SPIN MASTER, LTD. v. ACIPER

Background

The plaintiffs sought default judgment against defendants who had not defended the case. In an April 28, 2022 order, the court required additional briefing because an earlier order had found that the plaintiffs failed to plead consumer confusion against another defendant and the court needed more information about whether the plaintiffs had pleaded sufficient facts against the defaulting defendants.

The plaintiffs responded with a further memorandum, declaration, exhibits, and screenshots of Amazon webpages. Their claims were based on the allegation that the defendants sold products on Amazon using the Racer Marks or in a way so confusingly similar to those marks that consumers were likely to be misled while making purchases.

Remaining Deficiencies

The court found that the screenshots for the defendant identified as “jirong he” and Kingbot-US were too blurry to show the highlighted portions or how those defendants may have infringed the Racer Marks. As to “jirong he” specifically, the plaintiffs also did not provide evidence that this defendant had sold a relevant product in the United States. The court noted that, unlike the evidence submitted for other defaulting defendants, the plaintiffs did not provide shipping labels or packaging showing a sale to a New York address. Based on the record, the court stated that it had no reason to believe personal jurisdiction—the court’s authority over a defendant—was proper in the district as to that defendant.

The court also found that the plaintiffs’ materials did not show how UniDargon may have infringed the Racer Marks. The screenshots had no highlighting, and the materials did not otherwise explain the alleged infringement. Although photographs of UniDargon’s packaging showed the words “Wall Climber,” the court said that this alone could not establish likely confusion before or during a sale because the plaintiffs alleged that the defendants sold products online through Amazon. A consumer would see the packaging only after purchasing the product, and the plaintiffs had not shown that UniDargon’s conduct fit the types of consumer confusion discussed in the earlier order.

Order

The court did not grant or deny the application for default judgment in this order. It ordered that, by May 20, 2022, the plaintiffs may file a further supplemental declaration and exhibits addressing the deficiencies concerning the defendant identified as “jirong he,” Kingbot-US, and UniDargon. It also ordered the plaintiffs to file a proposed order to show cause for seeking default judgment, as required by the judge’s individual rules, and to email a Word version to chambers. Judge Vernon S. Broderick signed the order on May 17, 2022.