1 

UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

1:22-cv-24270-GAYLES 

NINGBO YONGJIA AIDUO AUTO PARTS 

MANU CO. , LTD., 

 FILED UNDER SEAL 

Plaintiff, 

v. 

THE INDIVIDUALS, PARTNERSHIPS AND 

UNINCORPORATED ASSOCIATIONS IDENTIFIED 

ON SCHEDULE “A”, 

Defendants. 

_________________________________________________/ 

PLAINTIFF’S, SEALED EX PARTE MOTION FOR ENTRY OF TEMPORARY 

RESTRAINING ORDER, PRELIMINARY INJUNCTION, 

AND ORDER RESTRAINING TRANSFER OF ASSETS 

Plaintiff, NINGBO YONGJIA AIDUO AUTO PARTS MANU CO., LTD., (hereinafter 

referred to as “Plaintiff”), by and through undersigned counsel and pursuant to 35 U.S.C. §§ 283, 

284 Fed. R. Civ. P. 65, and 28 U.S.C §§ 1498 and 1651(a), respectfully moves on an Ex Parte 

basis for entry of temporary restraining order, including preliminary injunction and an order 

restraining transfer of assets (“Motion for TRO”) against Defendants, the Individuals, 

Partnerships, and Unincorporated Associations (collectively, the “Defendants”) identified on 

Schedule “A”, attached hereto. In support thereof, Plaintiff respectfully submits the following 

Memorandum of Law. 

MEMORANDUM OF LAW

I. INTRODUCTION 

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A. Plaintiff is the owner of a United States Design Patent, No. US D 957,138S, for an 

ornamental design of a snow brush which Plaintiff uses for manufacturing, advertising, marketing, 

offering for sale and/or soliciting the sale of retail goods, specifically snow brushes. Plaintiff has

filed this patent infringement lawsuit against Defendants, as e-commerce sellers that manufacture, 

distribute, market, solicit, advertise, offer for sale and/or display content infringing on Plaintiff’s 

registered patent through various e-commerce platforms, including but not limited to; Amazon, 

AliExpress, Walmart, Wish and eBay. See Pl.’s Am. Compl., Schedule “A” (ECF No. 7). Every 

time Defendants offer to sell and/or sell a product using Plaintiff’s Patent there is a direct loss, for 

which monetary damages cannot adequately compensate because monetary damages fail to 

address the loss of control over Plaintiff’s intellectual property and goodwill. See Declaration of 

Ningbo Yongjia Aiduo Auto Parts Manu Co., Ltd., January 4, 2023 at ¶¶ 10-11 (“Yongjia Decl.”) 

(ECF No. 8), attached hereto. 

The Patent Act allows Plaintiff to recover the total illegal profits gained through 

Defendants’ manufacture, offer for sale and/or sales of infringing goods. See 35 U.S.C. § 289. 

To preserve that disgorgement remedy, Plaintiff seeks an ex parte order restraining Defendants’ 

assets including funds specifically transmitted through all possible online marketplace payment 

providers, including but not limited to AliExpress, Amazon, Amazon Pay, Alipay, Dhgate, Dhpay, 

Joom, Paypal, Wish, Wishplay, Ebay and Taobao platforms (collectively referred to as “financial 

entities”). Plaintiff seeks this remedy because as a result of Defendants flooding the e-commerce 

marketplace with unauthorized reproductions and derivatives using Plaintiff’s Patent, it is highly 

probable that Plaintiff will continue to suffer irreparable harm unless Defendants’ infringing 

activity is stopped by this Court. See Yongjia Decl.at ¶¶ 18-22 (ECF No. 8). 

II. STATEMENT OF FACTS 

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A. Plaintiff’s Patent 

Plaintiff owns one (1) United States Design Patent, No. US D 957,138S, for an ornamental 

design of a snow brush (hereinafter “Plaintiff’s Patent” or “138 Patent”). Plaintiff’s Patent has 

been registered with the United States Patent and Trademark Office (“USPTO”) and is protected 

from infringement under federal patent law. See Pl.’s Am. Compl. at Ex. No. 1 (ECF No. 7-1). 

Plaintiff demonstrated he is the owner of the 138 Patent by submitting copies of the U.S. Design 

Patent: 1) No. US D 957,138S, Date: July 12, 2022. See Pl.’s Am. Compl. at Ex. 1 (ECF No. 7-

1); see also Yongjia Decl.at ¶ 6 (ECF No. 8). 

Plaintiff is the owner of all rights, title and interest to the 138 Patent, which has been used 

in connection with the manufacturing, advertising, offer for sale and/or sale of Plaintiff’s snow 

brushes. Id. at ¶ 8 (ECF No. 8). Plaintiff advertises, offers for sale and sells the snow brush 

depicted in the 138 Patent in authorized e-commerce stores such as Amazon, among others. Id. 

(ECF No. 8). Plaintiff has expended time, money and other resources developing, advertising and 

otherwise promoting the 138 Patent. Id. at ¶ 9 (ECF No. 8). Plaintiff suffers irreparable injury any 

time unauthorized sellers, such as Defendants, sell or offer to sell goods using identical or 

substantially similar copies or derivatives of the 138 Patent. Id. at ¶ 10 (ECF No. 8). 

Furthermore, Plaintiff has expended a significant amount of resources in connection with 

patent enforcement efforts, including legal fees and investigative fees to protect its Patent against 

counterfeit actions. See Pl.’s Am. Compl. at Ex. No. 1 (ECF No. 7-1). 

B. Defendants’ Patent Infringement 

Without Plaintiff’s permission or license, Defendants are manufacturing, promoting, 

selling, reproducing, offering for sale, and/or distributing goods using Plaintiff’s 138 Patent 

within this District through various Internet based e-commerce stores and fully interactive 

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commercial Internet websites operating under their seller identification names (“Seller IDs”), as 

set forth in Schedule A of the Amended Complaint. See Pl.’s Am. Compl. at Ex. No. 2 “Schedule 

A” (ECF No. 7-2); see also Yongjia Decl.at ¶ ¶ 17-18 (ECF 8). 

As part of its ongoing investigation regarding the sale of infringing products utilizing 

Plaintiff’s 138 Patent, Defendants’ Internet based e-commerce stores were accessed under their 

respective Seller IDs through the Amazon, eBay, AliExpress and Walmart platforms, as identified 

on Schedule A. See Yongjia Decl.at ¶¶ 12-14 (ECF No. 8). Web page captures and screenshots 

were taken of the Defendants’ infringing products, as they appeared on Defendants’ online ecommerce stores, and determined that products are being offered for sale using unauthorized 

and infringing copies of the 138 Patent and orders were initiated via each Defendants’ Seller 

IDs. see Yongjia Decl.at ¶¶ 14-16 (ECF No. 8); see also Declaration of Humberto Rubio, January 

12, 2023 at ¶ 5 (“Rubio TRO Decl.”) (ECF No. 9), attached hereto and ECF No. 7. In support of 

this Motion for TRO, Plaintiff has obtained and provided the court with evidence, clearly 

demonstrating that Defendants are engaged in the advertising, offering for sale, and/or sale of 

infringing versions of Plaintiff’s 138 Patent and that Defendants accomplish their sales of 

infringing goods via the Internet through their e-commerce stores. see Yongjia Decl.at ¶¶ 14-16 

(ECF No. 8); see also Rubio TRO Decl. at ¶¶ 5 (ECF No. 9) and Schedule B (ECF No. 9 1-7). 

A simple comparison of Defendants’ infringing goods with Plaintiff’s 138 Patent and any 

layman can observe Defendants’ blatant infringement of Plaintiff’s exclusive patent as the images 

that depict the design are virtually exact duplicates or substantially similar images to Plaintiff’s 

138 Patent. See Plaintiff’s 138 Patent (Pl.’s Am. Compl. at Ex. 1 (ECF No. 7-1) against 

screenshots of Defendants’ products on their e-commerce stores. See Schedule B (ECF No. 9 1-

7), Rubio TRO Decl. at ¶ 5 (ECF No. 9) and Yongjia Decl.at ¶¶ 12-14 (ECF No. 7). 

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Defendants obtain their sales proceeds, from the e-commerce platforms, by using money 

transfer, and/or retention processing services with PayPal, Inc., and/or having their sales 

processed using an aggregate escrow account in order to receive monies from the sale of 

infringing goods. see Rubio TRO Decl. at ¶¶ 7-9 (ECF No. 9). The escrow accounts on these ecommerce platforms are held in various financial institutions, including AliExpress, Amazon, 

Amazon Pay, Alipay, Dhgate, Dhpay, Joom, Wish, Paypal, Wishplay, Ebay and Taobao among 

others. Id. 

Consequently, Plaintiff is enduring continuous damages to its Patent at the hands of the 

Defendants herein, who unlawfully reproduce goods using Plaintiff’s 138 Patent to sell for 

substantial profits. In addition, the goodwill associated with Plaintiff’s 138 Patent is being 

harmed and if Defendants’ willful and intentional infringing activities are not preliminarily and 

permanently enjoined by this Court, Plaintiff and the consuming public will continue to be 

harmed. See Yongjia Decl. at ¶¶ 16-20 (ECF No. 8); see also Pl.’s Am. Compl. at ¶ 27 (ECF No. 

7). 

III. ARGUMENT 

A. Temporary Restraining Order and Preliminary Injunction Standard 

The Supreme Court held that in patent disputes, “the decision whether to grant or deny 

injunctive relief rests within the equitable discretion of the district courts, and that such discretion 

must be exercised consistent with traditional principles of equity” ebay Inc. v. MercExchange, 

L.L.C., 547 U.S. 388, 394 (2006). Furthermore, the Patent Act, provides that courts may grant 

injunctive relief on such terms as it may deem reasonable to prevent or restrain infringement. Id. 

at 392 (quoting 35 U.S.C. § 283). The Patent Act also states that "patents shall have the attributes 

of personal property," including "the right to exclude others from making, using, offering for sale, 

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or selling the invention” Id. (quoting 35 U.S.C. § 261). 

In a patent case, in order to obtain a preliminary injunction, a party must demonstrate; (1) 

a substantial likelihood of the patentee’s success on the merits, (2) irreparable harm if the 

injunction were not granted, (3) the balance of hardships between the parties, and (4) that granting 

the injunction would not disserve the public interest. Pass & Seymour, Inc. v. Hubbell, Inc., 532 

F. Supp. 2d 418, 427 (N.D.N.Y. 2007); Suntrust Bank v. Houghton Mifflin Company, 268 F.3d 

1257, 1265 (11th Cir. 2001); see also Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F. 3d 

982, 985 (11th Cir. 1995) (affirming entry of preliminary injunction and freezing of assets relying 

on affidavits and hearsay materials). 

Plaintiff is entitled to a preliminary injunction based on its patent infringement claim 

because it can show all four factors. See Tinnus Enters., LLC v. Telebrands Corp., 846 F. 3d 1190, 

1202 (Fed. Cir. 2017). 

B. Likelihood of Success on the Merits 

“Each issued patent carries with it a presumption of validity under 35 U.S.C. § 282.” Id. at 

1205. Presumption of validity carried by each issued patent is sufficient to establish a likelihood 

of success on the validity issue. Id. (quoting Titan Tire Corp. v. Case New Holland, Inc., 566 F. 

3d 1372, 1377 (Fed. Cir. 2009). In this matter, Plaintiff demonstrated it is the owner of the 138 

Patent registered with the USPTO: U.S. Design Patent No. US D 955,138S, Date: July 12, 2022. 

See Pl.’s Am. Compl. at Ex. 1 (ECF No. 10-1); see also Yongjia Decl. at ¶ 6 (ECF No. 11). 

Design patent infringement requires a showing that the accused design is substantially the 

same as the claimed design. The criterion is deception of the ordinary observer, such that one 

design would be confused with the other. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F. 3d 665, 

679 (Fed. Cir. 2008). Under this test, the central inquiry is whether an “ordinary observer,” who 

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is familiar with the prior art, would find the overall appearance of the accused product to be 

“substantially the same” as the overall appearance of the patented design. Id. at 677; see also 

Amini Innovation Corp. v. Anthony Cal., Inc., 439 F .3d 1365, 1372 (Fed. Cir. 2006). An 

infringing product need not be an exact copy of the patented design, and Defendants cannot 

escape infringement by introducing minor variations into an otherwise copycat product. 

Egyptian Goddess, 543 F. 3d at 670. 

Design patents are typically claimed as shown in drawings, and claim construction must 

be adapted to a pictorial setting. Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294, 1303 (Fed. 

Cir. 2010); see also Contessa Food Prods., Inc. v. Conagra, Inc., 282 F. 3d 1370, 1377 (Fed. 

Cir. 2002). In this case, no detailed verbal description of the figures in the 138 Patent is 

necessary because each “illustration in the drawing views is its own best description.” Crocs, 

Inc. at 1303. Accordingly, the claim of Plaintiff’s 138 Patent should be construed only as an 

ornamental design for a snow brush as shown in Plaintiff’s Patent See Pl.’s Am. Compl. at Ex. 1 

(ECF No. 7-1). 

In this matter, Plaintiff asserts a simple comparison of Defendants’ infringing goods, 

which are being offered for sale and/or sold in the United States, with Plaintiff’s 138 Patent and 

any “ordinary observer” can perceive Defendants’ blatant infringement of Plaintiff’s exclusive 

patent as the designs are virtually duplicates or substantially similar design and images to 

Plaintiff’s Patent. See ECF No. 7-1, against screenshots of Defendants’ products on their ecommerce stores Schedule B (ECF No. 9 1-7), Rubio TRO Decl. at ¶ 5 (ECF No. 9) and Yongjia 

Decl. at ¶¶ 14-16 (ECF No. 8). In accordance with the Patent Act, the screenshot images 

demonstrate Defendants’ ongoing unauthorized promotion, offer for sale and/or sale of goods 

bearing Plaintiff’s 138 Patent in direct violation of Plaintiff’s federal rights to exclude others from 

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making, using, offering for sale, or selling the 138 Patent. 35 U.S.C. §§ 217 & 261; see also 

Tiffany (NJ), LLC v. Dongping, No. 10‐cv-61214, 2010 WL 4450451, (S.D. Fla. Oct. 29, 

2010) (finding unopposed declarations supporting intellectual property ownership and exact 

duplicates of asserted designs were sufficient to establish liability for infringement). 

As the side-by-side comparison below reveals, Defendants have misappropriated 

Plaintiff’s Patent ornamental design for snow brushes as shown in figure 1 through 4.1

Design Patent, No. US D 955,138S Infringing and Counterfeit Products 

1 Due to the number of Defendants, Plaintiff is enclosing a representative sample. However, 

Schedule “B” contains representative samples of all the counterfeit products.

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As shown above, Defendants’ snow brushes are the same or substantially the same as 

the design of the 138 Patent. According to the test prescribed by Egyptian Goddess, Defendants’ 

infringing, and counterfeit product infringes the 138 Patent. 

C. Plaintiff is Suffering Irreparable Injury 

A patent holder possesses “the right to exclude others from using his property.” ebay Inc., 

547 U.S. at 392. (citing Fox Film Corp.v. Doyal, 286 U.S. 123 (1932)). Defendants’ infringing 

conduct deprives Plaintiff of control over its 138 Patent and of its exclusive patent rights causing 

irreparable harm. See eBay, Inc. at 395 (holding violation of patent owner’s “right to exclude” 

renders monetary remedies inadequate in a wide range of circumstances). 

It is well-settled that, because the principal value of a patent is its statutory right to 

exclude, the nature of the patent grant weighs against holding that monetary damages will always 

suffice to make the patentee whole. Hybritech Inc. v. Abbott Laboratories, 849 F. 2d 1446, 1456 

(Fed. Cir. 1988). The patent statute provides injunctive relief to preserve the legal interests of 

the parties against future infringement which may have market effects never fully compensable 

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in money. Id. at 1457. 

In this matter, Defendants have blatantly copied Plaintiff’s work and have a total disregard 

for Plaintiff’s right to exclude them from using his 138 Patent causing irreparable harm to his 

efforts to advertise, market, offer for sale and sell his work. Yongjia Decl. at ¶¶ 18-19 (ECF No. 

8). Every time Defendants offer to sell and/or sell a product using Plaintiff’s 138 Patent there is 

a direct loss for which monetary damages cannot adequately compensate for because they fail 

to address the loss of control over Plaintiff’s intellectual property and goodwill. Yongjia Decl.at 

¶¶ 16-20 (ECF No. 8). Loss of quality control over goods sold utilizing Plaintiff’s 138 Patent 

is neither calculable nor precisely compensable because by Defendants flooding the e-commerce 

marketplace with unauthorized reproductions and derivatives of the 138 Patent, it is highly 

probable that Plaintiff will continue to suffer irreparable harm unless Defendants’ infringing 

activity is stopped. Yongjia Decl.at ¶¶ 18-22 (ECF No. 8). 

“[L]oss in market share” can itself constitute irreparable harm. Robert Bosch LLC v. 

Pylon Mfg. Co., 659 F.3d 1142, 1151 (Fed. Cir. 2001). A court “commit[s] a clear error of 

judgment” when it fails to find irreparable harm in the face of “evidence of . . . the parties’ direct

competition” and “loss in market share and access to potential customers resulting from [the 

defendant's] introduction of infringing” products. Id.; see also Novartis Consumer Health, Inc. 

v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 596 (3d. Cir. 2002) (“In a 

competitive industry where consumers are brand-loyal, we believe that loss of market share is 

a potential harm which cannot be redressed by a legal or an equitable remedy following a trial.”) 

(internal quotation marks and citations omitted). 

D. The Balance of Hardship Tips Sharply in Plaintiff’s Favor 

For the third factor in determining whether to issue a preliminary injunction, the Court 

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must balance the harm to the movant from the denial of the preliminary injunction with the harm 

that the non-movant will incur if the injunction is granted. Hybritech, 849 F.2d at 1457. The 

balance of the hardships in this case favors Plaintiff. A patent holder who is denied an injunction 

suffers serious delay in the exercise of the limited-in-time right to exclude, which constitutes a 

severe hardship. See Illinois Tool Works, Inc. v. Grip-Pak, Inc., 906 F. 2d 679, 683 (Fed. Cir. 

1990). This harm is amplified by the fact that Defendants are infringing a design patent, where 

the term of the patent is only 15 years. See 35 U.S.C. § 173. Plaintiff suffers a commercial 

disadvantage and harm to its product perception and reputation. Conversely, a preliminary 

injunction will only minimally harm Defendants and will not prevent them from selling their noninfringing products or from marketing non- infringing products. Defendants are also free to sell 

other goods that do not infringe the 138 Patent. 

Because Defendants are engaged in infringement activities, the only hardship they will 

suffer as a result of an injunction is court-ordered compliance with intellectual property laws. 

Adobe Systems, Inc. v. Brenengen, 928 F. Supp. 616, 618 (E.D.N.C. 1996). In other cases, the 

Courts have ruled that the evidence of irreparable harm to plaintiff far outweighs the harm that a 

preliminary injunction may cause Defendant. CB Fleet Co., Inc. v. Unico Holdings, Inc., 510 F. 

Supp. 2d 1078, 1083 (S.D. Fla. 2007) (holding a company cannot build a business on 

infringements and then argue that enforcing the law will cripple that business) CBS, Inc. v. 

PrimeTime 24 Joint Venture, 9 F. Supp. 2d 1333 (S.D. Fla.1998)). 

Presently, Defendants are promoting advertising, offering for sale and/or selling goods 

using Plaintiff’s 138 Patent, through their e-commerce stores. Yongjia Decl. at ¶12 (ECF No. 

8). Based on Defendants’ e-commerce stores, there is good cause to suspect Defendants are all 

residing and/or operating outside of the United States and/or redistribute products from 

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sources outside of the Unites States. Rubio TRO Decl. at ¶9 (ECF No. 9). Due to the ecommerce nature, Defendants can easily transfer, conceal and dissipate assets or modify ecommerce data within minutes after obtaining notice of this action leaving Plaintiff with 

irreparable injury and the Court with limited ability to grant relief. Rubio TRO Decl. at ¶13 

(ECF No. 9). 

Allowing infringement during the pendency of this lawsuit effectively grants the 

infringer a license for the pendency of this litigation and encourages others to infringe as well. 

Hybritech, 849 F.2d at 1456 (affirming finding of irreparable harm where, inter alia, absent 

injunction “other potential infringers will be encouraged to infringe”). Irreparable harm results 

when other infringement is encouraged because of the absence of an injunction. Id. 

In contrast, the entry of a temporary restraining order would serve to immediately stop 

Defendants from benefiting from the wrongful sale of goods using Plaintiff’s Patent and 

preserve the status quo until such time as a hearing can be held. See Dell Inc. v. Belgium 

Domains, LLC, Case No. 07-22674 2007 WL 6862341 (S.D. Fla. Nov. 21, 2007) (finding ex 

parte relief more compelling where Defendants’ scheme “is in electronic form and subject to 

quick, easy, untraceable destruction by Defendants.”) 

Defendants’ infringing activity is conducted without Plaintiff’s express assignment, 

authorization or licensing of his 138 Patent. Yongjia Decl. at ¶¶ 17-19 (ECF No. 8). 

Consequently, Defendants will suffer no legitimate hardship in the event a temporary restraining 

order is issued because Defendants have no right to engage in their present infringement activities. 

E. The Relief Sought Serves the Public Interest 

The public interest clearly favors maintaining the integrity of the intellectual property 

laws. Belushi, 598 F. Supp. at 37.; see also C.B. Fleet Co. 510 F. Supp. at 1084 (S.D. Fla. 2007) 

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(The public interest can only be served by upholding intellectual property protection and 

preventing the misappropriation of protected works.) 

“[P]ublic policy favors protection of the rights secured by valid patents.” Smith Int’l, 

Inc. v. Hughes Tool Co., 718 F.2d 1573, 1581 (Fed. Cir. 1983). “[P]rotection of patents furthers 

a strong public policy [that is] advanced by granting preliminary injunctive relief when it 

appears that, absent such relief, patent rights will be flagrantly violated.” H.H. Robertson, Co. 

v. United Steel Deck, Inc., 820 F.2d 384, 391 (Fed. Cir. 1987) (internal quotation marks and 

citation omitted). Indeed, “[w]ithout the right to obtain an injunction, the right to exclude 

granted to the patentee would have only a fraction of the value it was intended to have, and 

would no longer be as great an incentive to engage in the toils of . . . research.” Smith Int’l, 

Inc., 718 F.2d at 1578. 

Protecting Plaintiff’s 138 Patent is consistent with promoting the public interest. Salinger, 

607 F.3d at 82; see also CBS Broad., Inc. v. EchoStar Comm’ns. Corp., 265 F.3d 1193, 1198 

(11th Cir. 2001). Similarly in this matter, the public needs to be protected from being defrauded 

and buying Defendants’ infringing goods. 

IV. THE EQUITABLE RELIEF SOUGHT IS APPROPRIATE 

A. Ex Parte Temporary Restraining Order is Appropriate 

A court may only issue a temporary restraining order without notice to the adverse party 

or its attorney if: (a) specific facts in an affidavit or a verified complaint clearly show that 

immediate and irreparable injury, loss, or damage will result to the movant before the adverse 

party can be heard in opposition and (b) the movant’s attorney certifies in writing any efforts 

made to give notice and the reasons why it should not be required. Fed. R. Civ. P. 65 (b)(1). Ex 

parte temporary restraining orders “should be restricted to serving their underlying purpose of 

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preserving the status quo and preventing irreparable harm just so long as is necessary to hold a 

hearing, and no longer.” Granny Goose Foods, Inc. v. Brh. of Teamsters & Auto Truck Drivers 

Loc. No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974). A delay in seeking the preliminary 

injunction militates against a finding of irreparable harm. Wreal, LLC v. Amazon.com, Inc., 840 

F.3d 1244, 1248 (11th Cir. 2016). 

Defendants, through their e-commerce stores, promote, advertise, offer for sale and/or 

sell products that infringe on Plaintiff’s 138 Patent. See Yongjia Decl. at ¶10 (ECF No. 8). The 

entry of a temporary restraining order would serve to immediately stop Defendants from 

benefiting from their unauthorized use of Plaintiff’s 138 Patent and preserve the status quo until 

such time as a hearing can be held. Dell Inc. v. Belgium Domains, LLC, Case No. 07-22674, 

2007 WL 6862341 (S.D. Fla. Nov. 21, 2007) (finding ex parte relief more compelling where 

Defendants’ scheme “is in electronic form and subject to quick, easy, untraceable destruction by 

Defendants.”). 

Absent a temporary restraining order, without notice, Defendants can and will 

significantly alter the status quo before the Court can determine the parties’ respective rights. 

Rubio TRO Decl. at ¶13 (ECF No. 9). Significantly, because Defendants have complete control 

of their e-commerce stores, at issue and if notice of this action is given Defendants can easily 

modify the ownership of the e-commerce store, data, content, payment accounts, redirect 

consumers to other seller identification names, and transfer assets to other seller identification 

numbers. No notice has been provided to Defendant. Rubio TRO Decl. at ¶¶12-14 (ECF No. 9). 

As a result, this Court should prevent an injustice from occurring by issuing an ex parte 

temporary restraining order which precludes Defendants from displaying their infringing goods 

via their e-commerce stores and websites or modifying or deleting any related content or data. 

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Only such an order will prevent ongoing irreparable harm to Plaintiff and maintain the status 

quo. 

B. Entry of an Order Prohibiting Transfer of the Seller IDs During the 

Pendency of This Action Is Appropriate 

Plaintiff seeks an order temporarily prohibiting Defendants from transferring use or 

control of the Seller IDs being used and controlled by Defendants to other parties in order to 

preserve the status quo. Once they become aware of this lawsuit, Defendants can easily, and 

often will, change the ownership or modify their e-commerce store account, data and content, 

change payment accounts, redirect consumer traffic to other seller identification names, and 

transfer assets and ownership of the Seller IDs, and thereby frustrate the Court’s ability to grant 

meaningful relief. See Rubio TRO Decl. at ¶¶ 12-13 (ECF No. 9). As a result, Plaintiff seeks a 

temporary order prohibiting Defendants from transferring their e-commerce stores and domain 

names operating under the Seller IDs poses no burden on them, preserves the status quo, and 

ensures that this Court, after fully hearing the merits of this action, will be able to afford Plaintiff 

meaningful relief in accordance with the Patent Act. 

C. An Ex Parte Order Restraining Transfer of Assets Is Appropriate

In furtherance of an order temporarily restraining Defendants’ offer for sale and/or sale of 

Plaintiff’s 138 Patent, Plaintiff requests this Court also enter an Order limiting the transfer of 

Defendants’ unlawfully gained assets. Plaintiff has demonstrated above that it will likely 

succeed on the merits of its claims. Therefore and in accordance with the Patent Act, Plaintiff 

will be entitled to the payment of reasonable royalties and lost profits to Defendants throughout 

the course of their infringing scheme. 35 U.S.C. § 284. 

Defendants, through their e-commerce stores, have deliberately infringed on the 

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protections afforded to Plaintiff by federal patent laws. Plaintiff respectfully requests this Court 

grant additional ex parte relief identifying payment accounts and restraining the transfer of all 

monies held or received by financial institutions for the benefit of any one or more of the 

Defendants, and any other financial accounts tied thereto. SEC v. ETS Payphones, 408 F. 3d 

727, 734 (11th Cir. 2005) (finding it proper to enjoin all of the defendant’s assets, because it was 

necessary to preserve sufficient funds for the potential disgorgement in the case). 

Many circuit courts, including the Eleventh Circuit, have upheld the court’s authority to 

restrain assets. Levi Strauss & Co. 51 f. 3d at 987-988 (upholding the asset freeze in the case 

because it allowed appellants to petition the district court to modify the freeze). In Levi Strauss, 

the Eleventh Circuit upheld an order granting an asset restraint against an alleged counterfeiter 

where the complaint included a request for a permanent injunction and the equitable remedy of 

disgorgement of the alleged counterfeiter’s profits under Id. at 987. This Court has held that it 

may issue broad asset restraints to preserve the availability of permanent relief, including assets 

that are not directly traceable to the fraudulent activity that serves as a basis for the equitable 

relief requested. S.E.C. v. Lauer, 445 F. Supp. 2d 1362, 1364 (S.D. Fla. 2006) (upholding 

temporary freeze of all of defendant’s assets in order to maintain the status quo). 

In this case, Defendants’ blatant violations of federal patent laws warrant an ex parte 

order restraining the transfer of their ill-gotten assets. Moreover, as Defendants’ businesses are 

conducted anonymously over the Internet, Plaintiff has an additional cause for ex parte relief, 

as Defendants may easily transfer their assets without the Court’s or Plaintiff’s knowledge. 

V. A Bond Should Secure the Injunction 

No restraining order or 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 

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and damages as may be incurred or suffered by any party who is found to have been wrongfully 

enjoined or restrained. Fed. R. Civ. P. 65 (c). The amount of the bond is left to the discretion of 

the court. Carillon Importers, Ltd. v. Frank Pesce Int'l Grp. Ltd., 112 F. 3d 1125, 1127 (11th 

Cir. 1997). In light of Plaintiff’s evidence of infringement, Plaintiff respectfully requests this 

Court require it to post a bond of no more than Ten Thousand Dollars ($10,000.00). 

VI. CONCLUSION 

Plaintiff is enduring continuous damages to its 138 Patent at the hands of the Defendants 

in this matter, who unlawfully reproduce goods using Plaintiff’s 138 Patent to sell for substantial 

profits. Defendants are damaging the goodwill associated with Plaintiff’s 138 Patent and 

harming, tricking and confusing the public. As a result, Plaintiff respectfully seeks the granting, 

under seal, of this Motion for TRO and enter the Order as to Defendants in the form submitted 

herewith.

Respectfully submitted on this 12th day of January, 2023. 

LAW FIRM OF RUBIO & ASSOCIATES, P.A. 

Attorneys for Plaintiffs 

8950 SW 74 Ct., Suite 1804 

Miami, Fl 33156 

Telephone: (786) 220-2061 

Facsimile: (786) 220-2062 

Email: hrubio@rubiolegal.com

Email: apuentes@rubiolegal.cm 

Email: frubio@rubiolegal.com

Email: info@rubiolegal.com 

 

By:/s/ Humberto Rubio 

Humberto Rubio, Jr., Esq. 

Florida Bar No. 36433 

Felipe Rubio, Esq. 

Florida Bar No. 123059 

M. Arabella Puentes, Esq. 

Florida Bar No. 26825 

Case 1:22-cv-24270-DPG Document 10 Entered on FLSD Docket 01/12/2023 Page 18 of 18