Overnight Blowout LLC. v. Does 1-28

Background

Plaintiffs alleged that defendants operated storefronts on Amazon, Shein, and TikTok and sold unauthorized reproductions of plaintiffs’ Overnight Blowout Rods. Plaintiffs alleged claims based on patent, copyright, and trademark protections, including false designation of origin and passing off. Plaintiffs also alleged that defendants used unauthorized images of plaintiff Hipolito to promote the accused products.

Plaintiffs sought permission to serve certain defendants by email, online contact forms, or other electronic contacts connected to their online storefronts. The court had previously issued a temporary restraining order and an order requiring defendants to show why preliminary relief should not issue. Flylipu appeared to challenge the proposed service method and oppose a preliminary injunction, but its counsel later reported that Flylipu had reached an agreement-in-principle with plaintiffs and that its objections were moot.

Alternative Service

The court explained that proper service of process is one requirement for personal jurisdiction over a defendant. Federal Rule of Civil Procedure 4(f) permits service on a person or entity outside the United States through methods authorized by an international agreement, certain alternative methods where permitted, or other methods ordered by the court that are not prohibited by an international agreement.

The court held that the Hague Convention on service of documents applies to defendants in China when their physical addresses are known or can be found through reasonable diligence. China has objected to service by postal channels under the Convention, and the court stated that email service is also not permitted where the Convention applies. The Convention does not apply when the person’s address is not known, but determining whether an address is unknown requires a factual showing of reasonable diligence.

Plaintiffs submitted a declaration stating that addresses for certain defendants appeared incomplete, invalid, or unusable. The court found that the submission treated the defendants generally and did not distinguish among them or detail efforts to verify, research, or locate each defendant’s address. The court also found that plaintiffs had not stated whether the actual addresses of the defendants represented by counsel were known or could be found through reasonable diligence, or where those attorneys were located.

Accordingly, the court denied without prejudice to renewal plaintiffs’ application for alternative service. The court allowed plaintiffs to renew the request on a supplemented factual record.

Preliminary Injunction

The court identified the defendants who had accepted service through communications from counsel as the “Served Defendants.” None of those defendants appeared at the preliminary-injunction hearing or otherwise opposed the motion. The court found that plaintiffs’ allegations that the defendants sold products to customers in the United States, including in the district, were sufficient at this stage to support personal jurisdiction for purposes of preliminary relief. The court noted that the allegations remained untested and that discovery had not established the quantity of each defendant’s sales in the district.

A preliminary injunction is an order issued before final judgment to prevent specified conduct while the case continues. The court found that plaintiffs had shown a likelihood of success on their false-designation-of-origin and passing-off claims. It found that plaintiffs had a valid and enforceable trademark and that defendants’ conduct created a likelihood of confusion. The court also found likely irreparable harm from lost sales and reputational damage caused by sales of inferior knockoffs, that the balance of hardships favored plaintiffs, and that an injunction served the public interest.

The court therefore granted plaintiffs’ motion for a preliminary injunction as to the Served Defendants and otherwise denied without prejudice to renewal the motion. Plaintiffs were directed to submit a proposed order stating the injunction’s terms, with the existing bond continuing.

Other Relief and Disposition

The court extended the previously issued temporary restraining order, keeping it in force until modified by another order, except as to the Served Defendants, who would be covered by the preliminary injunction. The extension was based on the alleged tangible harm, the likelihood that the named defendants had actual notice of the case, and the need for additional time to supplement the alternative-service application. The order stated that any party could move to vacate or modify the temporary restraining order.