Case 2:23-cv-01840-WSS Document 62 Filed 11/27/23 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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`AFG MEDIA LTD,
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`Plaintiff,
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`v.
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`THE PARTNERSHIPS AND
`UNINCORPORATED ASSOCIATIONS
`IDENTIFIED ON SCHEDULE A,
`Defendants.
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`Case No. 2:23-cv-1840-WSS
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`Honorable Judge William S. Stickman
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`DEFENDANT CAMLINBO’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION
`FOR PRELIMINARY INJUNCTION (DKT. NO. 28)
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`Defendant Camlinbo (“Defendant”) respectfully submits this Response in Opposition to
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`Plaintiff’s Motion for Preliminary Injunction (Dkt. No. 28).
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`I.
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`INTRODUCTION
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`The Court should not grant a Preliminary Injunction (“PI”) for Plaintiff. Plaintiff failed to
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`meet its burden of persuasion on each and every element in obtaining a preliminary injunction against
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`Defendant. Particularly, inter alia, it has failed to show that it has a valid copyright, that Defendant
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`copied any of Plaintiff’s work, and that Plaintiff will suffer any irreparable harm.
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`Furthermore, even if the Court grants a preliminary injunction against Defendant, it should
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`cap the asset restraint amount to no more than $88,749, representing the maximum equitable remedy
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`Plaintiff can claim in this case. At the same time, Plaintiff should be required to post a significant
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`bond in the amount of at least $1,000,000.
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`II.
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`STATEMENT OF FACTS AND PROCEDURAL HISTORY
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`1
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`Case 2:23-cv-01840-WSS Document 62 Filed 11/27/23 Page 2 of 11
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`This action stems from a claim of copyright infringement filed by Plaintiff AFG MEDIA
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`LIMITED (“Plaintiff”) against Defendant and other sellers on October 24, 2023. Dkt. No. 2
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`(Plaintiff’s “Complaint”). The copyrights asserted by Plaintiff include one copyrighted work: U.S.
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`Copyright Registration No.: VA 2-261-150, title of work “Carried by Alien “Pick me Up” Inflatable
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`Costume. Dkt. No. 2-6.
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`Defendant is an Amazon stores operated by a Chinese individual Lin Hui Lv. Among many
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`other unrelated goods, Defendant sold a type of costumes as shown below (“Accused Products”):
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`Dkt. No. 13-1 at 9-15.
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`Upon Plaintiff’s unilateral request, the Court issued a Temporary Injunction Order (“TRO”)
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`on October 24, 2023, and ordered to show cause why a preliminary injunction should not be issued.
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`Dkt. No. 20. The total restrained amount of Defendant because of the TRO is currently about
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`$250,000. Declaration of Lin Hui Lv (“Lv Decl.”) at ¶ 6, attached hereto as Exhibit A. Defendant is
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`having a hardship operating in any means as the TRO restrains the entire store’s financial account.
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`See Id. at ¶¶ 7&8. Defendant cannot effectively operate the store anymore, as it cannot use the money
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`for refunds, past-due to their suppliers, and employee salaries etc. Id. On October 31, 2023, Plaintiff
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`moved the Court for a preliminary injunction. Dkt. No. 281.
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`1 Defendant’s response to Plaintiff’s motion for a preliminary injunction was originally due by
`November 24, 2023. Dkt. No. 30. The Parties stipulated to extend it to November 27, 2023, in light
`of the holidays.
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`2
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`Case 2:23-cv-01840-WSS Document 62 Filed 11/27/23 Page 3 of 11
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`III. ARGUMENT AND AUTHORITIES
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`A. Legal Standards Regarding Preliminary Injunction Orders.
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`A preliminary injunction is “an extraordinary remedy,” and “should be granted only in limited
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`circumstances.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). A movant
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`seeking a preliminary injunction must establish (1) “that he is likely to succeed on the merits,” (2)
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`“that he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance
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`of equities tips in his favor, and” (4) “that an injunction is in the public interest.” Winter v. Nat. Res.
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`Def. Council, Inc., 555 U.S. 7, 20 (2008). As the Supreme Court has noted, a preliminary injunction
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`is “a drastic remedy, one that should not be granted unless the movant, by a clear showing, carries
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`the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (cleaned up). Plaintiff
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`carries the burden to establish each element for a preliminary injunction in its favor. P.C. Yonkers,
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`Inc. v. Celebrations the Party Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir. 2005). A
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`plaintiff’s “failure to establish any element . . . renders a preliminary injunction inappropriate.”
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`NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999).
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`The first two elements are the “most critical” elements. Reilly v. City of Harrisburg, 858 F.3d
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`173, 179 (3d Cir. 2017). The Third Circuit has explained that the first element, likelihood of success
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`on the merits, “requires a showing significantly better than negligible, but not necessarily more likely
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`than not.” Id. The second element, irreparable harm in the absence of preliminary relief, requires a
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`showing that irreparable harm is “more likely than not.” Id. If the movant meets these “gateway
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`factors,” “a court then considers the remaining two factors and determines in its sound discretion if
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`all four factors, taken together, balance in favor of granting the requested preliminary relief.” Id. .
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`B. Plaintiff Is Unlikely to Succeed on the Merits of Its Copyright Claim.
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`3
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`A copyright-infringement claim has three elements: ownership of a valid copyright, actual
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`copying, and substantial similarity. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
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`(1991); Dam Things from Denmark v. Russ Berrie & Co., 290 F.3d 548, 561-62 (3d Cir. 2002).
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`a. Plaintiff’s Copyright Is Not Valid.
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`Plaintiff does not have a valid copyright because Plaintiff’s work is not copyrightable. As
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`Plaintiff claimed, and the Court recognized when issuing the TRO, the work asserted by Plaintiff is
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`the “Alien Costume Sculpture.” Dkt. No. 20 at 10. However, the Copyright Certificate shows the title
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`of Plaintiff’s work is “Carried by Alien [‘] Pick me Up[’] Inflatable Costume.” Dkt. No. 2-6 at 1. The
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`Copyright Act does not define the term “sculpture.” However, at least one circuit court has found that
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`costume is not sculpture. See Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452 (2d Cir. 1989).
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`In that case, the Second Circuit concluded that the registrations for certain children’s Halloween
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`costumes were procured by fraud because they were registered as “soft sculptures.” Id. at 454. The
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`court found that costumes held no “firm form” and therefore could not constitute sculptures. Id. at
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`456. It further concluded that the registrant acted in bad faith because it knew that a registration for
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`costumes would have been rejected as merely useful articles. Id. at 455-56. The court also
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`distinguished the registration in that case from another “sculpture” registration involving bear paw
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`slippers, finding that the photo submitted in that registration made clear—and therefore was not
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`deceptive—that the item was a slipper. Id. at 456; see Animal Fair, Inc. v. Amfesco Indus., Inc., 620
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`F. Supp. 175 (D. Minn. 1985), aff'd mem., 794 F.2d 678 (8th Cir. 1986).
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`Plaintiff’s copyright registration manifests a similar flaw. As Plaintiff’s own certificate shows,
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`its copyrighted work is “Inflatable Costume.” Dkt. No. 6-2 at 1. An “Inflatable Costume” certainly
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`holds no “firm form” and therefore cannot be a sculpture. See The American Heritage® Dictionary
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`of the English Language, 4th Ed., Houghton Mifflin Company, 2004 (defining sculpture as “a work
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`4
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`of art created by the practice of shaping figures or designs in the round or in relief, as by chiseling
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`marble, modeling clay, or casting in metal”). Therefore, Plaintiff has not asserted a valid copyright.
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`b. Plaintiff Failed to Show Actual Copying and Substantial Similarity.
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`Assuming arguendo2, that the two photos attached to Plaintiff’s Complaint are the deposit
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`copies of its artwork, they are significantly different to Defendant’s Accused Products with respect
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`to, inter alia, the face and hands of the “alien,” the posture of the “alien,” the color and design of the
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`“human part’s” pants and shoes. Compare Dkt. No. 2-6 to Dkt. No. 13-1 at 9-15. Indeed, from a more
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`artistic perspective, the “human models” in Plaintiff’s deposit copies have different age, race, skin
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`color, posture and facial expression compared to Defendant’s product listing. Id. If there is anything
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`in common among Plaintiff’s deposit copies and Defendant’s Accused Products, which is the
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`idea/style of a human being “picked up” by an alien, which cannot be copyrighted. See, e.g., Mattel,
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`Inc. v. MGA Entm't, Inc., 616 F.3d 904, 913 (9th Cir. 2010) (finding a defendant may freely copy
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`another’s ideas and unprotectable elements); Tangle Inc. v. Aritzia, Inc., 2023 U.S. Dist. LEXIS
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`187348, at * 7 (N.D. Cal. 2023) (“Style, no matter how creative, is an idea, and is not protectable by
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`copyright.”).
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`C. Plaintiff Failed to Show Irreparable Harm.
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`Plaintiff also failed to show it will suffer any irreparable harm in the absence of a preliminary
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`injunction. The Third Circuit has found that, “a substantial likelihood of continuing infringement is
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`necessary to obtain permanent injunctive relief, the continuing nature of the infringement does not
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`mean that any future injury would be irreparable.” TD Bank N.A. v. Hill, 928 F.3d 259, 280 (3d Cir.
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`2019) (cleaned up). “Although eBay identified irreparable harm and the adequacy of legal remedies
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`2 The record is unclear on what is the real Plaintiff’s copyrighted artwork. The two photos that
`Plaintiff claimed being its “deposit copies” are significantly different to which the Court found
`being the “product … [that] is the subject of a federally registered Copyright for the Plaintiff’s
`Alien Costume Sculpture.” Compare Dkt. 2-6 at 2-3, to Dkt. No. 20 at 10.
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`5
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`as separate considerations, they typically constitute two sides of the same inquiry, for the availability
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`of adequate monetary damages belies a claim of irreparable injury.” Id. at 282 (cleaned up). The
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`actual and statutory damages provided by the Copyright Act are within the “arsenal of monetary
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`remedies” a district court can award a copyright holder. See id. at 282-83 (noting that statutory
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`damages may provide a copyright holder with an adequate remedy at law).
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`In this case, even if Plaintiff eventually prevails, its potential damages can be adequately
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`remedied by the actual and statutory damages provided by the Copyright Act. Further, since
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`Defendants agrees not to sell any of the Accused Products pending this litigation, Lv Decl. at ¶ 9,
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`there will be no “continuing infringement” pending this case, which is necessary to obtain a
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`preliminary injunction. TD Bank N.A, 928 F.3d at 280; see also Naughtys LLC v. Does, 2021 U.S.
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`Dist. LEXIS 179143, at * 9 (N.D. Tex. 2021).
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`Because Plaintiff failed to establish at least one of the “most critical” “gateway factors” for
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`obtaining a preliminary injunction, the Court must deny its Motion for Preliminary Injunction.
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`D. The Balance of Hardships Weighs in Favor of Defendant.
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`The grant of a preliminary injunction in an intellectual property case often results in the
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`defendants having to remove a product from the market, or at least drastically modify it, pending trial.
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`Furthermore, given the extended duration of many cases, the defendants may face months or even
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`years before the product can be reintroduced. As a result, the hardship on the defendants can be
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`drastic. In Illinois Tool Works v. Grip-Pak, Inc., 906 F.2d 679 (Fed. Cir. 1990), the Federal Circuit,
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`for instance, considered opposing hardships and explained:
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`The hardship on a preliminarily enjoined manufacturer who must withdraw its product
`from the market before trial can be devastating … Because the court must balance the
`hardships, at least in part in light of its estimate of what is likely to happen at trial, it
`must consider the movant's showing of likelihood of success. Yet, a court must remain
`free to deny a preliminary injunction, whatever be the showing of likelihood of
`success, when equity in the light of all the factors so requires.
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`6
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`Illinois Tool, 906 F.2d at 683. Courts facing the prospect of such dire consequences to one party or
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`the other therefore must engage in a sensitive analysis based on the unique facts of each case. The
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`relative strength of the parties’ showings on the merits influences the outcome. Where the rights
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`holder’s evidence is especially weak—as is the case here—the showing on balance of hardships
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`and/or public interest must be more compelling.
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`As discussed in detail above, Plaintiff does not have a valid copyright. If an injunction is
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`maintained against Defendant, it will be excluded from the market and will lose a significant portion
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`of its revenue that is not relevant to this case. Lv Decl. at ¶¶ 7-8. Therefore, the balance of harms
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`weighs in favor of Defendant.
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`E. The Public Interest Would Not Be Served by An Injunction.
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`In this case, an injunction would not serve the public interest. If an injunction were in place,
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`Defendant’s numerous customers who would purchase unrelated products from Defendant would be
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`affected. See Lv Decl. at ¶¶ 6&8. As detailed above, the public interest would not be served because
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`the Plaintiff has fallen short of showing a likelihood of success on its copyright claim. Setting such a
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`low bar for granting a preliminary injunction is certainly not in the public interest.
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`F. The Court Should Issue a PI Only Restrains a Proportional Amount of Money
`Compared to Plaintiff’s Potential Damages.
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`As the Supreme Court of the United States has made clear, federal district courts have no
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`authority to issue a preliminary injunction preventing defendants from disposing of their assets
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`pending adjudication of plaintiffs’ claim for money damages. Grupo Mexicano de Desarrollo S.A. v.
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`All. Bond Fund, Inc., 527 U.S. 308, 333 (1999). Indeed, “[a] preliminary injunction . . . in aid of the
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`collection of a money judgment, not final equitable relief, [is] an outcome barred by Grupo
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`Mexicano.” JSC Foreign Econ. Ass'n. Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 295
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`F.Supp.2d 366, 389 (S.D.N.Y.2003); see Wallace v. Powell, 2014 U.S. Dist. LEXIS 198700, at * 42-
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`43 (M.D. Pa. 2014) (find the Court lacks authority to issue a preliminary injunction preventing
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`Defendant from disposing its assets because plaintiffs were unable to identify an equitable interest in
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`that assets).
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`To obtain such prejudgment relief, in addition to the requirements necessary to obtain a
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`preliminary injunction, a plaintiff must satisfy the court that, (1) he asserts a cognizable equitable
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`claim, (2) he demonstrates a sufficient nexus between that equitable claim and specific assets of the
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`defendant which are the target of the injunctive relief, and (3) he shows that the requested interim
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`relief is a reasonable measure to preserve the status quo in aid of the ultimate equitable relief claimed.
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`Symphony FS Ltd. v. Thompson, 2018 U.S. Dist. LEXIS 214641, at * 17-18 (E.D. Pa. Dec. 20, 2018)
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`(cleaned up). “Of particular importance is that the plaintiff must have some claimed lien or equitable
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`interest in a defendant’s assets beyond that of a possible money judgment.” Bradley v. Amazon.com,
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`Inc., 2021 U.S. Dist. LEXIS 229607, at * 5 (E.D. Pa. 2021) (citation omitted).
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`In this case 3, the only possible Plaintiff’s “equitable interest in [D]efendant’s assets” is
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`Defendant’s profits from selling the Accused Products. 17 U.S.C. § 504 (b); see Fair Isaac Corp. v.
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`Fed. Ins. Co., 408 F. Supp. 3d 1019, 1026-31 (D. Minn. 2019), aff'd, 468 F. Supp. 3d 1110 (D. Minn.
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`2020) (R&R) (finding, in a copyright case, that disgorgement is an equitable remedy). Defendant’s
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`entire revenue in selling the Accused Product is $ 88,749. Lv Decl. at ¶¶ 4&5. But Defendant has
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`been disproportionally restrained approximately $ 250,000 in their Amazon account. Id. at ¶ 6. Even
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`if Plaintiff eventually prevail in its federal copyright claim and elected to seek statutory damages
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`3 By a footnote in the TRO, the Court states that “Under Pennsylvania law, pre-judgment restraints
`are permitted as against all defendants.” Dkt. No. 20 at 4 n. 1 (citing Walter v. Stacey, 837 A.2d
`1205 (Pa. Super. 2003)). However, Plaintiff only has one federal copyright infringement claim
`against Defendant; no cause of action under Pennsylvania law is alleged. Dkt. No. 2. Therefore,
`Pennsylvania law regarding pre-judgment restraints should not apply to this case. See Gilead Scis.,
`Inc. v. Safe Chain Sols., LLC, 2023 U.S. Dist. LEXIS 137400, at * 44 (E.D.N.Y. 2023) (rejecting to
`order further equitable relief under state law when an injunction was entered under federal law).
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`instead of actual damages, the Court still should discern whether the requested damages “bear some
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`relation to the actual damages suffered.” Bly v. Banbury Books, Inc., 638 F. Supp. 983, 987 (E.D. Pa.
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`1986). The amount of money restrained in Defendant’s Amazon account is disproportionate to the
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`potential equitable damages, i.e., Defendant’s profits, that Plaintiff may be able to obtain in this case.
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`Therefore, the Court should cap the amount of money to be restrained in Defendant’s Amazon
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`accounts pending this case should it decide to grant the PI. This cap should be at most Plaintiff’s
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`revenue in selling the Accused Products, $88,749. See 17 U.S.C. § 504 (b).
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`G. The PI Needs to Be Supported by A Sufficient Bond.
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`Alternatively, the PI should be supported by a sufficient bond. Before a court may issue a
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`preliminary injunction, Federal Rule of Civil Procedure 65(c) requires that the “movant give security
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`in an amount that the court considers proper to pay the costs and damages sustained by any party . . .
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`wrongfully enjoined.” Fed. R. Civ. P. 65(c). Courts have wide discretion under Rule 65(c) when
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`determining the amount of the security. Transcon. Gas Pipe Line Co., LLC v. Permanent Easement
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`for 3.70 Acres, 2017 U.S. Dist. LEXIS 126180, at *20 (M.D. Pa. 2017) (citations omitted). The
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`amount of the bond is generally “the limit that a wrongfully restrained party may recover.” Johnson
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`Controls, Inc. v. A.P.T. Critical Sys., 323 F. Supp. 2d 525, 541 (S.D.N.Y. 2004). Accordingly, in
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`determining the bond amount, courts attempt to “limit the possibility that a restrained party that is
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`ultimately successful on the merits is not able to obtain adequate relief.” Id.
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`In this case, an appropriate bond would be in the amount of at least $1,000,000. Defendant’s
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`estimated annual revenue, mostly from unrelated products, is over $2 million. See Lv Decl. at ¶ 3. As
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`such—assuming two years of litigation—Defendant stands to lose over $4 million in cash flow, which
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`is vital to a business, as a result of the injunction. Also, if the injunction were to remain in place,
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`Defendant would be struggling to survive. See Lv Decl. at ¶¶ 7-8. As such, Plaintiff should be required
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`to post a significant bond at least in the amount of $1,000,000.
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`IV. CONCLUSION
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`As shown in the above arguments and declarations, the damages that Plaintiff may claim in
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`this case is very limited. Further, the balance of hardship weighs against maintaining such broad
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`injunction and public interest would not be served by it either. As such, Defendant respectfully
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`requests this Court denies Plaintiff’s Motion for Preliminary Injunction Order. Even if the Court were
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`to grant Plaintiff’s Motion for Preliminary Injunction Order, the Court should cap how much money
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`in Defendant’s Amazon account to be proportionally restrained pending this case. Further, Plaintiff
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`should be required to post a significant bond at least in the amount of $1,000,000.
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`Case 2:23-cv-01840-WSS Document 62 Filed 11/27/23 Page 11 of 11
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`DATED November 27, 2023.
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`Respectfully submitted,
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`By: /s/ Timothy Wang
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`Timothy T. Wang (Pro Hac Vice)
`Texas Bar No. 24067927
`twang@nilawfirm.com
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`NI, WANG & MASSAND, PLLC
`8140 Walnut Hill Ln., Ste. 615
`Dallas, TX 75231
`Tel: (972) 331-4600
`Fax: (972) 314-0900
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`ATTORNEY FOR DEFENDANT
`CAMLINBO
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`CERTIFICATE OF SERVICE
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`On November 27, 2023, I filed the foregoing document with the clerk of court for the U.S.
`District Court, Western District of Pennsylvania, using the CM/ECF System which will send
`notification of said filing to all counsel of record.
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`/s/ Timothy T. Wang
`Timothy T. Wang
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`11
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