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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

______________________________________ 

Emoji Company GmbH, 

Plaintiff, 

-againstThe Individuals, Corporations, Limited 

Liability Companies, Partnerships, and 

Unincorporated Associations Identified on

Schedule A Hereto, et al., 

Defendant.

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Case Number: 1:20−cv−04911

The Honorable John Robert Blakey

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT ALLEN VISION’S 

MOTION TO DISMISS OR, ALTERNATIVELY, TO MODIFY THE 

PRELIMINARY INJUNCTION ORDER

Defendant Allen Vision respectfully submits this memorandum of law in support of its 

motion to dismiss Plaintiff Emoji Company GmbH’s Complaint pursuant to Fed. R. Civ. P. 

12(b)(2), 12(b)(5) and 12(b)(6) or, alternatively, to modify the preliminary injunction order dated 

November 9, 2020 (the “PI Order”).

I. INTRODUCTION

 Defendant Allen Vision (“Allen Vision” or “the moving defendant”) submits this brief in 

support of its motion to dismiss or, alternatively, to modify the PI Order. First of all, because 

Allen Vision does not have minimum contacts with Illinois, this Court lacks personal jurisdiction 

over Allen Vision. In addition, the service of process on Allen Vision is insufficient. 

Furthermore, Plaintiff’s Complaint against Allen Vision fails to state a claim to relief that is 

plausible on its face. Therefore, the Court should dismiss Plaintiff’s Complaint pursuant to Fed. 

R. Civ. P. 12(b)(2), 12(b)(5) and 12(b)(6). Alternatively, if the Court determines dismissal is not 

warranted, the Court should modify the PI Order as stated below.

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II. PROCEDURAL HISTORY AND BACKGROUND FACTS

Plaintiff Emoji Company GmbH (“Emoji Company” or “Plaintiff”) is a Germany 

company. See Exhibit 1 to the Complaint (attached as Exhibit B to Tung Decl.). In this case, 

Emoji Company sued 274 defendants, all of which are sellers on Amazon.com or other similar 

E-Commerce platforms, for trademark infringement and counterfeiting (15 U.S.C. § 1114), false 

designation of origin (15 U.S.C. § 1125(a)), and trademark violation under Illinois State law (815 

ILCS § 510/1, et seq.). See Exhibit B to Tung Decl. 

The lawsuit is based on three federally registered trademarks, all of which are standard 

characters marks. Sample drawings of the marks on the trademark certificates (see Exhibit 1 to 

the Complaint) are shown below: 

U.S. Trademark Registration No. 4,868,832.

U.S. Trademark Registration No. 5,202,078

U.S. Trademark Registration No. 5,415,510

Allen Vision is one of the defendants. Allen Vision is an unincorporated business, having 

its principal place of business in Nantong City, China. See Li Decl. at ¶¶2, 6. Allen Vision sells 

backdrop products on the Amazon.com to customers all over the world. The backdrops are used 

by its customers for photographing or decoration purposes. Id. at ¶¶4-5. Allen Vision 

manufactures its backdrop products in China and ships them to Amazon’s warehouses. Once a 

customer orders backdrop products on the Amazon.com, the payment will be sent to Allen 

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Vision’s amazon account and Amazon.com will handle the shipment for Allen Vision and 

Amazon.com charges Allen Vision fees for its warehouse and shipment service. Id. at ¶7. 

Allen Vision is not registered to do business in Illinois. Allen Vision has no regular and 

established place of business in Illinois. Allen Vision does not maintain any offices, employees, 

or telephone listings in Illinois. Allen Vision has no manufacturing facility or distribution facility 

in Illinois. Allen Vision does not pay taxes or maintain any bank accounts in Illinois. Allen 

Vision does not participate in any business meetings, seminars, trade shows, or other marketing 

related activities in Illinois. Allen Vision does not have any employees who visit Illinois for 

business purposes, and Allen Vision does not send agents in Illinois to solicit business. Allen 

Vision does not own any real or personal property in Illinois. Id. at ¶¶8-15.

As to the complained product in the case, Allen Vision used the following design in one 

of its backdrop products: 

This design was developed by Allen Vision at its office in China. The products were not 

developed or manufactured in Illinois. All marketing and sales decisions related to the products 

were made at Allen Vision’s office in China. Id. at ¶¶20, 22. Allen Vision sold only 13 pieces of 

the backdrop products with such design to its U.S customers. None of the customers is located in 

Illinois. The total revenue generated from the sale of the complained products is about $278.86. 

Id. at ¶21. The design of the complained product does not contain any term similar or identical to 

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“emoji,” neither does Allen Vision’s products identification and description on Amazon.com 

contain the term of “emoji.” Id. at ¶23.

III. ARGUMENT

A. Plaintiff’s Complaint Should Be Dismissed Under Rule 12(b)(2) Because the Court 

Lacks Personal Jurisdiction Over Allen Vision

“[T]he mechanics for asserting personal jurisdiction in federal court are found in Federal 

Rule of Civil Procedure 4(k).” KM Enters., Inc. v. Glob. Traffic Techs., Inc., 725 F.3d 718, 723 

(7th Cir. 2013). In essence, “federal personal jurisdiction is proper whenever the person would 

be amenable to suit under the laws of the state in which the federal court sits (typically under a 

state long-arm statute), subject always to the constitutional due process limitations encapsulated 

in the familiar ‘minimum contacts’ test.” Id.

Thus, this district Court can exercise personal jurisdiction if it would be permitted to do 

so under the Illinois long-arm statute. See Fed. R. Civ. P. 4(k)(1)(A); uBID. Inc. v. GoDaddy 

Grp., Inc., 623 F.3d 421, 425 (7th Cir. 2010). There are two types of personal jurisdiction: 

general and specific. Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014). 

The plaintiff need not include facts alleging personal jurisdiction in the complaint, but 

“once the defendant moves to dismiss the complaint under Federal Rule of Civil Procedure 

12(b)(2) for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating the 

existence of jurisdiction.” Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 

782 (7th Cir. 2003).

Here, in this case, Plaintiff’s complaint fails on its face. It neither pleads nor references a 

single fact which could lead this Court to assert jurisdiction over Allen Vision.

Nor can Plaintiff replead at this point, unless it comes up with actual evidence of Illinois 

contacts. Once a Defendant has submitted a declaration, as it has done here, the Plaintiff must go 

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beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction. 

Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F3d 773, 783 (7th Cir. 2003).

As the Declaration of Xiang Li makes clear, Defendant, only sold 13 pieces of the 

complained backdrop products in the entire U.S. and none of them was sold to an Illinois 

resident. Li Decl. at ¶21. Indeed, Allen Vision does not have any connections with Illinois (not 

registered to do business, no office, no employees, and no manufacturer or distribution facility in 

Illinois). Id. at ¶¶8-19. Allen Vision does not maintain a separate website and all sales are 

conducted through Amazon.com. Id. at ¶5. Even considering the U.S. as a whole for the contact 

purpose, personal jurisdiction should not be found based only on the sales through an interactive 

website. Advanced Tactical Ordnance Sys. v. Real Action Paintball, Inc., 751 F.3d 796, 803 (7th 

Cir. 2014) (“Having an 'interactive website' (which hardly rules out anything in 2014) should not 

open a defendant up to personal jurisdiction in every spot on the planet where that interactive 

website is accessible. To hold otherwise would offend traditional notions of fair play and 

substantial justice.”). The complete lack of any contacts between Allen Vision and Illinois 

renders personal jurisdiction under any theory in this Court unsupportable.

Personal jurisdiction can be either “general” or “specific.” General jurisdiction is proper 

only “...in the limited number of fora in which the defendant can said to be ‘at home.’” Id. It’s 

not clear what Plaintiff’s theory is here, but it’s doubtful it would claim a China-based 

unincorporated business is “at home” in Illinois. Specific jurisdiction arises only for a suit arising 

out of “forum-related activity.” Id. It must be based on the contacts the Defendant makes with 

the forum state. For it to attach, Plaintiff must show that Defendant’s suit-related conduct creates 

a “substantial relationship with the forum State.” Id. at 801. Accordingly, just because Plaintiff’s 

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attorneys are located in this State 1, “does not suffice to authorize jurisdiction.” Id. Rather, 

jurisdiction “must arise out of contacts that the ‘defendant himself’ creates with the forum State. 

Id. at 802 (citations omitted). 

Nor should Plaintiff be permitted to impose further expense on Defendant through 

discovery. Although a court has discretion to permit discovery in certain jurisdiction disputes, 

“[a]t a minimum, the plaintiff must establish a colorable or prima facie showing of personal 

jurisdiction before discovery should be permitted.” Central States, Southeast and Southwest 

Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 946 (7th Cir. 2000). In short, 

a plaintiff shouldn’t be permitted to impose the time and expense of jurisdictional discovery on a 

defendant just because it filed a complaint with the court.

B. The Complaint Against Allen Vision Should Be Dismissed Under Rule 12(b)(5) 

Because The Service of Process Is Insufficient

The service of process is not sufficient in this case. Allen Vision has a physical address 

located in Nantong City, People’s Republic of China. Li Decl. at ¶6. China is a signatory to the 

Hague Convention referenced in Fed. R. Civ. P. Rule 4(f)(1). The Hague Convention requires 

signatory countries to establish a Central Authority to receive requests for service of documents 

from other countries and to serve those documents by methods compatible with the internal laws 

of the receiving state. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698–99 

(1988). Service through a country’s Central Authority is the principal means of service under the 

Hague Convention. Here, Allen Vision received the notice of the lawsuit through email, which is 

not an appropriate way to deliver the service of process on a Chinese resident. See Luxottica Grp. 

S.p.A. v. P'ships & Unincorporated Ass'n Identified on Schedule "A", 391 F. Supp. 3d 816, 827 

1 According to the emoji trademark registrations, attached to Plaintiff’s Complaint as Exhibit 1, Plaintiff is a 

Germany company, not an Illinois company.

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(N.D. Ill. 2019) (holding that service via email on residents of China was deemed insufficient 

due to China’s objections to Article 10 of Hague Convention service through postal channels).

C. The Complaint Against Allen Vision Should be Dismissed Under Rule 12(b)(6)

Because Plaintiff’s Complaint Against Allen Vision Fails to State a Claim to Relief 

that is Plausible on its Face

A Rule 12(b)(6) motion to dismiss challenges the sufficiency of a complaint. Bonnstetter 

v. City of Chicago, 811 F.3d 969, 973 (7th Cir. 2016). A complaint must contain enough 

information, in the form of “a short and plain statement of the claim,” to give the defendant “fair 

notice” of the claim and its basis. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

Notice alone, however, is insufficient to survive a motion to dismiss; a complaint must 

also contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 

on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); 

Adams v. City of Indianapolis, 742 F.3d 720, 728-29 (7th Cir. 2014). Indeed, “the Supreme 

Court’s decisions in Twombly and Iqbal ushered in a requirement that civil pleadings 

demonstrate some merit or plausibility in complaint allegations to protect defendants from 

having to undergo costly discovery unless a substantial case is brought against them.” United 

States v. Vaughn, 722 F.3d 918, 926 (7th Cir. 2013).

A claim has facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 

Iqbal, 556 U.S. at 678. In determining the plausibility of a claim, a court must accept as true all 

of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the 

plaintiff. Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016). However, a court does 

not consider “legal conclusions and conclusory allegations merely reciting the elements of the 

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claim,” as they “are not entitled to the presumption of truth.” McCauley v. City of Chicago, 671 

F.3d 611, 616 (7th Cir. 2011). The plausibility standard is not akin to a probability requirement, 

but it asks for more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. 

at 678. The Seventh Circuit has interpreted the “plausibility” standard as requiring “a 

nonnegligible probability that the claim is valid. In re Text Messaging Antitrust Litig., 630 F.3d 

622, 629 (7th Cir. 2010).

To prevail on either Plaintiff’s trademark claim or unfair competition claim, Plaintiff 

must demonstrate that Defendant’s use of a protectable mark “is likely to cause confusion among 

consumers.” Phoenix Entm’t, 829 F.3d at 822; Packman v. Chi. Tribune Co., 267 F.3d 628, 638 

(7th Cir. 2001). At this stage, Plaintiff must plead allegations that make it plausible that such 

likelihood of confusion exists. See Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 763 F.3d 

696, 700 (7th Cir. 2014) (“Allegations of consumer confusion in a trademark suit, just like any 

other allegations in any other suit, cannot save a claim if they are implausible”); Top Tobacco v. 

Fantasia Distribution Inc., 101 F. Supp. 3d 783, 790 (N.D. III. 2015).

In determining whether the use of the mark is likely to cause confusion among consumers 

a court considers the following seven factors: “(1) similarity between the marks in appearance 

and suggestion; (2) similarity of the products; (3) the area and manner of concurrent use; (4) the 

degree of care likely to be exercised by consumers; (5) the strength of the plaintiff’s mark; (6) 

whether actual confusion exists, and (7) whether the defendant intended to ‘palm off’ his product 

as that of the plaintiff.” CAE, Inc. v. Clean Air Engineering, Inc., 267 F.3d 660, 673-74 (7th Cir. 

2001). No one factor is dispositive and the court balances the seven factors. Id.; Packman, 267 

F.3d at 643. However, the similarity of the marks factor, the actual confusion factor, and the 

intent factor are particularly important. CAE, Inc., 267 F.3d at 678; Packman, 267 F.3d at 643.

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1. Similarity Between Marks

With respect to the marks’ similarity, the test is “whether the viewer of an accused mark 

would be likely to associate the product or service with which it is connected with the source of 

products or services with which an earlier mark is connected.” Sorensen v. WD-40 Co., 792 F.3d 

712, 726 (7th Cir. 2015).

In the instant action, Plaintiff failed to include images of Plaintiff’s marks and the 

moving defendant’s marks in the complaint. As shown above, Plaintiff’s marks alleged in the 

complaint and the moving defendant’s marks are not similar. Plaintiff’s marks word “EMOJI,” 

but the moving defendant sold its backdrop products under the mark “Allenjoy.” See Exhibit A

to Tung Decl. The differences in the letter formation, letter type, color, and background of the 

parties’ marks are significant. A jury viewing these marks could not plausibly find that the marks 

are similar and not likely to make a consumer associate the product offered for sale by the 

moving defendant with the source of the Plaintiff’s marks. Neither do the smiling design patterns 

on the complained backdrop products have any similarity with the standard character marks

“EMOJI” because one is in the form of patterns and the other is a five-letter work mark. See Li 

Decl. at ¶¶22-23. And the design patterns were not used as trademarks in the backdrop and they 

were simply part of the design. Therefore, this factor weighed in favor of the moving defendant.

2. Similarity Between Products or Services

In assessing the similarity between the parties’ products or services factor, the proper 

inquiry is “whether the public is likely to attribute the products and services to a single source.” 

CAE, Inc., 267 F.3d at 679.

In the case at bar, Plaintiff failed to allege in the complaint that Plaintiff’s products or 

services and the moving defendant’s products or services are similar. Plaintiff’s complaint even 

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failed to state what products or services Plaintiff manufactures, advertises or sells. The complaint 

also failed to allege what products or services the moving defendant offered for sale. The 

backdrops developed by the moving defendant could be the only product presumably complained 

of by Plaintiff. In the complaint, Plaintiff failed to allege Plaintiff has the similar backdrop 

products, while the moving defendant sold the backdrop products with the product name of 

“Allenjoy Birthday Backdrop.” See Exhibit A to Tung Decl. As such, the public is not likely to 

attribute the moving defendant’s backdrop products and Plaintiff’s products, if any, to a single 

source and this factor therefore weighed in the moving defendant’s favor.

3. Area and Manner of Concurrent Use

With respect to the area and manner of concurrent use, the Court asks “whether there is a 

relationship in use, promotion, distribution, or sales between the goods or services of the parties.” 

KJ Korea, Inc. v. Health Korea, Inc., 66 F. Supp. 3d 1005 (N.D. III. 2014). To answer this 

question, the Court considers the “relative geographical distribution areas, evidence of direct 

competition between the products, whether products are sold to consumers in the same type of 

store or similar section of a particular store, and whether the product is sold through the same 

marketing channels.” Top Tobacco, 101 F. Supp. 3d at 790.

Here, Plaintiff’s complaint failed to identify which products of the moving defendant are 

infringing products. As stated above, the backdrops developed by the moving defendant could be 

the only product presumably complained of by Plaintiff. Nothing in the complaint alleged that a 

relationship in use, promotion, distribution, or sales between the goods or services of Plaintiff 

and the moving defendant exists. The moving defendant sold its backdrop products through 

Amazon’s E-Commerce platform, but Plaintiff failed to allege that Plaintiff sold any backdrop 

products in Amazon. Nothing in the complaint alleged that Plaintiff’s products have concurrent 

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relative geographical distribution area with the moving defendant’s products. Plaintiff failed to 

provide any evidence of direct competition between Plaintiff’s products and the moving 

defendant’s products. In the complaint, Plaintiff alleged that Defendants sold products through 

their Internet stores, but Plaintiff failed to allege that Plaintiff sold its products in the same type 

of store or similar section of a particular store. Plaintiff also failed to plead in sufficient content 

that Plaintiff promotes, distributes or sells any backdrop products in any type of store or any 

section of a particular store, or sells through any marketing channels. As such, this factor shall be 

in the moving defendant’s favor.

4. Degree of Care By Consumers

In determining the degree of care likely to be exercised by consumers the Court must 

consider the potential consumers of both parties. CAE, Inc., 267 F.3d at 682.

In the case at bar, Plaintiff’s complaint failed to address this factor at all. The Court 

should therefore find that this factor does not support a likelihood of confusion finding.

5. Strength of Mark

For the strength of the plaintiff’s mark, “courts examine the distinctiveness of the mark, 

or more precisely, its tendency to identify the goods sold under the mark as emanating from a 

particular source.” KJ Korea, 66 F. Supp. 3d at 1016.

When the plaintiff uses a mark which is an unpronounceable group of letters some factors 

that the Seventh Circuit considers in determining the strength of the mark include: 1) how long 

the mark was used, 2) the amount of sales of products or services connected to the mark, 3) the 

amount of money spent on advertising the mark, 4) the use or non-use of the letter combination 

by the plaintiff’s subsidiaries or divisions, and 5) the registration by the plaintiff of other 

trademarks that contain the letter grouping. CAE, Inc., 267 F.3d at 685.

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In the instant action, Plaintiff failed to allege at least four of the above-mentioned five 

factors the Seventh Circuit considers in determining the strength of the mark. First of all, 

Plaintiff’s complaint failed to plead in sufficient manner how long Plaintiff’s marks were used. 

Secondly, Plaintiff’s complaint failed to plead any factual allegations regarding the amount of 

sales of products or services connected to Plaintiff’s marks. Thirdly, in the complaint, Plaintiff 

failed to plead in sufficient how much Plaintiff spent on advertising its marks. Fourthly, 

Plaintiff’s complaint failed to plead any factual allegations regarding the use or non-use of the 

letter combination by Plaintiff’s subsidiaries or divisions.

Failure to plead sufficiently with respect to the strength of Plaintiff’s marks does not 

plausibly give rise to the inference that the fifth factor weighs in favor of likelihood of confusion. 

As such, this strength of mark factor shall be in favor of the moving defendant.

6. Actual Confusion

Evidence of actual confusion is entitled to substantial weight in the likelihood of 

confusion analysis. CAE, Inc., 267 F.3d at 686. The Seventh Circuit has found in some cases that 

a showing of only a few instances of actual confusion is de minimis and is insufficient to tilt the 

actual confusion factor in favor of the Plaintiff. Packman, 267 F.3d at 645.

In the case at bar, Plaintiff’s complaint failed to plead any facts from which the Court can 

reasonably infer actual confusion. Plaintiff failed to provide any evidence of actual confusion in 

the complaint. As demonstrated above, Plaintiff’s marks and the moving defendant’s marks are 

substantially different. The moving defendant sold its backdrop products through Amazon with 

the product name of “Allenjoy Birthday Backdrop,” while Plaintiff failed to allege Plaintiff sold 

any similar backdrop products in Amazon. Assuming arguendo Plaintiff did sold its backdrop 

products with the mark name of “EMOJI” even though Plaintiff has failed to allege, it would not 

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cause actual confusion to the general public as it is easy to distinguish the moving defendant’s 

backdrop products from Plaintiff’s backdrop products if any, especially with the parties’ name in 

the order of products. Since Plaintiff failed to allege any factual evidence of actual confusion, 

this factor shall be in the moving defendant’s favor.

7. Intent to Confuse Consumers

This factor primarily looks to whether “the defendants are attempting to ‘pass off’ their 

products as having come from the plaintiff.” Packman, 267 F.3d at 644.

Regarding this factor, Plaintiff alleged in its complaint that Defendants have knowledge 

of Plaintiff’s rights in its Trademarks and are willfully infringing and intentionally using 

Plaintiff’s Trademarks on counterfeit products. Defendants’ willful, intentional, and 

unauthorized use of Plaintiff’s Trademarks are likely to cause and are causing confusion, mistake, 

and deception as to the origin and quality of the counterfeit products among the general public. 

Complaint at ¶ 28. These allegations address the moving defendant’s intent, but they “do not 

weigh particularly heavily in favor of or against likelihood of confusion” because they are 

conclusory and not supported by factual allegations from which the Court can reasonably infer 

the alleged intent and knowledge. See Top Tobacco, 101 F. Supp. 3d at 791 (addressing 

unsupported allegations that the defendant was intentionally using its mark “to profit off of the 

goodwill and consumer recognition of” the plaintiff’s trademark and “deliberately and willfully 

used its mark ... to pass its tobacco product off as those of” the plaintiff). In addition, as stated 

above, Plaintiff has not alleged in its complaint that Plaintiff sold any backdrop products in the 

market, and the moving defendant has thus no intent to confuse consumers. Furthermore, the 

evidence of using the product name of “Allenjoy Birthday Backdrop” in the sale of its backdrop 

products by the moving defendant also supports the contention that the moving defendant has no 

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intent to confuse consumers. For the foregoing reasons, this intent to confuse consumers factor 

shall be in favor of the moving defendant.

In sum, Plaintiff has not alleged sufficient facts pertaining to any of the seven likelihood 

of confusion factors. By doing so, Plaintiff has not raised the possibility of likelihood of 

confusion “above a speculative level,” Horist v. Sudler & Co., 941 F.3d 274, 278 (7th Cir. 2019), 

especially given the fact-intensive nature of weighing the different factors depending on the facts 

of the case, see Packman, 267 F.3d at 643; Top Tobacco, 101 F. Supp. 3d at 790. Courts from 

this District have similarly found that complaints that plead sufficient facts pertaining to four of 

the seven factors adequately allege likelihood of confusion. See, e.g., Mon Aimee Chocolat, 2015 

U.S. Dist. LEXIS 143549, 2015 WL 6407758, at *5-6 (finding likelihood of confusion 

adequately pleaded where the complaint alleged sufficient facts pertaining to the first, second, 

third, and fifth factors); Top Tobacco, 101 F. Supp. 3d at 789, 792 (same). Since Plaintiff has not 

alleged sufficient facts pertaining to any of the above seven factors with respect to the likelihood 

of confusion, the Court therefore should grant the moving defendant’s motion to dismiss based 

on the unlikelihood of confusion argument.

D. In The Event Plaintiff’s Complaint Against Allen Vision Is Not Dismissed, The 

Preliminary Injunction Order Should Be Modified

On Nov. 9, 2020, this Court issued the PI Order against all defendants. See Exhibit C to 

Tung Decl. In the PI Order, among other things, the Court directed Amazon to locate all 

accounts connected to Defendants and to “[r]estrain and enjoin any such accounts or funds that 

are China or Hong Kong-based from transferring or disposing of any money or other of 

Defendants’ assets until further ordered by this Court.” PI Order at ¶7. This Court also orders 

that service of process on Defendants may be accomplished through email including a link to the 

website where the documents are located pursuant to Fed. R. Civ. P. 4(f)(3). See PI Order at ¶8.

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To evaluate a preliminary injunction, one of the factors the Court will consider is the 

irreparable harm the nonmoving party will suffer should not outweigh the irreparable harm the 

moving party will suffer without preliminary injunctive relief. See Rust Environment & 

Infrastructure, Inc. v. Teunissen, 131 F.3d 1210, 1213 (7th Cir. 1997).

In this case, the total revenue generated from the sale of the complained products in the 

United States is about $278.86. See Li Decl. at ¶21. To freeze Allen Vision’s entire amazon 

account for the $278.86 sale is disproportional to the alleged irreparable harm Plaintiff will 

suffer. Allen Vision’s whole business will quickly dismantle if the sale proceeds stops flowing 

back from its Amazon account while the case is pending. Id. at ¶24. The injunction against any 

alleged further infringement (PI Order at ¶1) should be sufficient to protect Plaintiff’s interests. 

If the funds in the Amazon account has to be frozen, Allen Vision requests the Court set a limit 

on the amount (for example, $2,000) considering the scale of the complained sale.

The service of process section in the PI Order also requires modification. See PI Order at 

¶8. The authority to order alternative service comes from Rule 4(f)(3). The rule permits service 

“by other means not prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 

4(f)(3). To decide whether ¶ 8 of the PI Order was proper, the Court must therefore ask whether 

the Hague Service Convention prohibits service by email or posting on a web page.

This District Court has held that service via email on residents of China was deemed 

insufficient due to China’s objections to Article 10 of Hague Convention service through postal 

channels. Luxottica Grp. S.p.A. v. P'ships & Unincorporated Ass'n Identified on Schedule "A", 

391 F. Supp. 3d 816, 827 (N.D. Ill. 2019). Therefore, service of process through email is 

inappropriate and the PI Order should be modified accordingly.

/s/ Kevin K. Tung, attorney for Allen Vision

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