3 BEES & ME INC. v. Besportble

Background

3 Bees & Me develops, markets, sells, and distributes children’s toys under the “3 Bees & Me” brand. The opinion states that the brand has a registered trademark. 3 Bees & Me owns by assignment U.S. Design Patent No. D 884,087, titled “Bathtub Toy Fastener,” covering a design for fastening bathtub toys, including toy basketball hoops, to bathtub fixtures.

3 Bees & Me alleged that, beginning in February 2019, Cyfie manufactured, imported, exported, advertised, marketed, promoted, distributed, displayed, and sold bathtub toys through Amazon storefronts that infringed the patent. The opinion states that Cyfie was not an authorized distributor or licensee of the patent.

Court’s findings

The court found that it had personal jurisdiction over Cyfie under New York Civil Practice Law and Rules § 302(a)(1), because Cyfie operated an Amazon storefront through which customers in New York had purchased the accused products.

For a preliminary injunction, the court considered whether 3 Bees & Me was likely to succeed, whether it would suffer immediate and irreparable harm without an injunction, whether the balance of potential harms favored an injunction, and whether an injunction served the public interest. The court found that 3 Bees & Me had shown a likelihood of success on its patent-infringement claim because the accused products and the patented design were “substantially the same”—meaning that an ordinary observer familiar with prior designs would be deceived into believing the accused product was the patented design.

The court found that infringement could cause unrecoverable lost revenue, lost market share, price erosion, reputational harm, and lost marketing opportunities. It also found that the potential harm to 3 Bees & Me outweighed the harm to Cyfie from being prevented from profiting from the alleged infringement, and that the public interest favored protecting the patent and the public from being deceived by sales of the accused products.

Prior proceedings and Cyfie’s response

The court had issued a temporary restraining order against Cyfie on July 10, 2020, based on the same findings. The order required Cyfie to oppose the preliminary-injunction motion by July 15, 2020, and to appear at a hearing on July 20, 2020, while warning that failure to appear could result in a preliminary injunction under Federal Rule of Civil Procedure 65.

The opinion states that 3 Bees & Me served the temporary restraining order electronically on Cyfie on July 15, 2020, after Amazon identified Cyfie’s email address on July 14, 2020. Cyfie did not submit an opposition, did not appear at the scheduled hearing or later adjourned hearings, and gave the court no basis to lift the restraints in the temporary restraining order.

Disposition

The court granted 3 Bees & Me’s application for a preliminary injunction. Pending resolution of the action or further court order, the injunction restrained Cyfie from manufacturing, importing, exporting, advertising, marketing, promoting, distributing, displaying, offering for sale, selling, or otherwise dealing in the accused products. It also prohibited concealing, destroying, altering, selling, transferring, or disposing of the accused products and related records or evidence; creating or using new entities, platforms, accounts, or storefronts to evade the order; and knowingly instructing, aiding, or abetting those activities.

Under Rule 65(d)(2), the order also restrained people acting in active concert or participation with the covered defendants who received actual notice of the order. The court ordered electronic service of the preliminary injunction on Cyfie within five days after entry and required service on Amazon.com by Federal Express and email.