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CALIFORNIA ◆ GEORGIA ◆ FLORIDA ◆ TENNESSEE ◆ NEW YORK

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO.: 9:22-cv-81576

VPR BRANDS, LP,

Plaintiff,

v.

SHENZHEN WEIBOLI TECHNOLOGY CO. 

LTD. (ELF BAR), YLSN DISTRIBUTION 

LLC, ECTO WORLD LLC, SAFA GOODS 

LLC, D&A DISTRIBUTION LLC, 

UNISHOW (U.S.A.), INC., SV3 LLC, AND 

KINGDOM VAPOR INC.,

Defendants.

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Plaintiff VPR BRANDS, LP, by and through its undersigned counsel, pursuant to 15 U.S. 

Code § 1116(a), Fed. R. Civ. P. 65, and The All Writs Act, 28 U.S.C. § 1651(a), hereby moves 

this Honorable Court for a preliminary injunction against all Defendants, and in support thereof 

states as follows:

I. INTRODUCTION

For more than 12 years, VPR has been building its valuable intellectual property portfolio 

due to its extensive experience in the e-cigarette industry. In 2016, VPR purchased the assets of 

Vapor Corp. and grew Vapor Corp. into one of the largest and most recognized electronic 

cigarette companies at the time. VPR owns the U.S. Patent Number 8,205,622 entitled 

“Electronic Cigarette.” VPR operates under a number of brands, including the one at issue in this 

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lawsuit, the ELF Mark. VPR currently markets two product lines under the ELF Brand: (1) the 

Elf Original Auto Draw Conceal Kit products and (2) e-cigarette batteries. 

Recently, VPR became aware that Defendant SHENZHEN WEIBOLI TECHNOLOGY 

CO. LTD., (“Weiboli”) were selling a disposable e-cigarette product being marketed and sold in 

the United States using the ELF Mark, called ELF BAR or ELFBAR (hereinafter “ELFBAR”). 

Defendants’ subsequent use of the confusingly similar marks is threating VPR’s goodwill and 

reputation. In fact, Defendants were on notice that its ELFBAR branded products were 

confusingly similar to VPR’s ELF Mark when the USPTO refused to register its ELFBAR 

trademark application on July 19, 2021. Despite the likelihood of confusion refusion, and being 

put on notice by the USPTO that ELFBAR is likely to cause consumer confusion with VPR’s 

ELF Mark, Defendants willfully moved forward with its plans to market and sell electronic 

cigarette devices using the ELFBAR mark throughout the United States. To prevent the 

confusion and irreparable harm that is inevitable, VPR respectfully requests that the Court enter 

a preliminary injunction against the Defendants. 

II. STATEMENT OF FACTS

a. VPR Brands, LP

VPR Brands, LP is a Delaware limited partnership with its principal place of business in 

this judicial district, located at 1141 Sawgrass Corporate Parkway, Sunrise, FL 33323 (Frija 

Decl. ¶ 5). Kevin Frija is the Chief Executive Officer of VPR. (Frija Decl. ¶ 1). VPR is a market 

leader and pioneer engaged in product development for the vaping market, including e-liquids, 

vaporizers, and electronic cigarettes (also known as e-cigarettes) which are devices that deliver 

nicotine and or cannabis through atomization or vaping, and without smoke and other chemical 

constituents typically found in traditional products. (Frija Decl. ¶ 6). VPR is in the business of 

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creating, designing, and distributing innovative electronic cigarette technologies and other 

related technologies. VPR is also in the business of creating valuable e-cigarette brands. (Frija 

Decl. ¶ 7). VPR has been successful in building valuable intellectual property due to its extensive 

experience in the e-cigarette industry. Through Kevin Frija, VPR began working in this business 

in 2008 with Smoke51 which was one of the first electronic cigarette brands in the United States. 

In 2009, Frija became the President and Chief Executive Officer of Vapor Corp., one of the first 

U.S. importers and first publicly traded electronic cigarette companies. Frija helped grow Vapor 

Corp. into one of the largest and most recognized electronic cigarette companies at the time. In 

2016, VPR purchased the assets of Vapor Corp. (Frija Decl. ¶¶ 8-9).

b. VPR’s Intellectual Property Rights

VPR owns all right, title and interest in U.S. Patent Number 8,205,622 (the ‘622 Patent) 

entitled “Electronic Cigarette.” The ‘622 Patent discloses an electronic cigarette consisting of an 

electronic inhaler and an electronic atomizer. The electronic inhaler contains a rechargeable or 

non-rechargeable power source such as a battery, which supplies electric power to the electronic 

inhaler. In addition to the power source, the inhaler also includes an electric airflow sensor to 

detect air movement generated by a user's inhaling or puffing act. The sensor's role is to collect 

an airflow signal that triggers the electronic cigarette to supply electric power to the inhaler and 

atomizer connected through an electric connector. Inside the electronic atomizer are an electric 

connector, electric heating wire, liquid container, and atomizer cap with an air-puffing hole. The 

user inhales through the air puffing hole at an end of the electronic cigarette to create an air 

inflow, which triggers the atomization process that converts a solution to a gas emulating the 

smoking process. (Frija Decl. ¶ 10).

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VPR owns the ELF trademark, U.S. Registration No. 5,486,616 to VPR for the ELF mark 

in International Class 34 for use in connection with “Electronic cigarette lighters; Electronic 

cigarettes; Smokeless cigarette vaporizer pipe.” (the “ELF Mark” or “’616 Registration”), 

registered on June 5, 2018. (Frija Decl. ¶ 14). Beginning in 2017, VPR began marketing a line of 

electronic cigarettes and electronic cigarette accessories under the ELF brand name and logo. On 

November 24, 2017, VPR first used the ELF mark in commerce in connection with VPR’s sale 

of electronic cigarettes and accessories. (Frija Decl. ¶ 11).

VPR currently markets two product lines under the ELF brand. One product line consists 

of the ELF Original Auto Draw Conceal Kit products. The ELF Original Auto Draw Conceal Kit 

is a reusable (non-disposable) bar-shaped e-cigarette featuring a buttonless design, high-capacity 

battery, and a high-end aluminum body in a variety of colors. The ELF Original Auto Draw 

Conceal Kit is compatible with all industry standard refillable 510 mouthpieces. (Frija Decl. ¶¶ 

12-13). The other ELF product line consists of high-capacity e-cigarette batteries designed to be 

connected to industry standard refillable 510 mouthpieces. An example of products are shown 

below:

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ELF Original Auto Draw Conceal Kit E-cigarette Batteries

The ELF Mark is an arbitrary mark that had no significance in the electronic cigarette 

industry. Prior to VPR’s use of the ELF mark, no other e-cigarette brand used the ELF mark for 

e-cigarettes or accessories. (Frija Decl. ¶ 15). VPR has continuously used the ELF Mark in 

commerce to distinguish its e-cigarette products and e-cigarette accessory products since 2017. 

(Frija Decl. ¶ 16). The ELF Mark is distinctive and signifies to the purchasing public that the 

products come from VPR and are of high quality goods and services. (Frija Decl. ¶ 17). VPR 

markets and sells its ELF e-cigarette products and e-cigarette accessory products on its publicly 

available website https://vprbrands.com/ and through retailers nationwide. (Frija Decl. ¶¶ 18-19). 

VPR was the first to use the mark ELF in connection with ELF e-cigarette products and 

e-cigarette accessory products from other devices on the market. (Frija Decl. ¶ 20). VPR chose 

the arbitrary and unique ELF Mark to signify to its consumers its ELF e-cigarette products and ecigarette accessory products from other devices on the market. (Frija Decl. ¶ 21). VPR 

continually and exclusively used the ELF Mark for its e-cigarette products to date. (Frija Decl. ¶ 

22). VPR expended significant resources to market ELF e-cigarette produce and e-cigarette 

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accessory products to consumers. (Frija Decl. ¶ 23). VPR continually and exclusively used the 

ELF mark and expended significant resources in obtaining the mark with the USPTO as well as 

money, creativity, and promotional efforts to market the devices to consumers. VPR’s ELF mark 

is widely recognized by consumers, including national distributors and retail customers. VPR’s 

ELF mark signifies the highest industry standards. VPR’s ELF Mark serves as an indication of 

origin, source, and quality for consumers and distributors of e-cigarette products and e-cigarette 

accessory products. (Frija Decl. ¶¶ 24-29).

VPR carefully monitors and controls the use of the ELF Mark to ensure that only the 

highest quality e-cigarette products and e-cigarette accessory products carry the ELF brand. 

(Frija Decl. ¶ 28). VPR has ever licensed the use of the ELF Mark to anyone for use with ecigarette products or e-cigarette accessory products. (Frija Decl. ¶ 23).

c. Defendant’s Infringement of the ELF Mark

In May of 2022, VPR became aware of a disposable e-cigarette product being marketed 

and sold in the United States using the ELF Mark called ELF BAR or ELFBAR (hereinafter 

“ELFBAR”). (Frija Decl. ¶ 30). An image of the infringing product is shown below: 

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VPR attempted to investigate the source of the product but was unable initially to 

determine the parties responsible for the sale of the unauthorized ELFBAR disposable ecigarettes. (Frija Decl. ¶ 31). Finally, after identifying several distributors of the ELFBAR, VPR 

was able to determine that the source of the product was SHENZHEN WEIBOLI 

TECHNOLOGY CO. LTD. (“Weiboli”). (Frija Decl. ¶ 32). Weiboli is using the ELF mark 

without consent, authorization, license, or permission. (Frija Decl. ¶ 33).

The name ELFBAR combines VPR’s registered trademark ELF with the word “bar” that 

means a “substance formed into a regular narrow block,” like a chocolate bar. The shape of the 

ELFBAR product is bar shaped. The shape of the ELF Original Auto Draw Conceal Kit product 

is also bar shaped. (Frija Decl. ¶ 34). In fact, as shown below, the ELFBAR product copied the 

shape of VPR’s product: 

 VPR’s ELF Original Auto Draw Conceal Kit Weiboli’s ELFBAR Product

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The word “bar” is commonly used to refer to bar shaped e-cigarettes such as Geek Bar, 

Air Bar, and Puff Bar. As a result, the addition of the word “bar” added to “elf” fails to 

distinguish VPR’s ELF e-cigarette products from Weiboli’s ELFBAR product. (Frija Decl. ¶ 35). 

The Weiboli ELFBAR name is confusingly similar to Plaintiff’s registered ELF mark as applied 

to e-cigarette products. (Frija Decl. ¶ 36). VPR does not and cannot monitor or control the 

quality and safety of Weiboli’s ELFBAR devices. (Frija Decl. ¶ 37). In fact, the Weiboli 

ELFBAR device is a cheap, inferior disposable device that weighs significantly less and costs 

significantly less than VPR’s ELF Original Auto Draw Conceal Kit. (Frija Decl. ¶ 38).

At least as early as July 19, 2021, Weiboli had knowledge of VPR’s ELF Mark, and was 

on notice that Weiboli’s ELFBAR products were causing confusion with VPR’s ELF mark in the 

United States. (Frija Decl. ¶ 39). On December 31, 2020, Weiboli submitted an application with 

the USPTO to register the mark “ELFBAR.” On July 19, 2021, the USPTO issued an Office 

Action rejecting Weiboli’s ELFBAR application, under section 2(d), based on a likelihood of 

confusion with Plaintiff’s ELF Mark. The Office Action stated, in part, “the marks are 

confusingly similar because applicant’s mark ELFBAR creates an overall similar commercial 

impression with the registered mark ELF. Because the marks look and sound similar and create 

the same commercial impression, the marks are considered similar for likelihood of confusion 

purposes.” (Frija Decl. ¶ 40; see Exhibit 2 to Frija’s Declaration). 

Weiboli did not respond to the July 19, 2021, Office Action, and its application to register 

the ELFBAR mark was abandoned as of January 20, 2022. (Frija Decl. ¶ 41). Despite the 

USPTO’s refusal to register Weiboli’s ELFBAR applicationbased on a likelihood of confusion, 

Weiboli entered the market in the U.S. with its infringing ELFBAR product. (Frija Decl. ¶ 42). 

Weiboli entered the market knowing that it was selling a product under a mark that was 

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confusingly similar to VPR’s ELF Mark. (Frija Decl. ¶ 43). The Weiboli ELFBAR name is 

causing actual confusion among consumers, retailers and distributors of e-cigarettes in the 

United States. At least one national e-cigarette distributor contacted VPR under the mistaken 

belief that VPR was the source and origin of the ELFBAR product. (Frija Decl. ¶¶ 44-45).

The remaining defendants, SAFA GOODS LLC, YLSN DISTRIBUTION LLC, ECTO 

WORLD, LLC, D&A DISTRIBUTION LLC, UNISHOW (U.S.A.), INC., SV3 LLC, AND 

KINGDOM VAPOR INC., are wholesale distributors who offer ELFBAR branded products for 

sale to retailers throughout the United States and including in this judicial district. (DE 1 at 4-7). 

To prevent consumer confusion and irreparable harm that is inevitable, VPR respectfully 

requests that the Court enter a preliminary injunction against all of the Defendants from selling 

or offering to sell the ELFBAR products.

III. LEGAL ARGUMENT

To obtain a preliminary injunction, plaintiff must establish (1) a substantial likelihood of 

success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) 

that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) 

that entry of the relief would serve the public interest. See Schiavo ex rel. Schindler v. Schiavo, 

403 F.3d 1223, 1225-26 (11th Cir. 2005); see also YETI Coolers, LLC v. Individuals, Bus. 

Entities, & Unincorporated Ass’ns Identified on Schedule A, 566 F. Supp. 3d 1333, 1340 (S.D. 

Fla. 2021). Plaintiff’s evidence establishes all of the relevant factors.

A. Probability of Success on the Merits of Plaintiff’s Claims. 

i. Plaintiff is Likely to Succeed on the Merits of its Federal Trademark 

Infringement and Unfair Competition Claims 

To prevail on a trademark infringement claim under the Lanham Act, 15 U.S.C. § 1114, a 

plaintiff must show: (1) that its mark has priority; (2) that the defendant used the plaintiff’s mark 

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in commerce; and (3) that defendant’s use of the mark is likely to cause confusion among 

consumers. PetMed Express, Inc. v. MedPets.Com, Inc., 336 F. Supp. 2d 1213, 1217 (S.D. Fla. 

2004). The same analysis applies to claims for federal false designation of origin and unfair 

competition. Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1475 n.3 (11th Cir. 

1991) (“[T]he same facts support a cause of action for unfair competition as for trademark 

infringement.”) (citation omitted).

a. VPR Has Priority in the ELF Mark and Weibolo Has Used the Mark in 

Commerce. 

VPR owns the federal trademark registration for the ELF Mark. (Frija Decl. ¶ 14, Exhibit 

1). Weiboli has never had the right or authority to use the ELF Mark. (Frija Decl. ¶ 32). VPR has 

used the ELF Mark in commerce since at least November 24, 2017. (Frija Decl. ¶ 11). In 

contrast, Weiboli’s trademark application claims a date that it has used the ELFBAR mark in 

commerce since at least September 29, 2020. (Frija Decl. ¶ 40, Exhibit 2). Weiboli offers its 

products under the ELFBAR brand in the United States and sells its product on its website, 

establishing use in commerce. (Frija Decl. ¶ 43, Exhibit 2). Weiboli’s use of the ELFBAR name 

comes three years too late. FN Herstal SA v. Clyde Armory Inc., 838 F.3d 1071, 1080-81 (11th

Cir. 2016) (“The party who first uses a mark in commerce is said to have priority over other 

users.”). Moreover, the USPTO has rejected the registration of the ELFBAR mark finding that it 

was confusingly similar to Plaintiff’s senior ELF mark. Therefore, the first two requirements for 

VPR’s trademark infringement and unfair competition claims are met.

ii. A Likelihood of Confusion Exists

Likelihood of confusion, the third factor, is established under a seven-factor test. See 

Ross Bicycles, Inc. v. Cycles USA, Inc., 765 F.2d 1502, 1506 (11th Cir. 1985). These factors are: 

(1) the strength of the mark; (2) the similarity of marks; (3) the similarity of the goods; (4) 

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similarity of the sales methods; (5) the similarity of advertising media; (6) defendants’ intent; 

and (7) evidence of actual confusion. See Safeway Store, Inc. v. Safeway Discount Drugs, Inc., 

675 F.2d 1160, 1164 (11th Cir. 1982). The seven factors are weighed and balanced; no single 

factor is dispositive. Id.

1. Strength of the Marks

In assessing the type of mark in an infringement claim, the court must determine the 

mark’s strength. A trademark’s strength is determined by viewing the mark in its entirety as it 

appears in the marketplace. Lone Star Steakhouse and Saloon, Inc. v. Longhorn Steaks, Inc., 106 

F.3d 355, 362 (11th Cir. 1997). The stronger the mark, the greater the scope of protection 

accorded it. Frehling Enterprises, Inc. v. Int’l Select Grp., Inc., 192 F.3d 1330, 1335 (11th Cir. 

1999). Trademarks are divided into four types: (1) fanciful or arbitrary; (2) suggestive; (3) 

descriptive; and (4) generic. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 

(1992).

Here, VPR obtained a valid registration Certificate for the ELF mark. See 15 U.S.C. § 

1057(b); 15 U.S.C. § 1115(a); see also Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1357 n.3 

(11th Cir. 2007) (“Registration establishes a rebuttable presumption that the marks are protectable 

or ‘distinctive.’”) (citing 15 U.S.C. § 1057(b)); TracFone Wireless, Inc. v. Pak China Grp. Co. 

Ltd., 843 F.Supp. 2d 1284, 1294 (S.D. Fla. 2012) (“[T]he Eleventh Circuit strongly presumes 

registered marks to be valid.”) (citing Coach House Rest., Inc. v. Coach & Six Rests., Inc., 934 

F.2d 1551, 1562 (11th Cir. 1991) and Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1184-85 (5th

Cir. 1980)). As such, there is no dispute that VPR’s ELF Mark is protectable and distinctive. 

The ELF Mark is also an arbitrary mark deserving of the greatest scope of trademark 

protection. The term ELF is arbitrary in the way that it had no significance in the electronic 

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cigarette industry, prior to VPR’s use of the ELF Mark. (Frija Decl. ¶ 15). VPR chose the 

arbitrary and unique ELF Mark to signify to its consumers to distinguish its products and ecigarette accessory products from other electronic cigarette devices on the market. (Frija Decl. ¶ 

21). Therefore, the strength of the arbitrary ELF Mark weighs in favor of VPR. 

2. Similarity of the Marks

Likelihood of confusion is greater when an infringer uses the exact trademark. Turner 

Greenberg Assocs. V. C & C Imps., 320 F. Supp. 2d 1317, 1332 (S.D. Fla. 2004). Both VPR and 

Weiboli use the term ELF to identify e-cigarette products. Weiboli’s addition of the word “bar” 

is irrelevant because It is descriptive of the shape of the product. (Frija”Decl. ¶ 34). Moreover, 

the word “bar” is commonly used in the e-cigarette industry to refer to its bar-shaped ecigarettes. (Frija Decl. ¶ 35). As a result, the addition of the word “bar” added to “elf” fails to 

distinguish VPR’s ELF e-cigarette products from Weiboli’s ELFBAR product. 

Furthermore, consumers are generally more inclined to focus on the first word, prefix, or 

syllable in any trademark or service mark. See Palm Bay Imps., Inc. v. Veuve Clicquot 

Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1372 (Fed. Cir. 2005) (finding similarity 

between VEUVE ROYALE and two VEUVE CLICQUOT marks in part because “VEUVE . . . 

remains a ‘prominent feature’ as the first word in the mark and the first word to appear on the 

label”). Therefore, the similarity of the marks weighs in favor of VPR. 

3. Similarity of the Goods

“The greater the similarity between the products and services, the greater the likelihood 

of confusion.” John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 976 (11th Cir. 1983). 

Weiboli is selling e-cigarette products that is sold in the same bar shape as VPR’s products. 

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(Frija Decl. ¶ 32, 34). Weiboli’s product appears is virtually identical to VPR’s e-cigarette 

product. Standing alone, this similarity can be held sufficient to establish a likelihood of 

confusion. See John H. Harland Co., 711 F.2d at 976. The goods sold by both companies are 

electronic cigarettes, therefore, this factor weighs in favor of VPR. 

4. Similarity of the Sales Methods

Convergent marketing channels increase the likelihood of confusion. See Turner 

Greenberg Assocs., 320 F. Supp. 2d at 1332. Both Plaintiff and Defendants sell their products 

using at least one of the same marketing channels, the Internet, in the same geographical 

distribution areas within the United States. (Frija Decl. ¶¶ 18, 43). The sales channels overlap. 

The consumers are the same. Therefore, the similarity of the sales methods weighs in favor of 

VPR. 

5. Similarity of Advertising Media

This factor looks to each party’s method of advertising. See John H. Harland Co., 711 

F.2d at 976. “[T]he standard is whether there is likely to be significant enough overlap in the 

readership of the publications in which the parties advertise that a possibility of confusion could 

result.” Frehling Enterprises, Inc. v. In’'l Select Grp., Inc., 192 F.3d 1330, 1339–40 (11th Cir. 

1999) citing Safeway Stores, Inc. v. Safeway Discount Drugs, Inc., 675 F.2d 1160, 1166 (11th 

Cir.1982). 

Here, both parties advertise their e-cigarettes online. (Frija Decl. ¶¶ 18, 43). This overlap 

supports a likelihood of confusion. See, e.g., PlayNation Play Sys., Inc. v. Velex Corp., 924 F.3d 

1159, 1168-1169 (11th Cir. 2019) (finding significant overlap supporting similarity of advertising 

where both parties advertised on their own websites and the internet, including social media); 

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Canes Bar & Grill of S. Fla., Inc. v. Sandbar Bay, LLC, 343 F. Supp. 3d 1236, 1244 (S.D. Fla. 

2018) (finding factor weighed in favor of likelihood of confusion where parties used marks for 

similar services and both advertised on social media). Therefore, the similarity of the advertising 

media weighs in favor of VPR. 

6. Defendants’ Intent

When an infringer adopts a mark “with the intent of obtaining benefit from the plaintiff’s 

business reputation, ‘this fact alone may be sufficient to justify the inference that there is 

confusing similarity.’” Turner Greenberg Assocs., 320 F. Supp. 2d at 1333 (citing Carnival 

Corp. v. Seaescape Casino Cruises, Inc., 74 F. Supp. 2d 1261, 1268 (S.D. Fla. 1999). 

Weiboli had actual knowledge of the ELF Mark at least as early as July 19, 2021, when 

the USPTO rejected its trademark registration. (Frija Decl. ¶ 39). Weiboli was on notice that its 

ELFBAR products were and still are causing confusion with VPR’s ELF Mark in the U.S. Id.

Despite the rejection, Weiboli proceeded to enter the U.S. market and sell its infringing 

ELFBAR products. Defendants engage in clear-cut copying here giving rise to an inference that 

Defendants intended to benefit from Plaintiff’s reputation to Plaintiff’s detriment. See Playboy 

Ent., Inc. v. P.K. Sorren Export Co. Inc. of Florida, 546 F. Supp. 987, 996 (S.D. Fla. 1982). 

Therefore, Defendants’ intent to benefit from VPR’s reputation and willful cause of confusion 

strongly favors VPR. 

7. Evidence of Actual Confusion

Of critical weight in the digit analysis is evidence of actual confusion. Tana v. Dantanna's, 

611 F.3d 767, 779 (11th Cir. 2010). While “[a]ctual confusion need not be proven in a trademark 

infringement case,” the strongest evidence is in cases where “consumers have confused the junior 

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mark for the senior mark.” Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 225 (5th 

Cir. 2009). As a matter of evidentiary burden upon the parties, “while very little proof of actual 

confusion would be necessary to prove the likelihood of confusion, an almost overwhelming 

amount of proof would be necessary to refute such proof.” Id.

Here, VPR has presented evidence of actual confusion in the marketplace (Frija Decl. ¶¶ 

44-45). The seven factors weigh only in Plaintiff’s favor. Plaintiff has shown a probability of 

success on the merits of its trademark counterfeiting and infringement claim.

iii. Plaintiff is Likely to Succeed on the Merits of its False Designation of 

Origin Claim

Liability for false designation of origin, like trademark infringement, is also established 

here because the determining factor is whether the public is likely to be deceived or confused by 

the similarity of the marks at issue. See 15 U.S.C. § 1125(a); Two Pesos, 505 U.S. at 780. The 

Plaintiff has established the merits of its trademark counterfeiting and infringement claims, 

therefore likelihood of success is also shown for Plaintiff’s claim for false designation of origin.

iv. Plaintiff is Likely to Succeed on its Common Law Unfair Competition 

Claim

The same test applies to unfair competition as with federal trademark infringement. 

PetMed Express, Inc. v. MedPets.com, Inc., 336 F. Supp. 2d 1213, 1217-18 (S.D. Fla. 2004). 

Plaintiff has established the merits of its trademark infringement claims, therefore likelihood of 

success is also shown for Plaintiff’s unfair competition claim.

v. Plaintiff is Likely to Succeed on its Common Law Trademark 

Infringement Claim

The same test applies to common law trademark infringement as to federal trademark 

infringement. See PetMed Express, Inc., 336 F. Supp. 2d at 1217-18. Plaintiff has satisfied the 

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three elements of its federal trademark infringement claims, therefore common law trademark 

infringement is also established.

B. Plaintiff is Suffering Irreparable Injury

“[A] sufficiently strong showing of likelihood of confusion [caused by trademark 

infringement] may by itself constitute a showing of ... [a] substantial threat of irreparable harm.” 

Ferrellgas Ptnrs., L.P. v. Barrow, 143 Fed. Appx. 180, 191 (11th Cir. 2005) citing McDonald’s 

Corp. v. Robertson, 147 F.3d 1301, 1310 (11th Cir. 1998). A finding of irreparable injury 

following a showing of likelihood of confusion is virtually always made in a case such as this, 

where a plaintiff has demonstrated it will lose control of its reputation as a result of a defendant’s 

activities. Id.

A likelihood of confusion exists herein because Weiboli’s use of ELFBAR name is 

deceives consumers concerning the source of e-cigarette products called ELF. (Frija Decl. ¶ 48). 

VPR has no adequate remedy at law so long as Weiboli is able to continue to use the ELF Mark 

because of VPR’s hardship from loss of sales and its inability to control the marketplace. (Frija 

Decl. ¶ 49). Weiboli is benefiting from the goodwill that VPR invested to establish the ELF mark 

in the e-cigarette marketplace. (Frija Decl. ¶ 50). Weiboli is being unjustly enriched by its 

deliberate and willful activities which are causing confusion in both the retail and wholesale 

marketplaces. (Frija Decl. ¶ 51).

C. The Balance of Hardships Tips Sharply in Plaintiff’s Favor

VPR has expended significant resources to marked ELF e-cigarette products and ecigarette accessory products. (Frija Decl. ¶ 23). Defendants should not be permitted to continue 

to sell their e-cigarettes under the ELFBAR name because Plaintiff will suffer suffer both 

financial harm and nonmonetary harm to its goodwill and reputation. (Frija Decl. ¶ 46). VPR’s 

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ELF Original Auto Draw Conceal Kit product has lost market share and sales since the Weiboli 

ELFBAR product was introduced. (Frija Decl. ¶ 47).

Meanwhile, Defendants will suffer no legitimate hardship in the event a preliminary 

injunction is issued, because Defendants have no right to engage in their present infringing 

activities and were on notice by the USPTO that their product was potentially confusing.

D. The Relief Sought Serves the Public Interest

The public has an interest in not being misled as to the origin, source, or sponsorship of 

trademarked products. Nailtiques Cosmetic Corp. v. Salon Sciences, Corp., 1997 WL 244746, 5, 

41 U.S.P.Q.2d 1995, 1999 (S.D. Fla. 1997) (“The interests of the public in not being victimized 

and misled are important considerations in determining the propriety of granting injunctive 

relief.”). Where, as here, there is a likelihood of confusion created by a defendant’s use of the 

plaintiff’s mark, “the public interest would be served by a preliminary injunction.” It’s A 10, Inc. 

v. Beauty Elite Grp., Inc., 932 F. Supp. 2d 1325, 1333 (S.D. Fla. 2013). Here, the public interest 

favors the issuance of the requested relief to avoid further harm to the public.

IV. BOND 

Federal Rule of Civil Procedure 65(c) provides that no preliminary injunction

shall issue except upon the giving of security by the applicant, in such sum as 

the court deems proper, for the payment of such costs and damages as may be 

incurred or suffered by any party who is found to have been wrongfully 

enjoined....

District courts have the discretion to issue a preliminary injunction without requiring Plaintiffs 

to give security, notwithstanding the seemingly mandatory language of the rule. Tancogne v. 

Tomjai Enterprises Corp., 408 F. Supp. 2d 1237, 1252 (S.D. Fla. 2005). VPR does not believe 

that a bond is necessary since any goodwill that it has developed under ELFBAR is minimal. 

Moreover, injunctions granted pursuant to the Lanham Act, 15 U.S.C. § 1116(a), do not 

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mandate the posting of security. However, VPR stands ready to post a bond to protect the ELF 

Mark should the Court find that a nominal bond is necessary.

V. CONCLUSION

In view of the foregoing, Plaintiff respectfully requests this Court enter an order granting 

preliminary injunction against the Defendants to prevent any further imminent and irreparable 

harm and enjoin Defendants from the following actions: 

a. using Plaintiff’s trademark, and any imitation design that looks substantially 

similar to Plaintiff’s trademark; 

b. selling any products or services using Plaintiff’s trademark; and 

c. advertising or marketing any products or services using any of Plaintiff’s 

trademark.

Plaintiff also asks that this Court set this Motion for hearing, and after such hearing, that 

this Court issue a preliminary injunction against the Defendants. Plaintiff further asks this Court 

to award Plaintiff such other and further relief as the Court may deem just and proper. 

DATED: October 14, 2022 Respectfully submitted,

/s/ Joel B. Rothman

JOEL B. ROTHMAN

Florida Bar Number: 98220

joel.rothman@sriplaw.com

LAYLA T. NGUYEN

Florida Bar Number: 1024723

layla.nguyen@sriplaw.com

SRIPLAW, P.A.

21301 Powerline Road

Suite 100

Boca Raton, FL 33433

561.404.4350 – Telephone

561.404.4353 – Facsimile

Counsel for Plaintiff VPR Brands, LP

Case 9:22-cv-81576-AMC Document 5 Entered on FLSD Docket 10/14/2022 Page 18 of 19
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CERTIFICATE OF SERVICE

The undersigned does hereby certify that on September 29, 2022, a true and correct copy 

of the foregoing document was served by electronic mail by the Court’s CM/ECF System to all 

parties listed below on the Service List.

/s/ Joel B. Rothman 

SERVICE LIST

Miss Carrie A. Shufflebarger

Thompson Hine LLP

312 Walnut Street

Suite 1400

Cincinnati, OH 45202

Carrie.Shufflebarger@ThompsonHine.com

Attorney for Shenzhen Weiboli Technology 

Co. Ltd.

Ylsn Distribution LLC

495 N Oracle Road

Suite 105

Tucson, AZ 85705

Pro Se

Ecto World LLC

2225 Kenmore Ave.

Suite 110

Buffalo, NY 14207

Pro Se

Safa Goods LLC

1212 Market Circle

Port Charlotte, FL 33948

Pro Se

D&A Distribution LLC

202 Bourne Blvd.

Suite 80

Savannah, GA 31408

Pro Se

UNISHOW (U.S.A.), INC.

5902 Sovereign Drive

Suite B

Houston, TX 77036

Pro Se

SV3 LLC

2303 N 44th Street

Suite 2

Phoenix, AZ 85008

Pro Se

Kingdom Vapor Inc.

226 5th Ave

Clarion, PA 16214

Pro Se

Case 9:22-cv-81576-AMC Document 5 Entered on FLSD Docket 10/14/2022 Page 19 of 19