Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 1 of 20
`
`Jason M. Drangel (JD 7204)
`jdrangel@ipcounselors.com
`Ashly E. Sands (AS 7715)
`asands@ipcounselors.com
`Brieanne Scully (BS 3711)
`bscully@ipcounselors.com
`Danielle S. Yamali (DY 4228)
`dfutterman@ipcounselors.com
`EPSTEIN DRANGEL LLP
`60 East 42nd Street, Suite 2520
`New York, NY 10165
`Telephone:
`(212) 292-5390
`Facsimile:
`(212) 292-5391
`Attorneys for Plaintiff
`Mattel, Inc.
`
`2/22/21
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Civil Case No.:
`
`1) TEMPORARY RESTRAINING
`ORDER; 2) ORDER
`RESTRAINING MERCHANT
`STOREFRONTS AND
`DEFENDANTS’ ASSETS WITH
`THE FINANCIAL
`INSTITUTIONS; 3) ORDER TO
`SHOW CAUSE WHY A
`PRELIMINARY INJUNCTION
`SHOULD NOT ISSUE; 4) ORDER
`AUTHORIZING BIFURCATED
`AND ALTERNATIVE SERVICE;
`AND 5) ORDER AUTHORIZING
`EXPEDITED DISCOVERY
`
`FILED UNDER SEAL
`
`MATTEL, INC.,
`
`Plaintiff
`
`v.
`
`AGOGO STORE, CHIYOU TOY STORE, DEHUA
`BEAUTY RICH ARTS & CRAFTS CO., LTD.,
`DISNEYS TOY STICKERS STORE, DRAGONMODEL
`STORE,
`FUN CHILDHOOD
`TOY
`STORE,
`GUANGZHOU
`INFINITY
`AMUSEMENT
`EQUIPMENT CO., LTD., GUANGZHOU YUEDONG
`INFLATABLE PRODUCTS CO., LTD., HASTING
`TOY
`STORE, HENAN TONG QU
`PARK
`AMUSEMENT EQUIPMENT CO., LTD., KIDS FUN
`TOY STORE, KIRINCARTOON STORE, ORAY
`INTERNATIONAL
`TRADING
`CO.,
`LTD.,
`QUANZHOU
`DONGSHANG
`CLOTHING &
`ACCESSORIES CO., LTD., RISE TOP TOYS
`LIMITED, SHANTOU CHENGHAI BLUE DEER TOY
`CO., LTD., SHENZHEN ENJOY INFLATABLES CO.,
`LTD., SHOP5633041 STORE, SHOP5785180 STORE,
`SHOP910716070
`STORE,
`SIMBOO
`STORE,
`SIMCASTLE STORE, THONAS BABY TOY STORE,
`TIK TOK STORE, TOBAY TOY STORE, XIAMEN
`MINE TRADING CO., LTD., XINGTAI JIUDA BIKE
`CO., LTD., YIWU OUNY TRADING CO., LTD. and
`YIWU
`YOHE
`E-COMMERCE
`FIRM,
`
`Defendants
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 2 of 20
`
`Term
`Plaintiff or Mattel
`Defendants
`
`Alibaba
`
`AliExpress
`
`Epstein Drangel
`New York Address
`
`Complaint
`Application
`
`GLOSSARY
`
`Definition
`Mattel, Inc.
`Agogo Store, ChiYou Toy Store, Dehua Beauty Rich
`Arts & Crafts Co., Ltd., Disneys toy stickers Store,
`DragonModel Store, Fun Childhood Toy Store,
`Guangzhou Infinity Amusement Equipment Co., Ltd.,
`Guangzhou Yuedong Inflatable Products Co., Ltd.,
`Hasting Toy Store, Henan Tong Qu Park Amusement
`Equipment Co., Ltd., Kids Fun Toy Store,
`KirinCartoon Store, Oray International Trading Co.,
`Ltd., Quanzhou Dongshang Clothing & Accessories
`Co., Ltd., RISE TOP TOYS LIMITED, Shantou
`Chenghai Blue Deer Toy Co., Ltd., Shenzhen Enjoy
`Inflatables Co.,
`Ltd.,
`Shop5633041
`Store,
`Shop5785180 Store, Shop910716070 Store, Simboo
`Store, SimCastle Store, Thonas Baby Toy Store, TIK
`TOK Store, Tobay Toy Store, Xiamen MINE Trading
`Co., Ltd., Xingtai Jiuda Bike Co., Ltd., Yiwu Ouny
`Trading Co., Ltd. and Yiwu Yohe E-Commerce Firm
`Alibaba.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
`Aliexpress.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
`Epstein Drangel LLP, counsel for Plaintiff
`244 Madison Ave, Suite 411, New York, New York
`10016
`Plaintiff’s Complaint filed on February 17, 2021
`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
`February 17, 2021
`
`i
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 3 of 20
`
`Reichenberger Dec.
`
`Drangel Dec.
`
`Thomas the Tank
`Engine
`
`Thomas & Friends
`Products
`
`Thomas & Friends
`Marks
`
`Thomas & Friends
`Works
`
`Counterfeit Products
`
`Infringing Listings
`User Accounts
`
`Declaration of Diane Reichenberger in Support of
`Plaintiff’s Application
`Declaration of Jason M. Drangel in Support of
`Plaintiff’s Application
`A blue, cheery anthropomorphic steam engine that
`encourages his fellow trains to be the best they can be,
`and imparts lessons about friendship, altruism and
`perseverance
`A vast range of commercial products, including trains
`and tracks, games, puzzles and books sold under the
`Thomas and Friends brand
`U.S. Trademark Registration Nos.: 3,799,968 for
`
` for a variety of goods in Classes 9,
`16, 24, 25 and 28; 3,085,762 for “THOMAS &
`FRIENDS” for a variety of goods in Classes 9, 16, 25,
`28; and 3,531,151 for “THOMAS & FRIENDS” for a
`variety of goods in Classes 18, 20, 21 and 29
`U.S. Copyright Reg. Nos.: PA 1-930-773, covering
`Thomas & Friends: The Thomas Way; TX 7-953-676,
`covering Thomas & Friends: Story Time Collection;
`TX 7-973-191, covering Thomas & Friends: Special
`Delivery (Lift-a-Flap Sound Book); TX 7-973-196,
`covering Thomas & Friends: Railway Race Day (Lift-
`a-Flap Sound Book); TX 7-973-208, covering Thomas
`& Friends: I’m Ready to Read with Thomas (Play-a-
`Sound book); TX 7-985-398, covering Thomas &
`Friends: I Can Help Thomas (Play-a-Sound book); TX
`7-992-119, covering Thomas & Friends: Nine Favorite
`Tales (Little Golden Book Collection); TX 8-149-304,
`covering Thomas & Friends: Books & Blocks; and TX
`4-442-061, covering Thomas the Tank Engine
`Products bearing or used in connection with the
`Thomas & Friends Marks and/or Thomas & Friends
`Works, and/or products in packaging and/or containing
`labels bearing the Thomas & Friends Marks and/or
`Thomas & Friends Works, and/or bearing or used in
`connection with marks and/or artwork
`that are
`confusingly or substantially similar to the Thomas &
`Friends Marks and/or Thomas & Friends Works and/or
`products
`that are
`identical or confusingly or
`substantially similar to the Thomas & Friends Products
`Defendants’ listings for Counterfeit Products
`Any and all websites and any and all accounts with
`online marketplace platforms such as Alibaba,
`AliExpress, as well as any and all as yet undiscovered
`accounts with additional online marketplace platforms
`
`ii
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 4 of 20
`
`Defendants’ Assets
`
`Defendants’ Financial
`Accounts
`
`held by or associated with Defendants, their respective
`officers, employees, agents, servants and all persons in
`active concert or participation with any of them
`Merchant Storefronts 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 banks, financial institutions, credit card companies
`and payment processing agencies, such as PayPal Inc.
`(“PayPal”), Payoneer Inc. (“Payoneer”), the Alibaba
`Group d/b/a Alibaba.com payment services (e.g.,
`Alipay.com Co., Ltd., Ant Financial Services Group),
`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 Alibaba, AliExpress, 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
`
`Financial Institutions
`
`Third Party Service
`Providers
`
`iii
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 5 of 20
`
`On this day, the Court considered Plaintiff’s ex parte application 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 against Defendants, Third Party Service Providers and Financial Institutions
`
`in light of Defendants’ intentional and willful offerings for sale and/or sales of Counterfeit
`
`Products.1 A complete list of Defendants is attached hereto as Schedule A, which also includes links
`
`to Defendants’ Merchant Storefronts and Infringing Listings. Having reviewed the Application,
`
`Declarations of Diane Reichenberger and Jason M. Drangel, along with exhibits attached thereto
`
`and other evidence submitted in support thereof, the Court makes the following findings of fact
`
`and conclusions of law:
`
`FACTUAL FINDINGS & CONCLUSIONS OF LAW
`
`1.
`
`Mattel is a leading designer, developer, marketer, manufacturer and distributor of
`
`well-known children’s toys and games under its iconic brands, including, but not limited to: Thomas
`
`& Friends, Barbie, UNO, Hot Wheels, American Girl and Fisher-Price;
`
`2.
`
`Mattel sells its Mattel Products worldwide through major retailers, quality toy stores
`
`and online marketplaces, including, but not limited to: Wal-Mart, Target Stores, Walgreens, Amazon
`
`and many others;
`
`3.
`
`One of Mattel’s most popular and successful brands is Thomas and Friends,
`
`which features the main character Thomas the Tank Engine as a blue, cheery anthropomorphic
`
`steam engine;
`
`4.
`
`While Mattel has gained significant common law trademark and other rights in its
`
`1 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
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 6 of 20
`
`Thomas & Friends Products through use, advertising and promotion, Mattel and its predecessors in
`
`interest have also protected these valuable rights by obtaining federal trademark registrations;
`
`5.
`
`For example, Mattel, through its wholly-owned subsidiary Gullane (Thomas)
`
`Limited, is the owner and/or licensee of U.S. Trademark Reg. Nos.: 3,799,968 for
`
` for a variety of goods in Classes 9, 16, 24, 25 and 28; 3,085,762 for “THOMAS
`
`& FRIENDS” for a variety of goods in Classes 9, 16, 25 and 28; and 3,531,151 for “THOMAS &
`
`FRIENDS” for a variety of goods in Classes 18, 20, 21 and 29;
`
`6.
`
`In addition, Mattel is also the owner and/or licensee of both registered and
`
`unregistered copyrights in and related to the Thomas & Friends Products;
`
`7.
`
`For example, Mattel, through its wholly-owned subsidiary Gullane (Thomas)
`
`Limited, is the owner and/or licensee of U.S. Copyright Reg. Nos.: PA 1-930-773, covering
`
`Thomas & Friends: The Thomas Way; TX 7-953-676, covering Thomas & Friends: Story Time
`
`Collection; TX 7-973-191, covering Thomas & Friends: Special Delivery (Lift-a-Flap Sound
`
`Book); TX 7-973-196, covering Thomas & Friends: Railway Race Day (Lift-a-Flap Sound Book);
`
`TX 7-973-208, covering Thomas & Friends: I’m Ready to Read with Thomas (Play-a-Sound
`
`book); TX 7-985-398, covering Thomas & Friends: I Can Help Thomas (Play-a-Sound book); TX
`
`7-992-119, covering Thomas & Friends: Nine Favorite Tales (Little Golden Book Collection); TX
`
`8-149-304, covering Thomas & Friends: Books & Blocks; and TX 4-442-061, covering Thomas
`
`the Tank Engine;
`
`8.
`
`Defendants are manufacturing, importing, exporting, advertising, marketing,
`
`promoting, distributing, displaying, offering for sale or Counterfeit Product through Defendants’
`
`User Accounts and Merchant Storefronts with Alibaba and/or AliExpress (see Schedule A for
`
`links to Defendants’ Merchant Storefronts and Infringing Listings);
`
`2
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 7 of 20
`
`9.
`
`Alibaba and AliExpress are online marketplaces and e-commerce platforms, which
`
`allow manufacturers and other third-party merchants, like Defendants, to advertise, distribute,
`
`offer for sale, sell and ship their retail products, which, upon information and belief, primarily
`
`originate from China, directly to consumers worldwide and specifically to consumers residing in
`
`the U.S., including New York;
`
`10.
`
`Defendants are not, nor have they ever been, authorized distributors or licensees of
`
`the Thomas & Friends Products. Neither Plaintiff, nor any of Plaintiff’s authorized agents, have
`
`consented to Defendants’ use of the Thomas & Friends Marks or Thomas & Friends Works, nor
`
`has Plaintiff consented to Defendants’ use of marks or artwork that are confusingly or substantially
`
`similar to, identical to and constitute a counterfeiting or infringement of the Thomas & Friends
`
`Marks and Thomas & Friends Works;
`
`11.
`
`Plaintiff is likely to prevail on its Lanham Act, Copyright Act and related common
`
`law claims at trial;
`
`12.
`
`As a result of Defendants’ infringements, Plaintiff, as well as consumers, are likely
`
`to suffer immediate and irreparable losses, damages and injuries before Defendants can be heard
`
`in opposition, unless Plaintiff’s Application for ex parte relief is granted:
`
`a. Defendants have offered for sale and sold substandard Counterfeit Products that
`
`infringe the Thomas & Friends Marks and Thomas & Friends Works;
`
`b. Plaintiff has well-founded fears that more Counterfeit Products will appear in the
`
`marketplace; that consumers may be misled, confused and disappointed by the quality
`
`of these Counterfeit Products, resulting in injury to Plaintiff’s reputation and
`
`goodwill; and that Plaintiff may suffer loss of sales for its Thomas & Friends
`
`Products; and
`
`c. Plaintiff has well-founded fears that if it proceeds on notice to Defendants on this
`
`Application, Defendants will: (i) secret, conceal, destroy, alter, sell-off, transfer or
`
`3
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 8 of 20
`
`otherwise dispose of or deal with Counterfeit Products or other goods that infringe
`
`the Thomas & Friends Marks and Thomas & Friends Works, the means of obtaining
`
`or manufacturing such Counterfeit Products, and records relating thereto that are in
`
`their possession or under their control, (ii) inform their suppliers and others of
`
`Plaintiff’s claims with the result being that those suppliers and others may also secret,
`
`conceal, sell-off or otherwise dispose of Counterfeit Products or other goods
`
`infringing the Thomas & Friends Marks and Thomas & Friends Works, the means of
`
`obtaining or manufacturing such Counterfeit Products, and records relating thereto
`
`that are in their possession or under their control, (iii) secret, conceal, transfer or
`
`otherwise dispose of their ill-gotten proceeds from its sales of Counterfeit Products
`
`or other goods infringing the Thomas & Friends Marks and Thomas & Friends Works
`
`and records relating thereto that are in their possession or under their control and/or
`
`(iv) open new User Accounts and Merchant Storefront under new or different names
`
`and continue to offer for sale and sell Counterfeit Products with little to no
`
`consequence;
`
`13.
`
`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, the goodwill and reputation built up in
`
`and associated with the Thomas & Friends Marks and Thomas & Friends Works and to its
`
`reputations if a temporary restraining order is not issued;
`
`14.
`
`Public interest favors issuance of the temporary restraining order in order to protect
`
`Plaintiff’s interests in and to its Thomas & Friends Marks and Thomas & Friends Works, and to
`
`protect the public from being deceived and defrauded by Defendants’ passing off of their
`
`substandard Counterfeit Products as Thomas & Friends Products;
`
`15.
`
`Plaintiff has not publicized its request for a temporary restraining order in any way;
`
`4
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 9 of 20
`
`16.
`
`Service on Defendants via electronic means is reasonably calculated to result in
`
`proper notice to Defendants.
`
`17.
`
`If Defendants are given notice of the Application, they are likely to secret, conceal,
`
`transfer or otherwise dispose of their ill-gotten proceeds from their sales of Counterfeit Products
`
`or other goods infringing the Thomas & Friends Marks and Thomas & Friends Works. Therefore,
`
`good cause exists for granting Plaintiff’s request for an asset restraining order. It typically takes
`
`the Financial Institutions a minimum of five (5) days after service of the Order to locate, attach
`
`and freeze Defendants’ Assets and/or Defendants’ Financial Accounts and it is anticipated that it
`
`will take the Third Party Service Providers a minimum of five (5) days to freeze Defendants’
`
`Merchant Storefronts. As such, the Court allows enough time for Plaintiff to serve the Financial
`
`Institutions and Third Party Service Providers with this Order, and for the Financial Institutions
`
`and Third Party Service Providers to comply with the Paragraphs I(B)(1) through I(B)(2) and
`
`I(C)(1) of this Order, respectively, before requiring service on Defendants.
`
`18.
`
`Similarly, if Defendants are given notice of the Application, they are likely to
`
`destroy, move, hide or otherwise make inaccessible to Plaintiff the records and documents relating
`
`to Defendants’ manufacturing, importing, exporting, advertising, marketing, promoting,
`
`distributing, displaying, offering for sale and/or sale of Counterfeit Products. Therefore, Plaintiff
`
`has good cause to be granted expedited discovery.
`
`ORDER
`Based on the foregoing findings of fact and conclusions of law, Plaintiff’s Application is
`
`hereby GRANTED as follows:
`
`Temporary Restraining Order
`I.
`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 for fourteen
`
`5
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 10 of 20
`
`(14) days from the date of this Order, and for such further period as may be provided by order
`
`of this Court:
`
`1)
`
`manufacturing, importing, exporting, advertising, marketing, promoting, distributing,
`
`displaying, offering for sale, selling and/or otherwise dealing in Counterfeit Products,
`
`or any other products bearing the Thomas & Friends Marks and/or Thomas & Friends
`
`Works and/or marks or artwork that are confusingly or substantially similar to, identical
`
`to and constitute a counterfeiting or infringement of the Thomas & Friends Marks and
`
`Thomas & Friends Works;
`
`2)
`
`3)
`
`directly or indirectly infringing in any manner Plaintiff’s Thomas & Friends Marks
`
`and/or Thomas & Friends Works;
`
`using any reproduction, counterfeit, copy or colorable imitation of Plaintiff’s Thomas
`
`& Friends Marks and/or Thomas & Friends Works to identify any goods or service not
`
`authorized by Plaintiff;
`
`4)
`
`using Plaintiff’s Thomas & Friends Marks and/or Thomas & Friends Works and/or any
`
`other marks or artwork that are confusingly or substantially similar to the Thomas &
`
`Friends Mark and Thomas & Friends Works on or in connection with Defendants’
`
`manufacturing, importing, exporting, advertising, marketing, promoting, distributing,
`
`offering for sale, selling and/or otherwise dealing in Counterfeit Products;
`
`5)
`
`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,
`
`6
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 11 of 20
`
`marketed, promoted, distributed, displayed, offered for sale or sold by Defendants and
`
`Defendants’ commercial activities and Plaintiff;
`
`6)
`
`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;
`
`7)
`
`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
`
`8)
`
`knowingly instructing any other person or business entity to engage in any of the
`
`activities referred to in subparagraphs I(A)(1) through I(A)(7) above and I(B)(1)
`
`through I(B)(2) and I(C)(1) below.
`
`B. IT IS HEREBY ORDERED, as sufficient cause has been shown, that the Third Party Service
`
`Providers and Financial Institutions are hereby restrained and enjoined from engaging in any of
`
`the following acts or omissions for fourteen (14) days from the date of this order, and for such
`
`further period as may be provided by order of the Court:
`
`1) secreting, concealing, transferring, disposing of, withdrawing, encumbering or paying
`
`Defendants’ Assets from or to Defendants’ Financial Accounts until further ordered by this
`
`Court;
`
`2) 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
`
`7
`
`

`

`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 12 of 20
`
`records or evidence relating to Defendants’ Assets and Defendants’ Financial Accounts;
`
`and
`
`3) knowingly instructing any person or business entity to engage in any of the activities
`
`referred to in subparagraphs I(A)(I) through I(A)(7) and I(B)(1) through I(B)(2) above and
`
`I(C)(1) below.
`
`C. IT IS HEREBY ORDERED, as sufficient cause has been shown, that the Third Party Service
`
`Providers are hereby restrained and enjoined from engaging in any of the following acts or
`
`omissions for fourteen (14) days from the date of this order, and for such further period as may be
`
`provided by order of the Court:
`
`1) within five (5) days after receipt of service of this Order, providing services to Defendants,
`
`Defendants’ User Accounts and Defendants’ Merchant Storefronts, including, without
`
`limitation, continued operation of Defendants’ User Accounts and Merchant Storefronts;
`
`and
`
`2) knowingly instructing any other person or business entity to engage in any of the activities
`
`referred to in subparagraphs I(A)(1) through I(A)(7), I(B)(1) through I(B)(2) and I(C)(1)
`
`above.
`
`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 on
`March 8, 2021
`1:00 p.m.
`_________________________, 2021 at _________ __why a preliminary injunction,
`
`pursuant to Fed. R. Civ. P. 65(a), should not issue. The show cause hearing will proceed by
`
`teleconference and the Court will provide access information in a subsequent order.
`
`B. IT IS FURTHER ORDERED that opposing papers, if any, shall be filed electronically with
`
`the Court and served on Plaintiff’s counsel by delivering copies thereof to the office of Epstein
`
`8
`
`

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`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 13 of 20
`
`Drangel LLP at 60 East 42nd Street, Suite 2520, New York, NY 10165, Attn: Jason M. Drangel
`
`February 25
`on or before_____________________, 2021. Plaintiff shall file any Reply papers on or before
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`March 4
`_______________________, 2021.
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`C. IT IS FURTHER ORDERED that Defendants are hereby given notice that failure to appear at
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`the show cause hearing scheduled in Paragraph II(A) above may result in the imposition of a
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`preliminary injunction against them pursuant to Fed. R. Civ. P. 65, which may take effect
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`immediately upon the expiration of this Order, and may extend throughout the length of the
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`litigation under the same terms and conditions set forth in this Order.
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`Asset Restraining Order
`III.
`A. IT IS FURTHER ORDERED pursuant to Fed. R. Civ. P. 64 and 65 and N.Y. C.P.L.R. 6201
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`and this Court’s inherent equitable power to issue provisional remedies ancillary to its authority
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`to provide final equitable relief, as sufficient cause has been shown, that within five (5) days
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`of receipt of service of this Order, the Financial Institutions shall locate and attach Defendants’
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`Financial Accounts and shall provide written confirmation of such attachment to Plaintiff’s
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`counsel.
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`IV. Order Authorizing Bifurcated and Alternative Service by Electronic Means
`A. IT IS FURTHER ORDERED pursuant to Fed. R. Civ. P. 4(f)(3), as sufficient cause has been
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`shown, that service may be made on, and shall be deemed effective as to Defendants if it is
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`completed by the following means:
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`1)
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`delivery of: (i) PDF copies of this Order together with the Summons and Complaint, or
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`(ii) a link to a secure website (including NutStore, a large mail link created through
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`Rmail.com and via website publication through a specific page dedicated to this
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`Lawsuit accessible through ipcounselorslawsuit.com) where each Defendant will be
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`able to download PDF copies of this Order together with the Summons and Complaint,
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`and all papers filed in support of Plaintiff’s Application seeking this Order to
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`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 14 of 20
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`Defendants’ e-mail addresses to be determined after having been identified by Alibaba
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`and/or AliExpress pursuant to Paragraph V(C); or
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`2)
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`delivery of a message to Defendants through the system for communications
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`established by the Third Party Service Providers on their respective platforms,
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`notifying Defendants that an action has been filed against them in this Court and
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`providing a link to a secure website (such as NutStore or a large mail link created
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`through Rmail.com) where each Defendant will be able to download PDF copies of
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`this Order together with the Summons and Complaint, and all papers filed in support
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`of Plaintiff’s Application seeking this Order.
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`B. IT IS FURTHER ORDERED, as sufficient cause has been shown, that such alternative service
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`by electronic means ordered herein shall be deemed effective as to Defendants, Third Party
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`Service Providers and Financial Institutions through the pendency of this action.
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`C. IT IS FURTHER ORDERED, as sufficient cause has been shown, that such alternative service
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`by electronic means ordered herein shall be made within five (5) days of the Financial
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`Institutions and Third Party Service Providers’ compliance with Paragraphs III(A) and V(C)
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`of this Order.
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`D. IT IS FURTHER ORDERED, as sufficient cause has been shown, that the Clerk of the Court
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`shall issue a single original summons directed to all Defendants as listed in an attachment to
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`the summons that will apply to all Defendants.
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`E. IT IS FURTHER ORDERED, as sufficient cause has been shown, that service may be made
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`and shall be deemed effective as to the following if it is completed by the below means:
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`1) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where PayPal
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`Inc. will be able to download a PDF copy of this Order via electronic mail to PayPal Legal
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`Specialist at EEOMALegalSpecialist@paypal.com;
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`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 15 of 20
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`2) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where AliPay.com
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`Co., Ltd., Ant Financial Services will be able to download a PDF copy of this Order via
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`electronic mail Mr. Di Zhang, Member of the Legal & Compliance Department – IP, at
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`di.zd@alipay.com;
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`3) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where Alibaba
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`will be able to download a PDF copy of this Order via electronic mail to Chloe He, Alibaba
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`Group at chloe.he@alibaba-inc.com;
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`4) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where Payoneer
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`Inc. will be able to download a PDF copy of this Order via electronic mail to Payoneer
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`Inc.’s Customer Service Management at customerservicemanager@payoneer.com and
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`Edward Tulin, counsel for Payoneer Inc., at Edward.Tulin@skadden.com; and
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`5) delivery of: (i) a PDF copy of this Order, or (ii) a link to a secure website where PingPong
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`Global Solutions Inc. will be able to download a PDF copy of this Order via electronic mail
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`to PingPong Global Solutions Inc.’s Legal Department legal@pingpongx.com.
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`V. Order Authorizing Expedited Discovery
`A. IT IS FURTHER ORDERED, as sufficient cause has been shown, that:
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`1) Within fourteen (14) days after receiving service of this Order, each Defendant shall serve
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`upon Plaintiff’s counsel a written report under oath providing:
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`a.
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`b.
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`their true name and physical address;
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`the name and location and URL of any and all websites that Defendants own and/or
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`operate and the name, location, account numbers and URL for any and all User
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`Accounts and Merchant Storefronts on any Third Party Service Provider platform
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`that Defendants own and/or operate;
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`Case 1:21-cv-01507-AJN Document 19 Filed 03/18/21 Page 16 of 20
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`c.
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`the complete sales records for any and all sales of Counterfeit Products, including
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`but not limited to number of units sold, the price per unit, total gross revenues
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`received (in U.S. dollars) and the dates thereof;
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`d.
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`the account details for any and all of Defendants’ Financial Accounts, including,
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`but not limited to, the account numbers and current account balances; and
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`e.
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`the steps taken by each Defendant, or other person served to comply with Section
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`I, above.
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`2) Plaintiff may serve interrogatories pursuant to Rules 26 and 33 of the Federal Rules of
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`Civil Procedure as well as Local Civil Rule 33.3 of the Local Rules for the Southern and
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`Eastern Districts of New York and Defendants who are served with this Order shall provide
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`written responses under oath to such interrogatories within fourteen (14) days of service to
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`Plaintiff’s counsel.
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`3) Plaintiff may serve requests for the production of documents pursuant to Fed. R. Civ. P. 26
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`and 34, and Defendants who are served with this Order and the requests for the production
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`of documents shall produce all documents responsive to such requests within fourteen (14)
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`days of service to Plaintiff’s counsel.
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`B. IT IS FURTHER ORDERED, as sufficient cause has been shown, that within five (5) days of
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`receipt of service of this Order the Financial Institutions shall identify any and all of
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`Defendants’ Financial Accounts, and provide Plaintiff’s counsel with a summary report
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`containing account details for any and all such accounts, which shall include, at a minimum,
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`identifying information for Defendants, including contact information for Defendants
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`(including, but not limited to, mailing addresses and e-mail addresses), account numbers and
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`account balances for any and all of Defendants’ Financial