Lead Creation, Inc. v. The P'ships &

Unincorporated Ass'ns Identified on Schedule A, 8:23-cv-49-CEH-CPT, at

*6 (M.D. Fla. Feb. 14, 2023) (“a district court may “grant injunctions in

accordance with the principles of equity to prevent the violation of any right

secured by patent, on such terms as the court deems reasonable.”) Plaintiff

requests relief in the form of preservation of this long-standing status quo.

Defendants' want to disrupt this status quo in dramatic fashion by

introducing their infringing designs for sale in online stores. In

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circumstances like these, courts often grant preliminary relief. See, Lead

Creation, Inc. v. The P'ships & Unincorporated Ass'ns Identified on

Schedule A at *1; GENENTECH, INC. v. NOVO NORDISK, 935 F. Supp.

260, 265 (S.D.N.Y. 1996) (“On June 14, 1995, this court issued a temporary

restraining order to preserve the status quo pending the Court's ruling on

Genentech's motion for a preliminary injunction. On June 28, 1995, this

motion was granted.”). Freezing of bank accounts and financial accounts

has been recognized as a means of maintaining the status quo. See, Church

& Dwight Co. v. Kaloti Enterprises of Michigan, L.L.C., 07 Civ. 0612

(BMC), at *2 (E.D.N.Y. Jan. 30, 2012) (“this Court issued a Temporary

Restraining Order freezing all bank accounts "used by" Y&P Wholesale.

Pursuant to this Order, three bank accounts in the name of Y&P Imports

were frozen.”); See also, N. Atl. Operating Co. v. Scott, No. 16-12076 (E.D.

Mich. July 1, 2016) (granting TRO in view of the courts view that

Defendants are likely to change, destroy, or delete evidence related to any

counterfeit activity, including existing online marketplace accounts and

associated records, and transfer or hide any assets from their financial

accounts, including PayPal accounts). In the absence of a temporary

restraining order without notice, the Defendants can and likely will modify

registration data and content, redirect traffic to other stores in their

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control, and move any assets from U.S.-based accounts. Courts have

recognized that civil actions against counterfeiters present special

challenges that justify proceeding on an ex parte basis. Plaintiff

respectfully request that this Court issue the requested ex parte temporary

restraining order to maintain the status quo.

B. This Court has original subject matter jurisdiction, as

well as personal jurisdiction over Defendants.

This Court has original subject matter jurisdiction over the claims in

this action pursuant to the provisions of 28 U.S.C. § 1338 (“The district

courts shall have original jurisdiction of any civil action arising under any

Act of Congress relating to patents …”).

This Court has personal jurisdiction over Defendants as in this

Judicial District pursuant to C.P.L.R. § 302(a)(1) and C.P.L.R. § 302(a)(3),

or in the alternative, Fed. R. Civ. P. 4(k) because, upon information and

belief, Defendants regularly conduct, transact and/or solicit business in

Florida and in this Judicial District, and/or derive substantial revenue from

business transactions in Florida and in this Judicial District and/or

otherwise avail themselves of the privileges and protections of the laws of

the State of Florida such that this Court’s assertion of jurisdiction over

Defendants does not offend traditional notions of fair play and due process,

and/or Defendants’ illegal counterfeiting and infringing actions caused

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injury to Plaintiff in Florida and in this Judicial District such that

Defendants should reasonably expect such actions to have consequences in

Florida and this judicial District. See, Lead Creation, Inc. at *7.

Defendants’ Internet Stores accept orders for Infringing Products

from and offer shipping to Florida addresses located in this Judicial

District. Screenshots of the shopping cart from Defendants’ Internet Stores

allowing Counterfeit Products to be shipped to this Judicial District is

attached as Exhibit 2.

Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b)(2) and

1400(a) because Defendants have committed acts of patent infringement in

this Judicial District, do substantial business in the Judicial District, have

registered agents in this Judicial District, and/or reside or may be found in

this district.

C. Standard for Issuance of a Temporary Restraining

Order.

Plaintiff seeking a temporary restraining order are required to show a

likelihood of success on the merits, a balance of hardships tipping in the

Plaintiff’ favor, the likelihood of irreparable harm if the temporary

restraining order is not granted, and the nature and extent of public

interest. M.D. Fla. L.R. 6.01(a); See, Dimare Ruskin, Inc. v. Del Campo

Fresh, Inc., CASE NO: 8:10-cv-1332-T-23AEP (M.D. Fla. June 15, 2010);

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See also, eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837,

164 L.Ed.2d 641 (2006).

This District Court has held that the standard for granting a

temporary restraining order and the standard for granting a preliminary

injunction are identical. School Bd. of Pinellas County, Fla. v. J.M., 957 F.

Supp. 1252, 1257 (M.D. Fla. 1997). The Supreme Court has reminded

district courts considering requests for injunctive relief in patent cases that

the traditional rules of equity apply to such an application, including the

requirement that the movant demonstrate the likelihood of irreparable

harm. Canon Inc. v. GCC Int'l Ltd., 450 F. Supp. 2d 243, 251 (S.D.N.Y.

2006), aff'd, 263 F. App'x 57 (Fed. Cir. 2008) (citing eBay, Inc. v.

MercExchange, L.L.C., 547U.S. 388, ––––, 126 S.Ct. 1837, 1839, 164

L.Ed.2d 641 (2006)).

1. Plaintiff Will Likely Succeed on the Merits of its Patent

Infringement Claim.

To obtain temporary injunctive relief, Plaintiff must show some

likelihood of success on the merits. See, Abbott Lab'ys v. Sandoz, Inc., 544

F.3d 1341, 1366 (Fed. Cir. 2008); Atlas Powder Co. v. Ireco Chems., 773

F.2d 1230, 1233 (Fed. Cir. 1988) (rejecting argument that patentee must

prove infringement and validity "beyond question" in order to secure a

preliminary injunction). For patents, likelihood of success rests upon

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validity of the patent and infringement. Abbott Laboratories, at 1368 (Fed.

Cir. 2008) (“In seeking a preliminary injunction pursuant to section 283, a

patent holder must establish a likelihood of success on the merits both with

respect to validity of its patent and with respect to infringement of its

patent .")

a. Plaintiff can establish validity of the **360 patent.

Whereas an issued design patent is presumed valid, Plaintiff’s patent

was subjected to a high degree of examiner scrutiny during the patent

prosecution process (Exhibit 1). DEWITTY DECL. See, High Point Design

LLC v. Buyer's Direct, Inc., 621 F. App'x 632, 9 (Fed. Cir. 2015) (“Design

patents are presumed to be valid.”); See also, 35 U.S.C. § 282. To challenge

Plaintiff’s request for emergency relief, it is Defendants' burden to prove

that Plaintiff' patent is invalid. Oakley, Inc. v. Sunglass Hut International,

316 F.3d 1331, 1339 (Fed. Cir. 2003) ("in the context of a preliminary

injunction ... the burden of proving invalidity is with the party attacking

validity"). Under Federal Circuit precedent, Defendants' must do more than

raise a "substantial question". Defendants' must present evidence sufficient

to convince the Court that Plaintiff are unlikely to succeed on the merits of

its validity claim. Abbott, 544 F.3d at 1364 ("the correct standard is not

whether a substantial question has been raised, but whether the patentee is

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likely to succeed on the merits, upon application of the standards of proof

that will prevail at trial").

Plaintiff has a strong likelihood of success with respect to the validity

of the **360 patent.

b. Plaintiff can establish infringement of design patent.

In design patent law, a design patent is determined infringed based

upon the eye of the ordinary observer. See, Egyptian Goddess v. Swisa, 543

F.3d 665, 676 (Fed. Cir. 2008); See also, Lanard Toys Ltd. v. Toys ''R'' Us-

Delaware, Inc., No. 3:15-CV-849-J-34PDB, 2019 WL 1304290, at *10, n.11

(M.D. Fla. Mar. 21, 2019), aff'd sub nom. Lanard Toys Ltd. v. Dolgencorp

LLC, 958 F.3d 1337 (Fed. Cir. 2020) (“such examination must be part of the

overall ordinary observer test, not as a separate test focused on particular

points of novelty”). ‘Substantially similar’ is generally the question to be

addressed in judging design patent infringement. Egyptian Goddess v.

Swisa, at 678 (Fed. Cir. 2008) (“when the claimed and accused designs are

not plainly dissimilar, resolution of the question whether the ordinary

observer would consider the two designs to be substantially the same will

benefit from a comparison of the claimed and accused designs with the

prior art”). As shown in the Chart 1 below, Defendants’ Infringing Products

are at least substantially similar, but in most examples exactly alike to

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Plaintiff’s ‘Trapezoidal Handbag’ Product. For brevity, Plaintiff have only

included a few examples of Defendants’ Infringing Products:

Design of **360 Defendant Copycat Prior Art (cited by

examiner)
Patent

D312726

CVNC

Joysense
D608088

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SOLSHINE
D838105

In the eye of an ordinary observer, Defendants’ Infringing Products are

extraordinarily similar, if not exactly alike, the designs of the **360 patent.

Plaintiff will thus likely be successful in their assertion of infringement.

2. Plaintiff will suffer Irreparable Harm without

Injunctive Relief.

Irreparable injury should be presumed because the Plaintiff has

established infringement and validity of the **360 patent. See, Purdue

Pharma L.P. v. Boehringer Ingelheim GMBH, 237 F.3d 1359, 1363 (Fed.

Cir. 2001) (when a moving party makes "clear showing" of validity and

infringement "it is entitled to a rebuttable presumption of irreparable

harm").

"[T]his presumption derives in part from the finite term of the patent
grant, for patent expiration is not suspended during litigation, and
the passage of time can work irremediable harm ... The nature of the

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patent grant thus weighs against holding that monetary damages will
always suffice to make the patentee whole, for the principal value of a
patent is its statutory right to exclude."

H.H. Robertson Co. v. United Steel Deck, 820 F.2d 384, 390 (Fed. Cir.

1987) (overruled on other grounds at Markman v. Westview Instruments,

Inc., 52 F.3d 967 (Fed. Cir. 1995)). See also, Acumed LLC v. Stryker Corp.,

551 F.3d 1323, 1328 (Fed. Cir. 2008) (affirming injunction and finding "the

essential attribute of a patent grant is that it provides a right to exclude

competitors").

3. The Balance of Hardships weighs strongly in favor of

granting Plaintiff Injunctive Relief.

As noted above, if the Court is satisfied that Plaintiff has

demonstrated (1) a likelihood of success on the merits, (2) the threat of

irreparable harm if preliminary relief is not granted, and (2) there is no

adequate remedy at law, then it must next consider the harm that

Defendants will suffer if preliminary relief is granted, balancing such harm

against the irreparable harm Plaintiff will suffer if relief is denied. See,

Canon Inc. v. GCC Int'l Ltd., 450 F. Supp. 2d 243, 256. As infringers,

Defendants are entitled to little equitable consideration. “When considering

the balance of hardships between the parties in infringement cases, courts

generally favor the patent owner.” Krause Int’l Inc. v. Reed Elsevier, Inc.,

866 F. Supp. 585, 587-88 (D.D.C. 1994). Therefore, the balance of harms

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“cannot favor a defendant whose injury results from the knowing

infringement of the Plaintiff' patent.” Malarkey-Taylor Assocs., Inc. v.

Cellular Telecomms. Indus. Ass’n, 929 F. Supp. 473, 478 (D.D.C. 1996).

Plaintiff will continue to suffer from their inability to exercise the monopoly

created under the **360 patent.

As Plaintiff has shown, Defendants have been profiting from the sale

of Infringing Products. Thus, the balance of equities tips decisively in

Plaintiff’s favor. As such, equity requires that Defendants be ordered to

cease its unlawful conduct.

4. Issuance of the Injunction is in the Public Interest.

An injunction in these circumstances is in the public interest because

it will prevent consumer confusion and stop Defendants from violating

federal patent law and ensure consumers receive authentic product. The

public is currently under the false impression that Defendants are operating

their Defendant Internet Stores with Plaintiff’s approval and endorsement.

The public's interest in enforcing patent rights must also be weighed

with other aspects of the public interest. Apple Inc. v. Samsung Elecs. Co.,

735 F.3d 1352, 1372 (Fed. Cir. 2013); see also, Shashi, Inc. v. Ramada

Worldwide, Inc., No. 7:05-cv-00016-JGW-mfu, 2005 WL 552593, *4 (W.D.

Va. Mar. 1, 2005) (“It is in the best interest of the public for the court to

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defend the integrity of the intellectual property system and to prevent

consumer confusion”).

In this case, the injury to the public is significant, and the injunctive

relief that Plaintiff seeks is specifically intended to remedy that injury by

dispelling the public confusion created by Defendants’ actions. The public

has the right not to be confused and defrauded as to the source of the goods

and services offered by Defendants, or as to the identity of the owner of

patent and service marks used in connection with those goods and services.

Unless Defendants’ unauthorized use of **360 Trapezoidal Handbag patent

is enjoined, the public will continue to be confused and misled by

Defendants’ conduct.

For these reasons, it is respectfully submitted that granting Plaintiff’s

Motion for Entry of a Temporary Restraining Order is in the public interest.

IV. ARGUMENT.

Rule 65(b) of the Federal Rules of Civil Procedure provides that a

court may issue a temporary restraining order without notice where facts

show that the movant will suffer immediate and irreparable injury, loss, or

damage before the adverse party can be heard in opposition, and the

movant's attorney certifies in writing any efforts made to give notice and

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the reasons why it should not be required. Taaffe v. Robinhood Markets,

Inc., No. 8:20-CV-513-T-36SPF, 2020 WL 1531127, at *7 (M.D. Fla. Mar.

31, 2020). Moreover, under Federal Rule of Civil Procedure 65(d)(2)(c), as

stated above, this Court has the power bind any third parties, such as

financial institutions, who are in active concert with the Defendants or who

aid and abet Defendants and are given actual notice of the order. The facts

in this case warrant such relief.

A. A Temporary Restraining Order Immediately

Enjoining Defendants’ Unauthorized and Unlawful Use of
Plaintiff’ **360 Patent is Appropriate.

Plaintiff’s request a temporary injunction requiring the Defendants to

immediately cease the marketing, sale, importation, and/or distribution of

the Infringing Products, which on information and belief, supported by

evidence herein, in connection with Defendants’ Internet Stores. Such relief

is necessary to stop the ongoing and irreparable harm to Plaintiff’,

continuing infringement of the **360 patent, harm to consumers through

the sale of Infringing Products, and to prevent the Defendants from

continuing to benefit from their infringement of the **360 patent.

The need for ex parte relief is magnified in today’s global economy

where patent infringers manufacturing copycat and knock-off can operate

over the Internet in an anonymous fashion. Plaintiff is currently unaware of

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both true identity and location of the Defendants, as well as other

Defendant Internet Store(s) used to distribute Knock-off ‘Trapezoidal

Handbag’ Products.

Many courts have authorized immediate injunctive relief in similar

cases involving the unauthorized use of an issued patent. See, e.g., Lead

Creation Inc. v. Partnerships & Unincorporated Associations Identified on

Schedule A, No. 8:23-CV-49-CEH-CPT, 2023 WL 1993971, at *5 (M.D. Fla.

Feb. 14, 2023) (“Plaintiff's Ex Parte Motion for Entry of a Temporary

Restraining Order, including a Temporary Injunction, a Temporary Asset

Restraint, and Expedited Discovery … is GRANTED.”); Oakley, Inc. v.

Sunglass Hut International, 316 F.3d 1331, 1338 (Fed. Cir. 2003) (“...

Oakley sued Sunglass Hut on November 6, 2001, for, inter alia,

infringement of the '902 patent , and sought a temporary restraining order

("TRO") … The court entered the TRO on November 20 …”); See also, In re

Vuitton et Fils, S.A., 606 F.2d 1 (2nd Cir. 1979) (holding that ex parte

temporary restraining orders are indispensable to the commencement of an

action when they are the sole method of preserving a state of affairs in

which the court can provide effective final relief.)

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B. Preventing the Fraudulent Transfer of Assets is

Appropriate.
Plaintiff requests an ex parte restraint of Defendants’ assets so that

Plaintiff’ right to an equitable accounting of Defendants’ profits from sales

of Knock-off and Infringing Products is not impaired. Issuing an ex parte

restraint will ensure Defendants’ compliance. If such a restraint is not

granted in this case, Defendants may disregard its responsibilities and

fraudulently transfer financial assets to overseas accounts before a restraint

is ordered. Specifically, upon information and belief, the Defendants in this

case hold most of its assets in China, making it easy to hide or dispose of

assets, which will render an accounting by Plaintiff meaningless.

Courts have the inherent authority to issue a prejudgment asset

restraint when Plaintiff’s complaint seeks relief in equity. Animale Grp. Inc.

v. Sunny’s Perfume Inc., 256 F. App’x 707, 709 (5th Cir. 2007); Levi

Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 987 (11th Cir.

1995); Reebok Int'l Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 559 (9th

Cir. 1992). In addition, Plaintiff has shown a strong likelihood of

succeeding on the merits of its patent infringement claim, so according to

35 U.S.C. § 284, Plaintiff is entitled to “damages adequate to compensate

for the infringement … together with interest and costs … .” Plaintiff’s

Complaint seeks, among other relief, that Defendants account for and pay

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to Plaintiff all profits realized by Defendants by reason of Defendants’

infringing acts. Therefore, this Court has the inherent equitable authority to

grant Plaintiff’s request for a prejudgment asset freeze to preserve the relief

sought by Plaintiff.

The Supreme Court in Grupo Mexicano de Desarrollo, S. A. v.

Alliance Bond Fund, Inc., 527 U.S. 308 (1999), recognized that it was

explicitly allowed to issue a restraint on assets for lawsuits seeking

equitable relief. In Levi Strauss & Co. v. Sunrise Int'l Trading, Inc., 51 F.3d

982, 987 (11th Cir. 1995), the district court had the authority to freeze those

assets which could have been used to satisfy an equitable award of profits.

Plaintiff has shown a likelihood of success on the merits, an

immediate and irreparable harm suffered as a result of Defendants’

activities, and that, unless Defendants’ assets are frozen, Defendants will

likely hide or move its ill-gotten funds to offshore bank accounts.

Accordingly, the granting of an injunction preventing the transfer of

Defendants’ assets is proper.

C. Plaintiff is entitled to Expedited Discovery.

The Supreme Court has held that “federal courts have the power to

order, at their discretion, the discovery of facts necessary to ascertain their

competency to entertain the merits. Watkis v. Payless ShoeSource, Inc., 174

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F.R.D. 113, 116 (M.D. Fla. 1997). With constitutional limits, a district court

has wide latitude in determining whether to grant a party's request for

discovery. Id. (citation omitted). Furthermore, courts have broad power

over discovery and may permit discovery in order to aid in the

identification of unknown defendants. See Fed. R. Civ. P. 26(b)(2);

Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).

As described above, Defendants are using third-party payment

processors, which helps to increase their anonymity by interposing a third

party between the consumer and Defendants. Without being able to

discover Defendants’ bank and payment system accounts, any asset

restraint would be of limited value because Plaintiff would not know the

entities upon whom to serve the order.

Plaintiff respectfully requests expedited discovery to discover bank

and payment system accounts Defendants use for their counterfeit sales

operations. The discovery requested on an expedited basis in Plaintiff’s

Proposed Temporary Restraining Order has been limited to include only

what is essential to prevent further irreparable harm. Discovery of these

financial accounts so that they can be frozen is necessary to ensure that

these activities will be contained.

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Under Federal Rule of Civil Procedure 65(d)(2)(C), this Court has the

power to bind any third party who is in active concert with the Defendants

that is given notice of the order to provide expedited discovery in this

action. Fed. R. Civ. P. 65(d)(2)(C). Plaintiff’s counsel is aware that the same

third parties, in previous lawsuits, have worked with patent owners and is

not aware of any reason that Defendants or third parties cannot comply

with these expedited discovery requests without undue burden. Further, all

relevant third parties have in fact complied with identical requests in

previous similar cases. More importantly, as Defendants have engaged in

many deceptive practices in hiding their identities and accounts, Plaintiff’s

seizure and asset restraint in the Temporary Restraining Order may have

little meaningful effect without the requested relief. Accordingly, Plaintiff

respectfully requests that expedited discovery be granted.

D. Service of Process by E-mail and/or Electronic

Publication is Warranted in this Case.

Pursuant to Federal Rule of Civil Procedure 4(f)(3), Plaintiff requests

this Court’s authorization to serve process by electronically publishing a

link to the Complaint, the Temporary Restraining Order, and other relevant

documents on a website, and/or by sending an e-mail to any e-mail

addresses provided for Defendants by third parties that includes a link to

the website. Plaintiff submits that providing notice via electronic

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publication and/or e-mail, along with any notice that Defendants receive

from a third party such as Amazon, is reasonably calculated under all

circumstances to apprise Defendants of the pendency of the action and

afford them the opportunity to present their objections.

Electronic service is appropriate and necessary in this case because

the Defendants, on information and belief: (1) have provided false name

and physical address information in its registration for the Defendant

Online Marketplace Accounts in order to conceal their locations and avoid

liability for its unlawful conduct; and (2) rely primarily on electronic

communications to communicate with their registrars and customers,

demonstrating the reliability of this method of communication by which the

registrants of Defendants may be apprised of the pendency of this action.

Authorizing service of process solely via e-mail and/or electronic

publication will benefit all parties and the Court by ensuring that

Defendants receive prompt notice of this action, thus allowing this action to

move forward expeditiously. Absent the ability to serve Defendants in this

manner, Plaintiff will almost certainly be left without the ability to pursue a

final judgment.

Past investigation and discovery of Online Marketplace Accounts in

similar cases reveals that Defendants appear to have provided false physical

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address information to the online Marketplaces in order to avoid full

liability. DeWitty Decl. Identical contact information among multiple seller

accounts also suggests that many of the aliases used to register the

Defendant accounts are used by the same individual or entity. DeWitty

Decl.

Federal Rule of Civil Procedure 4(f)(3) allows this Court to authorize

service of process by any means not prohibited by international agreement

as the Court directs. See, In re Oneplus Tech. (Shenzhen) Co., No. 2021-165,

at *6 (Fed. Cir. Sep. 10, 2021) (“however, Rule 4(f)(3) is not a "last resort"

or a type of "extraordinary relief" for a plaintiff seeking to serve process on

a foreign defendant”); See also, Rio Props., Inc. v. Rio Int'l Interlink, 284

F.3d 1007, 1015 (9th Cir. 2002). (“To the contrary, "Rule 4(f)(3) is not

subsumed within or in any way dominated by Rule 4(f)'s other subsections;

it stands independently, on equal footing."”). The Ninth Circuit in Rio

Properties held, “without hesitation,” that e-mail service of an online

business defendant “was constitutionally acceptable.” Rio Props., at 1017.

The Court reached this conclusion, in part, because the defendant

conducted its business over the Internet, used e-mail regularly in its

business, and encouraged parties to contact it via e-mail. Id.

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Plaintiff submits that allowing service solely by e-mail and/or

electronic publication in the present case is appropriate and comports with

constitutional notions of due process, particularly given the decision by the

registrants of Defendants to conduct their Internet- based activities

anonymously.

Furthermore, Rule 4 does not require that a party attempt service of

process by other methods enumerated in Rule 4(f) before petitioning the

court for alternative relief under Rule 4(f)(3). Rio Props. v. Rio Intern.

Interlink, 284 F.3d 1007, 1014-15 (9th Cir. 2002). As the Rio Properties

Court explained, Rule 4(f) does not create a hierarchy of preferred methods

of service of process. Id. at 1014. To the contrary, the plain language of the

Rule requires only that service be directed by the court and not be

prohibited by international agreement. There are no other limitations or

requirements. Id. Alternative service under Rule 4(f)(3) is neither a “last

resort” nor “extraordinary relief,” but is rather one means among several by

which an international defendant may be served. Id. As such, this Court

may allow Plaintiff to serve the Defendants via electronic publication

and/or e-mail.

Plaintiff respectfully requests this Court’s permission to serve

Defendant via e-mail and/or electronic publication.

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V. A BOND SHOULD SECURE THE INJUNCTIVE RELIEF.

The posting of security upon issuance of a temporary restraining

order or preliminary injunction is vested in the Court’s sound discretion.

Rathmann Grp. v. Tanenbaum, 889 F.2d 787, 789 (8th Cir. 1989); Hoechst

Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 (4th Cir. 1999); Fed.

R. Civ. P. 65(c). It is well established in the Second Circuit that Rule 65(c)

invests the district court wide discretion as to the amount of security

required, lf any. See, Doctor’.s Assocs. v. Distajo, 107 F.3d 126, 136 (2d Cir.

1997). Because of the strong and unequivocal nature of Plaintiff’ evidence of

counterfeiting, and infringement. Plaintiff respectfully request that this

Court require Plaintiff to post a bond of no more than Ten Thousand U.S.

Dollars ($10,000.00). See, e.g., Complete Angler, LLC v. City of

Clearwater, Fla., 607 F. Supp. 2d 1326, 1329 (M.D. Fla. 2009).

VI. CONCLUSION.

In view of the foregoing and consistent with previous similar cases,

Plaintiff respectfully request that this Court enter a Temporary Restraining

Order in the form submitted herewith and set a status hearing before the

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expiration of the Temporary Restraining Order at which hearing Plaintiff

intend to present a motion for preliminary injunction.

DATED: December 13, 2023 Respectfully submitted,

Robert M. DeWitty
DeWitty and Associates
712 H Street, NE
PMB 97684
Washington, D.C. 20002
Attorney for Plaintiff

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