IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Judge William J. Martínez

Civil Action No. 1:11-cv-2327-WJM-MEH 

AVAYA, INC., a Delaware corporation, 

 Plaintiff, 

v. 

UNITED PACIFIC (USA) CORP., a New York corporation, 

 Defendant. 

 

ORDER GRANTING PLAINTIFF’S EX PARTE 

APPLICATION FOR SEIZURE OF COUNTERFEIT GOODS, 

TEMPORARY RESTRAINING ORDER, ORDER TO SHOW CAUSE 

RE: PRELIMINARY INJUNCTION, AND EXPEDITED DISCOVERY 

FILED UNDER SEAL PURSUANT TO 15 U.S.C. § 1116 (d)(8) 

AND D.C.COLO.LCivR 7.2 

This matter came on before the undersigned on Avaya, Inc.’s (“Avaya” or 

“Plaintiff”) Ex Parte Application (“Application”) for a Seizure Order, Temporary 

Restraining Order, Order to Show Cause Re: Preliminary Injunction, and Expedited 

Discovery against Defendant United Pacific (USA) Corp. (“Defendant” or “UP”). All 

appearances are as noted on the Court’s record. 

The Court has carefully and thoroughly reviewed the Application and all 

supporting papers, including the affidavits of Russell W. Binns, Adam George, Sheldon 

Morgan, Joseph Callahan, Christian Hendrickson, and Kent Christensen. Having 

considered the Plaintiff’s Application, supporting papers, and the relevant facts: 

THE COURT FINDS AS FOLLOWS:

1. Avaya is likely to succeed on the merits of its claim for trademark 

infringement under 15 U.S.C. §§ 1114 and 1125 because (a) Avaya is the owner of the 

famous Avaya marks, and (b) consumers are likely to be confused as to the source of 

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origin regarding the non-genuine Avaya telephones that Defendant has sold and is 

advertising as “new;” 

2. Avaya is also likely to succeed on the merits of its Deceptive Trade 

Practices Act and Unjust Enrichment claims because Defendant’s marketing and sales 

of Avaya counterfeit product are false and disparaging under C.R.S. § 6-1-105; 

3. There is a high probability that Avaya will be irreparably injured if 

Defendant is not enjoined from continuing its infringing activities, because Avaya has 

established a likelihood of confusion, and has established significant goodwill that is 

associated with its famous marks; 

4. The balance of hardships tips in Avaya’s favor since Avaya will continue to 

suffer irreparable harm and Defendant will not suffer significant injury through entry of 

the requested relief, because Avaya is entitled to gather evidence regarding sales of 

counterfeit Avaya products and Defendant has no legal right to possess counterfeit 

goods; 

5. The public interest favors Avaya’s right to injunctive relief in this case, 

because the Lanham Act is designed to protect consumers from confusion over the 

source of the origin of the goods, and to protect an owner’s intellectual property rights 

and there is no public interest in protecting counterfeit goods or favoring those who 

possess and sell them; 

6. Avaya has provided notice to the United States Attorney’s Offices in the 

judicial districts where the seizures will occur as well as the United States Attorney for 

the District of Colorado; 

7. Avaya has not publicized the seizure requested; 

8. Avaya has established that there is a good faith basis to believe that the 

Avaya products (defined herein to include the counterfeit or imitation Avaya products), 

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Records, Equipment, and Data that are the subject of Avaya’s Application will be 

located at the Premises as that term is defined herein; 

9. Avaya has established that, if provided notice of this proceeding, 

Defendant is likely to destroy, move, hide, or otherwise make the Avaya products 

(defined herein to include the counterfeit or imitation Avaya products), Records, 

Equipment, and Data inaccessible to the Court. 

10. Avaya cannot protect its interest in its Mark absent entry of this Order. 

THE COURT FURTHER FINDS: it is necessary to grant this Order without notice 

to Defendant and without hearing because of the immediacy and irreparability of the 

injury which Avaya will suffer and because Defendant is likely to dispose of evidence 

relating to its counterfeiting activities if it is given advance notice of Avaya’s Application 

for this Order. 

IT IS THEREFORE ORDERED AS FOLLOWS: 

Temporary Restraining Order And Search And Seizure

1. Defendant, and all its representatives, servants and agents, employees, 

officers, directors, partners, attorneys, and all other persons under their control or who 

are in active concert or participation with them, are hereby enjoined, restrained, and 

ordered, pending the hearing on the Order to Show Cause Re: Preliminary Injunction, to 

comply with the terms of this Order as follows: Defendant and all its representatives, 

employees, officers, servants and agents or those who are in active concert or 

participation with them, are prohibited from producing, reproducing, selling, distributing, 

exposing, offering for sale, exhibiting or aiding in any way the production, reproduction, 

sale distribution, exposure, offering for sale, or exhibition in any form, counterfeit or 

Imitation Avaya Product (as defined below), and from marketing, advertising, or 

promoting the same in any way. 

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2. Defendant, and all its representatives, servants and agents, employees, 

officers, directors, partners, attorneys, and all other persons under its control or who are 

in active concert or participation with them, are hereby ordered to cooperate with 

Avaya’s execution of the search of the Premises (identified below) and Imitation Avaya 

Product and other records in Defendant’s possession bearing Avaya’s name and 

information relating to the improper acquisition and sale of same. 

3. Defendant shall show cause at a hearing before this Court on September 

22, 2011 at 3:30 p.m. in Courtroom A601 of the Alfred Arraj U.S. Courthouse in Denver, 

Colo. as to why a Preliminary Injunction should not be entered, pending final 

determination of this action, enjoining Defendant and all its representatives, employees, 

officers, servants, and agents or those who are in active concert or participation with 

them, from producing, reproducing, selling, distributing, exposing, offering for sale, 

exhibiting or aiding in any way the production, reproduction, sale distribution, exposure, 

offering for sale, or exhibition in any form, counterfeit or Imitation Avaya Product (as 

defined below), and from marketing, advertising, or promoting the same in any way. 

IT IS FURTHER ORDERED that Defendant comply with the Temporary 

Restraining Order as follows: 

Commencement and Term

4. This Order shall become effective against Defendant upon signature by 

the Court and shall remain in effect for fourteen (14) days thereafter, unless otherwise 

stipulated to by the parties or ordered by the Court. As specified further below, the 

seizure of materials subject to this Order must take place within seven (7) days of the 

date of this Order. 

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Explanation of Search and Seizure Authority

5. Plaintiff’s counsel shall ensure that the nature and effect of this Order is 

explained fairly and in everyday language to the persons served with this Order. In 

particular that: 

(a) Defendant is ordered to allow the Investigation Teams1

 to search 

for and seize any Avaya Products (defined herein to include counterfeit or Imitation 

Avaya Products), Records, Equipment and Data, as described below, which shall 

include telephones and/or components, hardware, or evidence of same at (1) Masa 

Trucking Co.’s warehouse located at 231 West 135th Street, Los Angeles, California 

90061 where the counterfeit goods are believed to be located (“California Property”), 

and (2) Defendant UP’s principal place of business at One Cross Island Plaza, Suite 

229B, Rosedale, NY 11422 where documentary evidence indicating its source for goods 

is believed to be located (“NY Property”), (collectively “the Premises”). Persons 

enforcing this Order may copy the Records and Data, photograph, videotape or 

otherwise record the Premises and the Inventory to carry out the purposes specified in 

this Order. 

 

1

 There shall be two investigation teams as discussed below. “Investigation Team A” which will conduct 

the search of the premises located in California shall be comprised of the following persons: 

representatives of the U.S. Marshal’s office (or other law enforcement officer(s)), Plaintiff’s counsel (and 

staff); two experts retained by Avaya to access and copy information on Defendant’s computers, 

computerized systems and devices; no more than four document duplication personnel to be retained by 

Avaya; no more than four persons to package and load the counterfeit product, and no more than two 

Avaya representatives to identify and distinguish between Avaya’s genuine products and counterfeit 

products. 

“Investigation Team B” which will conduct search of the premises at the New York location shall be 

comprised of the following persons: representatives of the U.S. Marshal’s office (or other law enforcement 

officer(s)), Plaintiff’s counsel (and staff); no more than four technical experts from Avaya or experts 

retained by Avaya to access and copy information on Defendant’s computers, computerized systems and 

devices; no more than four document duplication personnel to be retained by Avaya; and no more than 

two Avaya representatives to identify and distinguish between Avaya’s genuine products and counterfeit 

products if necessary. 

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(b) Defendant, and those employees and/or agents located at the 

Premises, are ordered to provide the Investigation Teams with their full and correct 

names and to cooperate with the persons enforcing this order in all matters related to its 

enforcement. 

(c) Other than as provided in subsection (e) below, Defendant is 

prohibited from disclosing to, or discussing with any other person (including, without 

limitation, any supplier, customer, prospective supplier, prospective customer, partner, 

or affiliate, of Defendant, or any agent, employee or representative of any of them) the 

existence of these proceedings or the Orders herein. 

(d) If Defendant refuses to comply with the terms of this Order, it may 

be found in contempt of Court, which can result in fines or imprisonment. 

(e) Defendant may consult a lawyer before complying with this Order, 

provided that such advice is sought and obtained immediately, and that the time period 

in which Defendant may delay complying with this Order while consulting or attempting 

to consult with a lawyer, shall in no event extend for more than four (4) hours from the 

time of its receipt of this Order. 

(f) The Unites States Marshal and/or other such police officers, law 

enforcement officers, and authorities in the locations where this Order is sought to be 

enforced, shall assist in keeping the peace and in the carrying out of its terms as may 

be required by the Investigation Teams; 

(g) The United States Marshal accomplishing such seizure shall 

employ whatever reasonable force is necessary to open and enter the premises of the 

Defendant, and/or the location to be searched, regardless whether said premises and/or 

locations are locked or unlocked or occupied or unoccupied and to inspect the Premises 

as explained below. It is further ordered that Plaintiff’s attorneys and persons under 

their supervision (i.e., the Investigation Teams) shall accompany the United States 

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Marshal and/or his or her deputies at the seizure and shall identify, inventory and take 

possession of the goods that are seized as more fully detailed below. Anyone 

interfering with the execution of this order is subject to arrest by the law enforcement 

officials. 

Execution of Search and Seizure

6. For the purposes of determining whether Defendant possesses 

information relating to the creation, acquisition, reception, copying, marketing, sale or 

disposition of infringing products, Defendant or any person in charge of the Premises, 

shall allow the Investigation Teams to search for, inspect, analyze, copy, and seize (if 

counterfeit) the following: 

(a) Avaya Products (the “Avaya Products”): 

 Imitation Avaya Products, namely: all physically tangible 

objects purporting to be manufactured by Avaya but not 

manufactured by Avaya, including, but not limited to telephones, 

telephone switches, varistor pads, circuit packs, PCB’s, display 

brackets, telephone buttons, and/or other telephone 

components; 

 Any other items, of any type or nature, displaying an Avaya 

trademark, including, but not limited to: documents, packaging 

material or tools, and/or software referencing or setting forth in 

any way the engineering services in the field of 

telecommunications such as installation, maintenance, repair 

services, distributorship services and operational services; 

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(b) Avaya-Related2 Records (“Records”): 

 Accounting records, namely: inventory records; purchasing 

records, disbursement records, accounts payable, sales 

records, records of receipt of funds, accounts receivable and 

general ledgers, product lists, supplier and customer invoices, 

receipt and delivery records, shipping records, invoices, 

proposals, tender documents, quotes, bids, bills of sale, 

manifestos, bills of lading; 

 Letters, correspondence, e-mails and inventory; 

 Computers and electronic storage media or devices 

(“Equipment”); 

 Interim and annual financial statements; banking records, 

namely bank statements, cancelled checks and deposit slips; 

credit card records, telephone bills and records, safety deposit 

boxes and keys for safety deposit boxes, long distance phone 

records, passbooks; and 

 All information, materials, documents, records, statements, 

(whether inscribed on paper or stored in electronic form) and 

Equipment which may include information relating to the 

creation, acquisition, reception, sale, publication or disposition 

of infringing products. 

(c) Avaya-Related Data stored on Equipment (“Data”): 

 

2

 “Avaya-Related” means those items related to the manufacture, sale, or receipt of the Avaya 

Products, as that term is defined herein. 

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 All written, recorded, computerized, or electronically-stored 

information, however produced or reproduced, including without 

limitation: databases, e-mail messages, reports, computer 

printouts, facsimiles, forms, sound recordings, lists, 

memoranda, notes, handwritten materials, diagrams, drawings, 

sketches, graphs, charts, correspondence, telegrams, 

schedules, photographs, films, videotapes, agreements, 

contracts, meeting minutes, financial statements, or any other 

tangible thing or writing within the scope of the Federal Rules of 

Civil Procedure. The term “Data” also includes drafts of any of 

the foregoing and copies of any of the foregoing to the extent 

that any copy differs from the original. 

(d) Avaya Products, Avaya-Related Records, Equipment, and AvayaRelated Data are hereinafter referred to as “Inventory”. 

(e) Defendant shall preserve all Inventory in their possession in any 

office or other location that relate or refer to Avaya, Avaya products, or Avaya 

trademarks. 

7. Any Inventory that is searched and inspected during the execution of this 

Order, and—upon analysis conducted as quickly as reasonably possible by the 

Investigation Teams—is found to not contain any Avaya-related information, such 

Inventory shall be returned to the Defendant forthwith and without any copies of any 

information contained therein being made or retained by Avaya. In the case of AvayaRelated Inventory other than Avaya Products, the Investigation Teams shall return to 

Defendant all originals after having made and retained a copy of the information found 

therein. Plaintiff is permitted to retain the Avaya Products. 

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8. Defendant, or any person in charge of the Premises, is to disclose to the 

Investigation Teams the location, other than at the Premises, of any and all Inventory as 

described and defined herein within their possession, power or control. Avaya may 

apply to the Court for an extension of this Order to any such locations. If Avaya-Related 

Records are indicated to be in storage at accountants’ offices or financial institutions, 

said accountants’ offices or financial institutions shall provide Plaintiff’s counsel with a 

copy of the Avaya-Related Records, whether existing in paper or computerized form. 

Plaintiff shall forthwith return all such Avaya-related records to such offices or 

institutions after making and retaining a copy of same. 

9. Upon execution, Plaintiff’s counsel shall serve on the Defendant a copy of 

this Order. If the actions of Defendant make any service provided for in this Order not 

reasonably possible, leaving a copy of the documents to be served at the Premises and 

sending a copy of the Order to Defendant by registered or overnight mail shall be 

deemed to be proper service. 

 10. Pursuant to 15 U.S.C. § 1116(d)(9), the United States Marshal and/or any 

such other police officers, law enforcement officers, and authorities in those locations 

where this Order is sought to be enforced, shall serve a copy of the Order and carry out 

the seizure described herein. 

Access and Cooperation

11. Defendant, or any persons in charge of the Premises, shall permit the 

respective Investigation Teams, to enter the Premises between 7 a.m. and 9 p.m., 

Monday to Friday for the purposes of serving and explaining this Order. In order to 

carry out the terms of this Order other than the service and the explanation of this 

Order, if need be (a) the number of persons in the Investigation Team can be increased 

and (b) the Investigation Team may re-enter the Premises that day or the following 

days, up to three (3) successive days. For good cause shown, the Court may extend 

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the time period upon application of Plaintiff. In the event that it is necessary for the 

Investigation Teams to re-enter the Premises, two people, whether members of the 

Investigation Teams or private investigators or security guards may be present during 

the absence of the Investigation Teams on the Premises to ensure that no evidence is 

destroyed. 

12. Defendant, or any persons in charge of the Premises, shall give access 

and make available to the Investigation Teams upon entry to the Premises, any Avaya 

Products, Records and Equipment on the Premises, including access to all 

electronically-stored media. If Defendant refuses to allow access to electronicallystored media, Defendant must provide passwords or other requisite computer entry 

information. Defendant must provide full cooperation so as to permit the Investigation 

Teams to copy the Avaya-Related Records and Data. 

13. Defendant, or any persons in charge of the Premises, shall open and 

make available to the Investigation Teams any vehicle, container, storage area, and 

safety deposit box within their possession, custody or control and open any locked 

doors of the Premises or safety deposit boxes in or behind which the Investigation 

Teams have reasonable grounds to believe there may be any Avaya Products, 

Records, Equipment or Data. 

14. Defendant, and any persons in charge of the Premises, shall not alter, 

remove, transfer, destroy or conceal any Avaya Products, Avaya-Related Records, 

Equipment, or Avaya-Related Data. 

15. If Defendant, or any persons in charge of the Premises, refuses to comply 

with the terms of this Order, they may be found in contempt of Court which can result in 

fines or imprisonment. 

16. Defendant, or any persons in charge of the Premises, shall immediately 

deliver up to the Investigation Teams, all Items, Equipment, and Data within their 

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possession, custody or control that may include information relating to the creation, 

acquisition, reception, possession, marketing, sale, shipment, transfer or disposition of 

Imitation Avaya Products. 

Non-Disclosure of Order

17. Every person on whom this Order is served, or who has notice of the 

service of this Order, is prohibited, until a hearing is held as stated herein, from: 

(a) Disclosing to, or discussing with any other person, the existence of 

these proceedings or the Orders herein; and/or 

(b) Otherwise informing or warning any other person that the Plaintiff 

might execute this Order, or a similar order, against him or her. 

18. Notwithstanding Paragraph 17 above, any person on whom this Order is 

served and any person having notice of it may, at any time, consult a lawyer for the 

purpose of obtaining legal advice with respect to these proceedings. 

Custody and Use of Information Seized

19. Plaintiff’s counsel shall ensure that a paper or electronic list is made of all 

the paper items (indicating the number of pages in each item) and Avaya Products that 

are seized or delivered up and the Equipment copied pursuant to this Order (hereinafter 

the “List”), and shall serve a copy of that List on the Defendant. 

20. The United States Marshal for the Central District of California shall 

surrender the possession of the Defendant’s property found at the California Property to 

Plaintiff’s counsel Sherman & Howard or its designee (i.e. the substitute custodian for 

California Property). 

21. The United States Marshal for the Eastern District of New York shall 

surrender the possession of the Defendant’s property found at the NY Property to 

Plaintiff’s counsel Archer & Greiner, PC or its designee (i.e. the substitute custodian for 

NY Property). 

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22. Plaintiff shall defend the United States of America, the United States 

Marshal for the Central District of California and the Eastern District of New York, their 

agents, servants, employees, and all others for whom they are responsible, against all 

claims and actions arising out of said substitute custody and, further, shall indemnify 

and hold harmless the United States of America, the United States Marshal for the 

Central District of California and the Eastern District of New York, their agents, servants, 

employees and all others for whom they are responsible, for all attorneys’ fees, costs, 

expenses and disbursements incurred in defending against such claims or arising out of 

said substitute custody. 

23. As substitute custodian in California, Sherman & Howard shall ensure that 

any seized Inventory shall be delivered by counsel for Avaya and/or the U.S. Marshal 

(or other law enforcement officer) to a secure location at Extra Space Storage, 219 E. 

Alondra Blvd., Gardena, CA 90248, where the Seized Materials will remain, subject to 

access and removal as ordered by the Court. 

24. The seized Inventory shall be utilized solely for the purpose of civil 

proceedings and in relation to the enforcement of the Plaintiff’s rights or those of any 

legitimately interested third party with respect to Defendant’s activities. 

Posting of Security Bond

25. This Order is issued on the Plaintiff’s surety bond with Travelers Casualty 

and Surety Company of America in the amount of $150,000 to abide by an Order 

concerning damages that the Court may make if it ultimately appears that the granting 

of the Order has caused damage to the Defendant for which the Plaintiff ought to 

compensate the Defendant. Such surety bond shall be filed with the Clerk of the U.S. 

Court for the District of Colorado on or before September 13, 2011. 

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Protective Order

26. The Court further orders the following Protective Order under Federal Rule 

of Civil Procedure 26(c): 

A. This Protective Order shall require all persons to treat as 

confidential all Records, Equipment, and Data seized pursuant to this 

Order (hereinafter “Protected Material”). 

B. For purposes of this Order the only persons who shall have access 

to the Protected Material during the seizure are the Investigation Teams. 

C. Following the Seizure, the only persons who may access the 

Protected Material are: 

i. Outside litigation counsel for Avaya, including staff members; 

ii. One outside vendor in New York or New Jersey and one 

outside vendor in California to scan and digitally prepare such documents; 

iii. Any deponent, court reporter or attorney present at an 

expedited deposition conducted pursuant to paragraph 27 of this Order; 

and 

iv. Experts employed or retained by Avaya to inspect the 

counterfeit telephones. 

D. Persons identified in Paragraph 26(C)(ii),(iii), and (iv) must be 

shown a copy of this Order before accessing any Protected Material and 

are bound by the restrictions on the use of and access to Protected 

Material contained herein. 

E. Nothing in this Order shall prevent the use of Protected Material in 

expedited depositions conducted pursuant to paragraph 27 of this Order 

or in the hearing required by 15 U.S.C. § 1116(d)(10)(B). 

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F. This Protective Order shall be in effect until further order of the 

Court. 

Limited Expedited Discovery

27. The Court finds that good cause exists to grant Plaintiff’s request for 

expedited discovery, which is limited to Avaya’s right to conduct the deposition of 

Defendant and the person at Masa Trucking most knowledgeable about these matters 

within three (3) days of the execution of this Order (provided that Defendant is 

represented by counsel) and to serve written discovery requiring a response date within 

seven (7) days after personal service. 

28. During this expedited phase of discovery, Avaya is only entitled to one 

deposition of Defendant and one deposition of Masa Trucking and one set of request for 

admissions and one set of interrogatories to Defendant; however, the total number of 

written discovery shall not exceed twenty requests or interrogatories in the aggregate. 

Nothing in this Order shall be construed to limit Avaya’s ability to depose Defendant or 

Masa Trucking (or others) during the regular period of discovery should the need for 

additional discovery arise. 

29. The discovery responses, deposition transcript, and all seized materials 

used in connection with the expedited discovery shall be subject to the terms of the 

Protective Order set forth above. 

Expiration of Order and Hearing

30. The search and seizure authorized by this Order shall be concluded on or 

before 11:59 p.m. Pacific Time on September 16, 2011. 

31. As set forth above, a hearing shall be held on September 22, 2011 at 

3:30 p.m. in Courtroom A601 of the Alfred Arraj United States Courthouse in Denver 

Colorado. This hearing is at least ten days but no more than fifteen days from the date 

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of this Order, as required by 15 U.S.C. §1116 and Rule 65 of the Federal Rules of Civil 

Procedure. Defendant may request an earlier hearing for the purpose of having the 

Order as against them set aside or varied, or to determine whether the Plaintiff should 

be required to post additional security. 

IT IS SO ORDERED. 

Dated this 9th day of September, 2011. 

 BY THE COURT: 

 

____________________________________

William J. Martínez 

 United States District Judge 

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