IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ABC CORPORATION I,

ABC CORPORATION II,

Plaintiffs,

v. 

THE PARTNERSHIPS AND 

UNINCORPORATED ASSOCIATIONS 

IDENTIFIED ON SCHEDULE A,

Defendants.

Case No. 1:20-cv-4806

Judge Thomas M. Durkin

Magistrate Judge Jeffrey Cole

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ 

MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER AND

PRELIMINARY INJUNCTION

TARTER KRINSKY & DROGIN LLP

Richard J.L. Lomuscio (admitted pro hac vice)

Mark Berkowitz (admitted pro hac vice)

1350 Broadway

New York, NY 10018

(212) 216-8000

PALMERSHEIM & MATHEW LLP

Robert J. Palmersheim

Anand C. Mathew

Timothy G. Parilla

401 N. Franklin Street, Suite 4S

Chicago, IL 60654

(312) 319-1791

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1

BACKGROUND ............................................................................................................................ 3

LEGAL STANDARDS .................................................................................................................. 4

ARGUMENT.................................................................................................................................. 5

I. PLAINTIFFS SATISFY THE GROUNDS FOR ENTRY OF 

THE NEW TRO AND NEW PI. .............................................................................................. 5

A. Plaintiffs Will Likely Succeed on the Merits of

Their Patent Infringement Claim. ...................................................................................... 6

1. The Patents-in-Suit and Cited Prior Art ........................................................................ 7

2. An Ordinary Observer Would Find the Overall Impression of the 

Accused Products to be Substantially Similar to the Patents-in-Suit. ........................ 13

a. The Accused Product “Gyroor A” Infringes on the Patents-in-Suit. ..................... 13

i. The Accused Product “Gyroor A” Is Substantially Similar to

the D’723 Patent............................................................................................... 14

ii. The Accused Product “Gyroor A” Is Substantially Similar to

the D’256 Patent............................................................................................... 16

b. The Accused Product “Gyroor C” Infringes on the Patents-in-Suit. ..................... 18

i. The Accused Product “Gyroor C” Is Substantially Similar to 

the D’723 Patent............................................................................................... 18

ii. The Accused Product “Gyroor C” Is Substantially Similar to 

the D’256 Patent............................................................................................... 21

c. The Accused Product “Gyroor E” Infringes on the Patents-in-Suit....................... 23

i. The Accused Product “Gyroor E” Is Substantially Similar to 

the D’723 Patent............................................................................................... 23

ii. The Accused Product “Gyroor E” Is Substantially Similar to 

the D’256 Patent............................................................................................... 25

B. Plaintiffs Demonstrate the Remaining Requirements for Entry of the 

New TRO and New PI. ..................................................................................................... 27

1. Plaintiffs Have No Adequate Remedy at Law to Compensate for Defendants’ 

Infringement and Will Continue to Suffer Irreparable Harm Absent the 

New TRO and New PI. ............................................................................................... 27

2. The Balance of the Parties’ and the Public’s Interest Favor Entry of the 

New TRO and New PI. ............................................................................................... 29

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II. THE EQUITABLE RELIEF SOUGHT IS APPROPRIATE ................................................. 30

III. ALL RELEVANT PARTIES ARE SUFFICIENTLY ON NOTICE OF THIS MOTION. ... 31

CONCLUSION............................................................................................................................. 32

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TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Labs v. Mead Johnson & Co.,

971 F.2d 6 (7th Cir. 1992) .......................................................................................................29

ABC Corporation I v. Partnership and Unincorporated Associations,

No. 21-2150 (Fed. Cir. Oct. 28, 2022).......................................................................................1

ABC Corporation I v. Partnership and Unincorporated Associations,

No. 22-1071 (Fed. Cir. Oct. 28, 2022).......................................................................................1

Apple Inc. v. Samsung Elecs. Co.,

735 F.3d 1352 (Fed. Cir. 2013)..........................................................................................28, 30

Apple, Inc. v. Samsung Elecs. Co.,

No. 11-CV011846-LHK, 

2012 WL 3071477 (N.D. Cal. July 27, 2012)............................................................................9

Bell & Howell Doc. Mgmt. Prods. Co. v. Altek Sys.,

132 F.3d 701 (Fed. Cir. 1997)..................................................................................................27

Celsis in Vitro, Inc. v. CellzDirect, Inc.,

664 F.3d 922 (Fed. Cir. 2012)..................................................................................4, 27, 28, 29

Contessa Food Prods., Inc. v. Conagra, Inc.,

282 F.3d 1370 (Fed. Cir. 2002)..................................................................................................9

Crocs, Inc. v. Int’l Trade Comm’n,

598 F.3d 1294 (Fed. Cir. 2010)..............................................................................................4, 7

Deckers Outdoor Corp. v. Partnerships & Unincorporated Associations,

No. 13 C 2167, 

2013 WL 1337616 (N.D. Ill. Mar. 27, 2013)...........................................................................31

Egyptian Goddess, Inc. v. Swisa, Inc.,

543 F.3d 665 (Fed. Cir. 2008)......................................................................................4, 5, 7, 13

Ethicon Endo-Surgery, Inc. v. Covidien, Inc.,

796 F.3d. 1312 (Fed. Cir. 2015).................................................................................................6

Gateway E. Railway Co. v. Terminal Railroad Assoc. of St. Louis,

35 F.3d 1134 (7th Cir. 1994) ...................................................................................................28

Gorham Co. v. White,

81 U.S. 511 (1871).....................................................................................................................5

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v

Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Trust Drivers

No. 70 of Alameda County,

415 U.S. 423 (1974).................................................................................................................31

Illinois ex rel. Hartigan v. Peters,

871 F.2d 1336 (7th Cir. 1989) .................................................................................................31

Int’l Seaway Trading Corp. v. Walgreens Corp.,

589 F.3d 1233 (Fed. Cir. 2009)..................................................................................................7

Lanard Toys Ltd. v. Dolgencorp LLC,

958 F.3d 1337 (Fed. Cir. 2020)..................................................................................................4

Long v. Bd. Of Educ., Dist. 128,

167 F. Supp. 2d 988 (N.D. Ill. 2001).........................................................................................4

Lorillard Tobacco Co. v. Montrose Wholesale Candies & Sundries, Inc.,

No. 03-cv-4844, 

2005 WL 3115892 (N.D. Ill. Nov. 8, 2005) ............................................................................31

Promatek Indus. Ltd. v. Equitrac Corp.,

300 F.3d 808 (7th Cir. 2002) ...................................................................................................28

Robert Bosch, LLC v. Pylon Mfg. Corp.,

659 F.3d 1142 (Fed. Cir. 2011)................................................................................................28

Ty, Inc. v. The Jones Group, Inc.,

237 F.3d. 891 (7th Cir. 2001) ........................................................................................4, 27, 29

Statutes and Rules

35 U.S.C. § 283..............................................................................................................................30

Fed. R. Civ. P. 65.....................................................................................................................31, 32

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Plaintiffs Hangzhou Chic Intelligent Technology Co. (“Chic”) and Unicorn Global, Inc. 

(“Unicorn”) (collectively, “Plaintiffs”) submit this Memorandum of Law in support of their 

Motion for Entry of a Temporary Restraining Order (“New TRO”) and Preliminary Injunction (the 

“New PI”) against Defendants Gyroor, Gyroor-US, Urbanmax, Fengchi-US, HGSM, GaodeshangUS, Jiangyou-US, and Gyroshoes (collectively, “Defendants”).

PRELIMINARY STATEMENT

While the Federal Circuit recently vacated injunctions previously entered by this Court 

precluding Defendants from selling “Gyroor A” (i.e., Gyroor T581 series and variants), “Gyroor 

C” (i.e., Gyroor T580 series and variants), and “Gyroor E” (i.e., Gyroor G11 series and variants)

products (collectively, “the Accused Products”) because they infringe upon, at least, Plaintiffs’ 

U.S. Design Patent Nos. D737,723 (“the D’723 Patent”) and D738,256 (“the D’256 Patent”)

(collectively, “the Patents-in-Suit”) (see Dkt. 42, 50 (collectively, the “Prior TRO”); Dkt. 113, 456

(collectively, the “Prior PIs”)),

1

the appellate court did so on technical grounds—arguably 

insufficient detail demonstrating likelihood of success on the merits and defects in service as to 

one party—that are readily curable. Nothing in the Federal Circuit’s ruling authorizes Defendants’ 

infringement of the Patents-in-Suit or otherwise undercuts the evidence supporting continued 

injunctive relief. Accordingly, Plaintiffs respectfully request entry of a New TRO and the New PI

to curtail Defendants’ ongoing willful infringement.

1 Defendants Urbanbax, GaodeshangUS, Fengchi-US, and Gyroor-US appealed this Court’s entry 

of this Court’s entry of the November 24, 2020 PI (Dkt. 113) to the United States Court of Appeals 

for the Federal Circuit, which found the PI lacked required notice to Defendants and vacated the 

PI. See ABC Corporation I v. Partnership and Unincorporated Associations, No. 21-2150 (Fed. 

Cir. Oct. 28, 2022) (“Federal Circuit Decision I”). Defendants Urbanmax, GaodeshangUS, 

Fengchi-US, Gyoor, Jiangyou-US, Gyroshoes, and HGSM appealed this Court’s entry of the 

October 13, 2021 PI (Dkt. 456) to the Federal Circuit, which held that this Court failed to find 

Plaintiffs were likely to succeed on the merits and reversed and remanded the case. See ABC 

Corporation I v. Partnership and Unincorporated Associations, No. 22-1071 (Fed. Cir. Oct. 28, 

2022) (the “Federal Circuit Decision II”). 

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Plaintiffs Are Likely to Succeed on the Merits. Defendants, in spite of their appeals, still 

fail to raise a viable defense to Plaintiffs’ prima facie case of design patent infringement as 

demonstrated by the Prior PIs as well as the supplemental evidence submitted in connection with 

the New TRO and New PI. Not only are each of the Accused Products not sufficiently distinct or 

plainly dissimilar from either of the Patents-in-Suit, but in the eyes of the hypothetical ordinary 

observer familiar with the prior art, the overall visual appearance of the Accused Products is also 

substantially similar to that of the claimed designs of the Patents-in-Suit.

Equitable Relief Is Appropriate. Plaintiffs have repeatedly shown Defendants’ sales of the 

Accused Products have cost Plaintiffs their control of their patent rights, share of the market, and 

reputation and goodwill with customers such that monetary damages would not sufficiently 

compensate them for the irreparable harm caused. By contrast, Defendants’ own willful 

infringement is the source of any harm that results from issuing a preliminary injunction.

Defendants’ repeated violative conduct fully justifies providing Plaintiffs with equitable relief in 

this case and maintenance of the status quo.

The Balance of Harms Favors Plaintiffs. The balance of harms tips decidedly in Plaintiffs’ 

favor—any harm to Defendants caused by a New TRO and New PI is self-inflicted and 

insignificant in comparison to the irreparable harm that would be suffered by Plaintiffs. Plaintiffs’ 

loss of control of patent rights, diminished market share, and injury to reputation and goodwill far 

outweighs Defendants’ mere loss of sales of the Accused Products.

Public Interest Favors The Enforcement of Patent Rights. The public interest favors the 

grant of a New TRO and New PI as preventing Defendants and other third-party infringers from 

continuing to profit from their unlawful activities would undoubtedly have a positive impact on 

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the public interest. No critical public interest would be injured by enjoining Defendants from 

selling the Accused Products during the pendency of this proceeding. 

All Defendants Have Sufficient Notice. There can be no question that all Defendants have 

adequate notice of the injunctive relief being sought by the New TRO and the New PI. All 

Defendants have appeared in this action and are represented by counsel who undisputedly receive 

notifications of filings with this Court. 

This Court should therefore issue a New TRO and New PI enjoining the Defendants from 

the sale of the Accused Products and restraining the transfer of assets associated with such sales, 

thereby ensuring no continuing or further harm is done to Plaintiffs during the pendency of this 

litigation.

BACKGROUND

Plaintiff Chic is the lawful owner of the Patents-in-Suit, which it utilizes when designing, 

manufacturing and selling its hoverboard products. (See Dkt. 101 ¶ 7, 14.) Plaintiff Unicorn is the 

exclusive distributor of Chic’s hoverboard products in the United States. (See Dkt. 101 ¶ 8.)

Defendants are individuals and business entities that operate online e-commerce stores that make 

and sell unauthorized hoverboard products—the Accused Products—that infringe upon the 

Patents-in-Suit. (See Dkt. 101 ¶ 2.) More specifically, the Defendants are, in large part, entities 

created to evade this Court’s Prior PIs.

This Court entered the Prior TRO against Defendants on September 22, 2020, and then 

extended it until October 20, 2020, enjoining Defendants from further sale of the Accused 

Products. (Dkt. 42, 50.) Plaintiffs’ motions for the Prior PIs were subsequently granted, first on 

November 24, 2020, and again on October 13, 2021. (Dkt. 113, 456.) Select Defendants appealed 

the Prior PIs to the Federal Circuit. On October 28, 2022, the Federal Circuit, in two separate 

opinions, vacated the Prior PIs and remanded to this Court for further proceedings. (Federal Circuit 

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Decision I at 18; Federal Circuit Decision II at 21.) Nothing in the Federal Circuit opinions 

precludes Plaintiffs from renewing their requests for injunctive relief as to the Accused Products.

LEGAL STANDARDS

Issue of a TRO and PI. The standards for issuing a New TRO and New PI are identical—

the moving party must demonstrate three requisite elements: (1) a likelihood of success on the 

merits; (2) that no adequate remedy at law exists; and (3) that they will suffer irreparable harm if 

the injunction is denied. See Long v. Bd. Of Educ., Dist. 128, 167 F. Supp. 2d 988, 990 (N.D. Ill. 

2001) (citing Ty, Inc. v. The Jones Group, Inc., 237 F.3d. 891, 895 (7th Cir. 2001)); see also Celsis 

in Vitro, Inc. v. CellzDirect, Inc. ̧ 664 F.3d 922, 926 (Fed. Cir. 2012). Upon Plaintiffs’ satisfaction 

of these conditions, this Court may also consider the harm that the nonmoving party will suffer if 

preliminary relief is granted, balancing such harm against the irreparable harm the moving party 

will suffer if relief is denied.. Ty, Inc., 237 F.3d. at 895. Finally, the Court must consider the 

potential effect on the public interest in denying or granting the injunction. Id. 

Design Patent Infringement. “Determining whether a design patent has been infringed is a 

two-part test: (1) the court first construes the claim to determine its meaning and scope; (2) the 

fact finder then compares the properly construed claim to the accused design.” Lanard Toys Ltd. 

v. Dolgencorp LLC, 958 F.3d 1337, 1341 (Fed. Cir. 2020). Typically, design patents are claimed 

as shown in drawings as the illustrations, themselves, are their own best description. See Egyptian 

Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008); Crocs, Inc. v. Int’l Trade Comm’n, 

598 F.3d 1294, 1303 (Fed. Cir. 2010) (citing Manual of Patent Examining Procedure § 1503.01 

(8th ed. 2006)). This case is no different—the proper construction of the Patents-in-Suit must 

clearly take the overall ornamental design into consideration and simply refer the factfinder to the

illustrations in the figures of the Patents-in-Suit.

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An accused design infringes a design patent if “an ordinary observer, taking into account 

the prior art, would believe the accused design to be the same as the patented design.” Egyptian 

Goddess, 543 F.3d at 670, 682; see also Gorham Co. v. White, 81 U.S. 511, 528 (1871) (“If, in the 

eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are 

substantially the same, if the resemblance is such as to deceive such an observer, inducing him to 

purchase one supposing it to be the other, the first one patented is infringed by the other.”). Here, 

the “ordinary observer” is “the principal purchaser of hoverboards, i.e., a consumer user or the 

parent of a user, each having little or no experience purchasing hoverboards” who encounters such 

products via online stores, television, and social media, and purchases them through online or brick 

and mortar stores. (Hatch Decl. ¶ 40.)

ARGUMENT

The Patents-in-Suit and the Accused Products are so substantially similar to that of an 

ordinary observer would be deceived into purchasing one supposing it to be the other. This 

confusion warrants continued injunctive relief to prevent further harm to Plaintiffs through 

Defendants’ sale of the Accused Products. Given the extended and ongoing nature of this dispute, 

Defendants are fully aware of their products’ infringing designs and cannot claim surprise as to 

the restraints sought by Plaintiffs through this motion. The Court should therefore issue the New 

TRO and grant the request for the New PI. 

I. PLAINTIFFS SATISFY THE GROUNDS FOR ENTRY OF THE NEW TRO AND 

NEW PI.

The record here demonstrates that Plaintiffs meet all the requirements for injunctive relief. 

First, Plaintiffs are likely to succeed on the merits given the obvious similarities between the 

Patents-in-Suit and the Accused Products. The Accused Products are simply knockoffs of 

Plaintiffs’ designs. Second, there is no adequate remedy at law given the reputational and other 

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nonmonetary harms suffered by Plaintiffs as a result of Defendants’ improper conduct. Third, 

Plaintiffs will be irreparably harmed if an injunction is not granted because Defendants will be 

able to sell the infringing Accused Products without restriction detrimentally—and perhaps 

irrevocably—diminishing Plaintiffs’ market share. Finally, the balancing of the harms greatly 

weighs in favor of Plaintiffs given the intangible harms it will suffer from untethered sales of the 

infringing Accused Products while any potential injury to Defendants is secured by the bond that 

is already in place for this case. (Receipt No. 4624246936, entered October 2, 2020; Receipt No. 

4624261079, entered August 26, 2021.)

A. Plaintiffs Will Likely Succeed on the Merits of Their Patent Infringement

Claim.

The extraordinary similarity between the Patents-in-Suit and the Accused Products is not 

coincidence. Gyroor and its affiliates, seeking to ride Plaintiffs’ coattails, appropriated Plaintiffs’ 

designs as their own. Therefore, Plaintiffs are likely to succeed on the merits of their patent 

infringement claims.

2

In determining whether the Accused Products infringe the claimed designs 

of the Patents-in-Suit, the Court must first determine whether the claimed infringing designs are 

“sufficiently distinct” or “plainly dissimilar” from the Patents-in-Suit. Ethicon Endo-Surgery, Inc. 

v. Covidien, Inc., 796 F.3d. 1312, 1335 (Fed. Cir. 2015). If the Court finds the claims are not 

plainly dissimilar, then it must compare the “claimed and accused designs with prior art to identify 

differences that are not noticeable in the abstract but would be significant to the hypothetical 

ordinary observer familiar with the prior art.” Id. Where there is dissimilarity between the Patents2 Plaintiffs submit, herewith, the Expert Declaration of Paul Hatch in support of their motion for 

entry of a TRO and PI (“Hatch Decl.”). 

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in-Suit and the prior art, the Accused Products are “more likely to be regarded as deceptively 

similar to the claimed design, and thus infringing.” Egyptian Goddess, 543 F.3d at 677.3

1. The Patents-in-Suit and Cited Prior Art

The Patents-in-Suit are both entitled “Self-Balancing Vehicle” and were filed December 

15, 2014. (Dkt. 101 ¶ 16; Hatch Decl. ¶ 46.) The D’723 Patent issued on September 1, 2015 and 

contains eight figures illustrating portions of the self-balancing vehicle. (Dkt. 101 ¶ 16; Hatch 

Decl. ¶ 47.)

Table 1: The Claimed Design of the D’723 Patent

Fig.1 is a top plan view 

of a self-balancing 

vehicle showing our new 

design 

Fig.2 is a bottom plan 

view thereof

3 “Differences, however, must be evaluated in the context of the claimed design as a whole, and 

not in the context of separate elements in isolation.” Id. at 674; see also Crocs, 598 F.3d at 1303–

04 (explaining that the focus of the infringement analysis is the “overall impression of the claimed 

ornamental features” rather than “small differences in isolation.”); Int’l Seaway Trading Corp. v. 

Walgreens Corp., 589 F.3d 1233, 1243 (Fed. Cir. 2009) (“The mandated overall comparison is a 

comparison taking into account significant differences between the two designs, not minor or 

trivial differences that necessarily exist between any two designs that are not exact copies of one 

another.”). “[M]inor differences between a patented design and an accused article’s design cannot, 

and shall not, prevent a finding of infringement.” Crocs, 598 F.3d at 1303.

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Fig 3 is a rear elevational 

view thereof

Fig. 4 is a front elevation 

view thereof

Fig. 5 is a left side view 

thereof, the right side 

view being a mirror 

image thereof.

Fig.6 is a rear, top, right 

perspective view thereof

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Fig. 7 is a front, top, left 

perspective view thereof

Fig 8 is a rear, bottom, 

left perspective view 

thereof

The claimed design of the D’723 Patent is the overall ornamental design as described and 

shown in the figures. (Hatch Decl. ¶ 48.) The claimed design of the D’723 Patent does not, 

however, include such features as the wheels, holes on the underside of the vehicle, the “O I” 

pattern, or the “on/off” graphics.4(Hatch Decl. ¶ 48.)

The D’256 Patent issued on September 8, 2015 and contains eight figures illustrating 

portions of the self-balancing vehicle. (Dkt. 101 ¶ 16; Hatch Decl. ¶ 50.) 

4 Both of the Patents-in-Suit employ solid and broken lines to define the scope of the claimed 

designs. See Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1378 (Fed. Cir. 2002) 

(“[I]f features appearing in the figures are not desired to be claimed, the patentee is permitted to 

show the features in broken lines to exclude those features from the claimed design...”); Apple, 

Inc. v. Samsung Elecs. Co., No. 11-CV011846-LHK, 2012 WL 3071477, at *4 (N.D. Cal. July 27, 

2012) (“The patentee may indicate the claimed part of the design with the use of solid lines and 

may indicate the unclaimed, remaining article of manufacture with the use of broken lines.”).

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Table 2: The Claimed Design of the D’256 Patent

Fig.1 is a top plan view of a 

self-balancing vehicle 

showing our new design 

Fig.2 is a bottom plan view 

thereof

Fig 3 is a rear elevational 

view thereof

Fig. 4 is a front elevation 

view thereof

Fig 5. Is a left side view 

thereof, the right side view 

being a mirror image thereof

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Fig.6 is a rear, top, right 

perspective view thereof

Fig. 7 is a front, top, left 

perspective view thereof

Fig 8 is a rear, bottom, left 

perspective view thereof

The claimed design of the D’256 Patent is the overall ornamental design as described and 

shown in the figures, but does not include features depicted in broken lines, such as the wheels, 

holes on the underside of the vehicle, or the “O I” pattern. (Hatch Decl. ¶ 51.)

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A review of the prosecution histories of the Patents-in-Suit show that they were allowed 

over the same cited prior art (Hatch Decl. ¶ 54):

Table 3: The Cited Prior Art Cited on the Face of the D’723 and D’256 Patents

US 8,118,319 US 8,469,376 US 8,414,000

Appl. 

2007-0273118 US 8,500,145 US D647,991

US D739,9065

In contrast to the prior art, “the overall impression of the claimed design of the D’723 and 

D’256 Patents is entirely unique.” (Hatch Decl. ¶ 55.) Though some of the cited prior art does 

feature a “generally hourglass outer form,” none of the relevant prior art creates the same visual 

impression of the Patents-in-Suit, namely the “integrated hourglass body with a relatively flat 

surface across the top of the main body, pronounced ‘footing’ areas, and open-arched fenders over 

the top of the wheel area.” (Hatch Decl. ¶ 56) (emphasis added).)

5 While U.S. Patent No. D739,906 (“the D’906 patent”) was filed on March 12, 2013 and may be 

considered prior art, it was not cited on the face of the Patents-in-Suit.

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2. An Ordinary Observer Would Find the Overall Impression of the 

Accused Products to be Substantially Similar to the Patents-in-Suit.

A simple side-by-side comparison clearly demonstrates that each of the Accused Products 

are not plainly dissimilar or sufficiently distinct from the claimed designs of the Patents-in-Suit. 

(See Hatch Decl. ¶¶ 66–69.) Specifically, each of the Accused Products and the claimed designs 

of the Patents-in-Suit share the same overall visual impression to the hypothetical ordinary 

observer of an integrated hourglass body with a relatively flat surface across the top of the main 

body, pronounced ‘footing’ areas, and open-arched fenders over the top of the wheel area. (See 

Hatch Decl. ¶¶ 64–65.)

Next, the Court’s analysis turns to a comparison of the Accused Products and the Patentsin-Suit to the prior art. Egyptian Goddess, 543 F.3d at 674. As shown below, it is clear from a 

three-way comparison that an ordinary observer familiar with the prior art would find that the 

overall visual impression created by each of the Accused Products is closer to each of the patented

designs than it is to the prior art, such that the Accused Products are substantially the same as the 

claimed designs of the Patents-in-Suit. (See Hatch Decl. ¶¶ 70–71.)

a. The Accused Product “Gyroor A” Infringes on the Patents-in-Suit.

In the eyes of the hypothetical ordinary observer familiar with the prior art, giving such 

attention as a purchaser usually gives, the overall visual appearance of “Gyroor A” is substantially 

the same as the overall appearance of the claimed designs of the Patents-in-Suit, inducing him to 

purchase “Gyroor A” supposing it to be the claimed design of the Patents-in-Suit. (See Hatch Decl. 

¶¶ 72–79.) 

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i. The Accused Product “Gyroor A” Is Substantially Similar to the

D’723 Patent.

In the eyes of the ordinary observer, not only is the overall visual impression of the claimed 

design of the D’723 Patent not plainly dissimilar from the design of “Gyroor A,” but when further 

comparing the designs to the closest prior art, “Gyroor A” is closer in overall impression to the 

claimed design of the D’723 Patent than to the D’906 Patent. (Hatch Decl. ¶¶ 73–74.)

Specifically, “Gyroor A” and the claimed design of the D’723 Patent both create a visual

impression of an integrated hourglass body with a relatively flat surface across the top of the main 

body, pronounced ‘footing’ areas, and open-arched fenders over the top of the wheel area. (Hatch 

Decl. ¶ 74.) While the D’906 also includes an hourglass body, the design as a whole gives a 

distinctly different impression, as it creates an impression of a very uncluttered, rounded, smooth 

body with no pronounced footing area and closed fender skirts. (Hatch Decl. ¶ 74.)

Table 9: Three-way comparison of “Gyroor A” to the D‘906 Patent and the claimed 

design of the D’723. 

FIG. 6 of the ’D723 patent

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Perspective view of 

Gyroor A

FIG. 4 of the prior 

art ’D906 Patent

Figure 1 of the D’723 

Patent

Top view of Gyroor A

Figure 3 of the prior art 

D‘906 Patent.

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(Hatch Decl. ¶ 72, Table 9.)

6

Therefore, in light of the closest prior art, the claimed design of the D’723 Patent is 

substantially the same as the visual impression of “Gyroor A”. (Hatch Decl. ¶ 75.)

ii. The Accused Product “Gyroor A” Is Substantially Similar to the 

D’256 Patent.

Likewise, with respect to the D’256 Patent, in the eyes of the ordinary observer, the overall 

visual impression of the claimed design of the D’256 Patent is not plainly dissimilar from the 

design of “Gyroor A.” And, when further comparing the designs to the closest prior art, “Gyroor 

A” is closer in overall impression to the claimed design of the D’256 Patent than to the D’906 

Patent. (Hatch Decl. ¶¶ 77–78.)

Specifically, “Gyroor A” and the claimed design of the D’256 Patent both create a visual

impression of an integrated hourglass body with a relatively flat surface across the top of the main 

body, pronounced ‘footing’ areas, and open-arched fenders over the top of the wheel area. (Hatch 

Decl. ¶ 78.) While the D’906 also includes an hourglass body, the design as a whole gives a 

distinctly different impression, as it creates an impression of a very uncluttered, rounded, smooth 

body with no pronounced footing area and closed fender skirts. (Hatch Decl. ¶ 78.)

6 Although each of the charts only present selected views of the Accused Product and the figures 

of the Patents-in-Suit, Mr. Hatch’s analysis was undertaken by comparing each of the actual, 

physical Accused Products to the patented designs as a whole. The full comparison of all of the 

figures of the Patents-in-Suit to the Accused Products and the D’906 Patent are shown in Exhibit 

1 to the Hatch Declaration. (See Hatch Decl. ¶¶ 72, 76, 80, 84.)

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Table 10: Three-way comparison of the Gyroor A to the D’906 Patent and the 

claimed design of the D’256. 

FIG. 6 of the D’256 patent

Perspective view of 

Gyroor A

FIG. 4 of the prior 

art ’D906 Patent

Figure 1 of the D’256 

Patent

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Top view of Gyroor A

Figure 3 of the prior art 

D‘906 Patent.

(Hatch Decl. ¶ 76, Table 10.)

Therefore, in light of the closest prior art, the claimed design of the D’256 Patent is 

substantially the same as the visual impression of “Gyroor A”. (Hatch Decl. ¶ 79.)

b. The Accused Product “Gyroor C” Infringes on the Patents-in-Suit.

In the eyes of the hypothetical ordinary observer familiar with the prior art, giving such 

attention as a purchaser usually gives, the overall visual appearance of “Gyroor C” is substantially 

the same as the overall appearance of the claimed designs of the Patents-in-Suit, inducing him to 

purchase “Gyroor C” supposing it to be the claimed design of the Patents-in-Suit. (See Hatch Decl. 

¶¶ 80–87.)

i. The Accused Product “Gyroor C” Is Substantially Similar to the 

D’723 Patent.

In the eyes of the ordinary observer, not only is the overall visual impression of the claimed 

design of the D’723 Patent not plainly dissimilar from the design of “Gyroor C,” but when further 

comparing the designs to the closest prior art, “Gyroor C” is closer in overall impression to the 

claimed design of the D’723 Patent than to the D’906 Patent. (Hatch Decl. ¶¶ 81–82.)

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Specifically, “Gyroor C” and the claimed design of the D’723 Patent both create a visual

impression of an integrated hourglass body with a relatively flat surface across the top of the main 

body, pronounced ‘footing’ areas, and open-arched fenders over the top of the wheel area. (Hatch 

Decl. ¶ 82.) While the D’906 also includes an hourglass body, the design as a whole gives a 

distinctly different impression, as it creates an impression of a very uncluttered, rounded, smooth 

body with no pronounced footing area and closed fender skirts. (Hatch Decl. ¶ 82.)

Table 11: Three-way comparison of Gyroor C to the D‘906 Patent and the claimed 

design of the D’723. 

FIG. 6 of the ’D723 patent

Perspective view of 

Gyroor C

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FIG. 4 of the prior 

art ’D906 Patent

Figure 1 of the D’723 

Patent

Top view of Gyroor C

Figure 3 of the prior art 

D‘906 Patent.

(Hatch Decl. ¶ 80, Table 11.)

Therefore, in light of the closest prior art, the claimed design of the D’723 Patent is 

substantially the same as the visual impression of “Gyroor C”. (Hatch Decl. ¶ 83.)

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ii. The Accused Product “Gyroor C” Is Substantially Similar to the 

D’256 Patent.

Likewise, with respect to the D’256 Patent, in the eyes of the ordinary observer, the overall 

visual impression of the claimed design of the D’256 Patent is not plainly dissimilar from the 

design of “Gyroor C.” And, when further comparing the designs to the closest prior art, “Gyroor 

C” is closer in overall impression to the claimed design of the D’256 Patent than to the D’906 

Patent. (Hatch Decl. ¶¶ 85–86.)

Specifically, “Gyroor C” and the claimed design of the D’256 Patent both create a visual

impression of an integrated hourglass body with a relatively flat surface across the top of the main 

body, pronounced ‘footing’ areas, and open-arched fenders over the top of the wheel area. (Hatch 

Decl. ¶ 86.) While the D’906 also includes an hourglass body, the design as a whole gives a 

distinctly different impression, as it creates an impression of a very uncluttered, rounded, smooth 

body with no pronounced footing area and closed fender skirts. (Hatch Decl. ¶ 86.)

Table 12: Three-way comparison of the Gyroor C to the D’906 Patent and the 

claimed design of the D’256. 

FIG. 6 of the D’256 patent

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Perspective view of 

Gyroor C

FIG. 4 of the prior 

art ’D906 Patent

Figure 1 of the D’256 

Patent

Top view of Gyroor C

Figure 3 of the prior art 

D‘906 Patent.

(Hatch Decl. ¶ 84, Table 12.)

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Therefore, in light of the closest prior art, the claimed design of the D’256 Patent and is 

substantially the same as the visual impression of “Gyroor C”. (Hatch Decl. ¶ 87.)

c. The Accused Product “Gyroor E” Infringes on the Patents-in-Suit.

In the eyes of the hypothetical ordinary observer familiar with the prior art, giving such 

attention as a purchaser usually gives, the overall visual appearance of “Gyroor E” is substantially 

the same as the overall appearance of the claimed designs of the Patents-in-Suit, inducing him to 

purchase “Gyroor E” supposing it to be the claimed design of the Patents-in-Suit. (See Hatch Decl. 

¶¶ 88–95.)

i. The Accused Product “Gyroor E” Is Substantially Similar to the 

D’723 Patent.

In the eyes of the ordinary observer, not only is the overall visual impression of the claimed 

design of the D’723 Patent not plainly dissimilar from the design of “Gyroor E,” but when further 

comparing the designs to the closest prior art, “Gyroor E” is closer in overall impression to the 

claimed design of the D’723 Patent than to the D’906 Patent. (Hatch Decl. ¶¶ 89–90.)

Specifically, “Gyroor E” and the claimed design of the D’723 Patent both create a visual

impression of an integrated hourglass body with a relatively flat surface across the top of the main 

body, pronounced ‘footing’ areas, and open-arched fenders over the top of the wheel area. (Hatch 

Decl. ¶ 90.) While the D’906 also includes an hourglass body, the design as a whole gives a 

distinctly different impression, as it creates an impression of a very uncluttered, rounded, smooth 

body with no pronounced footing area and closed fender skirts. (Hatch Decl. ¶ 90.)

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Table 13: Three-way comparison of Gyroor E to the D‘906 Patent and the claimed 

design of the D’723. 

FIG. 6 of the ’D723 patent

Perspective view of 

Gyroor E

FIG. 4 of the prior 

art ’D906 Patent

Figure 1 of the D’723 

Patent

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Top view of Gyroor E

Figure 3 of the prior art 

D‘906 Patent.

(Hatch Decl. ¶ 88, Table 13.)

Therefore, in light of the closest prior art, the claimed design of the D’723 Patent is 

substantially the same as the visual impression of “Gyroor E”. (Hatch Decl. ¶ 91.)

ii. The Accused Product “Gyroor E” Is Substantially Similar to the 

D’256 Patent.

Similarly, with respect to the D’256 Patents, in the eyes of the ordinary observer, the overall 

visual impression of the claimed design of the D’256 Patent is not plainly dissimilar from the 

design of “Gyroor E.” And, when further comparing the designs to the closest prior art, “Gyroor 

E” is closer in overall impression to the claimed design of the D’256 Patent than to the D’906 

Patent. (Hatch Decl. ¶¶ 93–94.)

Specifically, “Gyroor E” and the claimed design of the D’256 Patent both create a visual

impression of an integrated hourglass body with a relatively flat surface across the top of the main 

body, pronounced ‘footing’ areas, and open-arched fenders over the top of the wheel area. (Hatch 

Decl. ¶ 94.) While the D’906 also includes an hourglass body, the design as a whole gives a 

distinctly different impression, as it creates an impression of a very uncluttered, rounded, smooth 

body with no pronounced footing area and closed fender skirts. (Hatch Decl. ¶ 94.)

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Table 14: Three-way comparison of the Gyroor E to the D’906 Patent and the 

claimed design of the D’256. 

FIG. 6 of the D’256 patent

Perspective view of 

Gyroor E

FIG. 4 of the prior 

art ’D906 Patent

Figure 1 of the D’256 

Patent

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Top view of Gyroor E

Figure 3 of the prior art 

D‘906 Patent.

(Hatch Decl. ¶ 92, Table 14.)

Therefore, in light of the closest prior art, the claimed design of the D’256 Patent is 

substantially the same as the visual impression of “Gyroor E”. (Hatch Decl. ¶ 95.)

B. Plaintiffs Demonstrate the Remaining Requirements for Entry of the New 

TRO and New PI.

Plaintiffs meet the remaining requirements for entry of the New TRO and New PI—that 

(2) no adequate remedy at law exists, and (3) they will suffer irreparable harm if the injunction is 

denied. Ty, Inc., 237 F.3d. at 895; Celsis, 664 F.3d at 926. Plaintiffs also make a showing that the

balance of the respective irreparable harms to the parties and the consideration of the potential 

effects on the public interest favors granting the New TRO and New PI. Ty, Inc., 237 F.3d. at 895.

1. Plaintiffs Have No Adequate Remedy at Law to Compensate for 

Defendants’ Infringement and Will Continue to Suffer Irreparable 

Harm Absent the New TRO and New PI.

As stated above, Plaintiffs have no adequate remedy at law and will continue to be 

irreparably harmed absent the entry of the New TRO and New PI. Here, the Court may presume 

irreparable harm because Plaintiffs possess valid patents and established that the Accused 

Produced infringed upon those patents. See Bell & Howell Doc. Mgmt. Prods. Co. v. Altek Sys., 

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132 F.3d 701, 708 (Fed. Cir. 1997) (“In matters involving patent rights, irreparable harm has been 

presumed when a clear showing has been made of patent validity and infringement.”). Beyond that 

presumption, Plaintiffs present additional, overwhelming evidence of the irreparable harm caused 

by Defendants’ continued sale of the Accused Products; notably, Plaintiffs have and will continue 

to suffer eroded control of their patent rights, decreased market share, and harm to reputation and 

goodwill. (Dkt. 101 ¶ 43.) This Circuit has consistently acknowledged the incalculable nature of 

these harms such that no adequate remedy at law exists. See Celsis, 664 F.3d at 930. In particular, 

harm to reputation and goodwill is immeasurable in ways not readily compensable by an award of 

money damages. See Promatek Indus. Ltd. v. Equitrac Corp., 300 F.3d 808, 813 (7th Cir. 2002); 

Gateway E. Railway Co. v. Terminal Railroad Assoc. of St. Louis, 35 F.3d 1134, 1140 (7th Cir. 

1994). Additionally, the Federal Circuit has held injunctive relief justifiable in cases involving 

foreign infringers from whom collection of monetary damages would be difficult. Robert Bosch, 

LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1156 (Fed. Cir. 2011).

Furthermore, Plaintiffs have established a causal nexus between Defendants’ infringement 

and the irreparable harm suffered. (See Third Supplemental Declaration of Richard F. Bero, CPA, 

CVA, dated November 8, 2022 (“Bero Decl.”)); Apple Inc. v. Samsung Elecs. Co., 735 F.3d 1352, 

1264 (Fed. Cir. 2013). The hoverboard market is a competitive one in which Plaintiffs and 

Defendants directly compete. (Bero Decl. ¶¶ 87–92.) Plaintiffs’ commercial success in the 

hoverboard market is due, in part, to the ways by which its Patents-in-Suit have “revolutionized” 

hoverboard design. (Bero Decl. ¶¶ 94–95.) Plaintiffs have sold thousands of products in the United 

States featuring the Patents-in-Suit, notably an approximate 459,000 hoverboards generating $50.6 

million in sales between January 1, 2019, and September 30, 2020. (Bero Decl. ¶ 97.) Accordingly, 

there is a causal nexus between the Patents-in-Suit and the demand for the products. (Bero Decl. ¶

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29

100.) In light of the presumption of irreparable harm afforded to the Plaintiffs, in tandem with

evidence of the same, entry of the New TRO and New PI is appropriate in these circumstances.

2. The Balance of the Parties’ and the Public’s Interest Favor Entry of 

the New TRO and New PI.

As Plaintiffs demonstrate a prima facie case of design patent infringement, including the 

necessity for equitable relief, the Court must subsequently balance the potential harms to both the 

parties’ and the public’s interests in denying or granting the New TRO and New PI. See Ty, Inc., 

237 F.3d at 895; Abbott Labs v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). Plaintiffs 

establish valid ownership of the Patents-in-Suit, as well as infringement by the Defendants’ 

Accused Products such that Plaintiffs are likely to succeed on the merits of their patent 

infringement claim against Defendants. See supra, Section I(A). Plaintiffs further establish having 

suffered irreparable harm in the form of eroded control of patent rights, diminished market share, 

and injury to reputation and goodwill. See supra, Section I(B)(1). Plaintiffs provide additional 

support for equitable relief on the grounds that they are unlikely to recover monetary damages, if 

calculable, given Defendants’status as foreign entities. See supra, Section I(B)(1). Absent the New 

TRO and New PI, Plaintiffs will continue to suffer all aforementioned losses.

By comparison, Defendants can make no showing of such reciprocal harms caused by the 

New TRO and New PI. Any “harm” to Defendants is self-inflicted—Defendants’ loss of sales of 

the Accused Products is the result of its own calculated risk in knocking off Plaintiffs’ designs and 

selling infringing products. See Celsis, 664 F.3d at 931. Defendants should be afforded little, if 

any, equitable consideration of harms caused by the New TRO and New PI given their position as 

willful infringers of Plaintiffs’ Patents-in-Suit.

Additionally, the Court should consider the benefit to the public interest in granting the 

New TRO and New PI. Public policy generally favors protecting intellectual property rights, 

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30

including valid patent holder’s right to enforce that patent against infringers. See Apple, 809 F.3d 

at 647 (“[T]he public interest nearly always weighs in favor of protecting property rights in the 

absence of countervailing factors, especially when the patentee practices his invention.”). Here, 

the New TRO and New PI will ensure inventors and innovators, like Plaintiffs, will remain 

incentivized to develop new products and patent inventions with the reassurance that they may 

enforce patents against infringers. Further, the public will not be harmed by entry of the New TRO

and New PI, as the public may still purchase non-infringing hoverboard products that remain on 

the market in the interim. See id. (no harm to public interest where removal of unauthorized 

infringing features from product could be effected without recalling any of the products or 

disrupting consumer use of the products). Accordingly, the balance of harms clearly and heavily 

favors entry of the New TRO and New PI.

II. THE EQUITABLE RELIEF SOUGHT IS APPROPRIATE

The Patent Act explicitly authorizes courts to issue injunctive relief “in accordance with 

the principles of equity to prevent the violation of any right secured by patent, on such terms as 

the court deems reasonable.” 35 U.S.C. § 283. Enjoining and restraining Defendants from offering 

for sale, selling, and importing any of the Accused Products that infringe the claimed designs of 

the Patents-in-Suit is necessary to stop the ongoing harm to Plaintiffs’ control over their rights to 

the Patents-in-Suit, their reputation and associated goodwill, as well as to prevent Defendants from 

improperly benefiting from their unauthorized sale of the Accused Products.

In addition, maintaining the status quo and continuing the asset freeze is appropriate. Since 

entry of the Prior TRO and Prior PIs, third-party payment platforms and providers have restrained 

accounts linked to Defendants that were selling infringing products, including the Accused 

Products. Absent such restraints, Defendants may otherwise fraudulently transfer their financial 

assets, thereby depriving Plaintiffs of final relief. See, e.g., Deckers Outdoor Corp. v. Partnerships 

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31

& Unincorporated Associations, No. 13 C 2167, 2013 WL 1337616, at *9 (N.D. Ill. Mar. 27, 2013)

(“[F]reezing of financial assets is also appropriate in this case because Defendants may otherwise 

transfer their financial assets to overseas accounts, thereby depriving the Plaintiff of final relief.”) 

(citing Reebok Int'l Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 559 (9th Cir.1992)); Lorillard 

Tobacco Co. v. Montrose Wholesale Candies & Sundries, Inc., No. 03-cv-4844, 2005 WL 3115892 

(N.D. Ill. Nov. 8, 2005). A freeze of Defendants’ assets merely ensures that Defendants will not 

hide their funds in order to avoid payment of a potential judgment—in the unlikely event that 

Defendants prevail, their assets will be available to them at that time. Accordingly, the equitable 

relief sought by Plaintiffs is appropriate. 

III. ALL RELEVANT PARTIES ARE SUFFICIENTLY ON NOTICE OF THIS 

MOTION.

Pursuant to Federal Rule of Civil Procedure 65(a) and (b), Plaintiffs have provided notice 

to all parties it seeks to enjoin from infringing activities under this New TRO and New PI. While 

a temporary restraining order may be issued without notice in certain circumstances (see Fed. R. 

Civ. P. 65(b)), the Federal Rules of Civil Procedure require that a court issue a preliminary 

injunction only upon notice to the adverse party. Fed. R. Civ. P. 65(a). Such notice serves to give 

the non-moving parties a fair opportunity to oppose the application and prepare for such 

opposition. Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Trust Drivers No. 70 

of Alameda County, 415 U.S. 423, 432 n.7 (1974); see also Illinois ex rel. Hartigan v. Peters, 871 

F.2d 1336, 1340 (7th Cir. 1989) (“[N]otice should apprise a defendant of a hearing and provide 

adequate time to prepare a defense.”) (internal citation omitted).

All of the Defendants have previously appeared in this Action, and will receive notice upon 

the filing of this motion for entry of a New TRO and New PI, in accordance with Fed. R. Civ. P. 

65(a) notice requirements. Plaintiffs also provided advanced notice to Defendants’ counsel and 

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32

conferred regarding a briefing schedule. As such, Defendants and all parties to whom the New 

TRO and New PI apply have ample time to be heard in advance of this Court’s decision and entry 

of the New TRO and New PI, and well ahead of any restraints upon Defendants. There can be no 

dispute that Defendants have sufficient notice of this motion.

CONCLUSION

Plaintiffs demonstrate the necessity of a preliminary injunction in this matter and this Court 

should therefore issue the New TRO and grant the New PI enjoining Defendants from selling the 

Accused Products and restraining the transfer of assets associated with such sales.

Dated: November 9, 2022

PALMERSHEIM & MATHEW LLP TARTER KRINSKY & DROGIN LLP

By: /s/ Richard J.L. Lomuscio

Robert J. Palmersheim Richard J.L. Lomuscio

Anand C. Mathew Mark Berkowitz

Timothy G. Parilla 1350 Broadway

401 N. Franklin Street, Suite 4S New York, NY 10018

Chicago, IL 60654 Tel.: (212) 216-8000

Tel.: (312) 319-1791 Fax: (212) 216-8001

E-mail: acm@thepmlawfirm.com E-mail: rlomuscio@tarterkrinsky.com

E-mail: rjp@thepmlawfirm.com E-mail: mberkowitz@tarterkrinsky.com

E-mail: tgp@thepmlawfirm.com

Attorneys for Plaintiffs

Case: 1:20-cv-04806 Document #: 593 Filed: 11/09/22 Page 37 of 38 PageID #:14250
CERTIFICATE OF SERVICE

I hereby certify that on November 9, 2022, a true and correct copy of the foregoing

document was filed with the Clerk of the Court using CM/ECF which will generate and serve a

Notice of Electronic Filing to all parties to this action.

Dated: November 9, 2022

PALMERSHEIM & MATHEW LLP

Robert J. Palmersheim

Anand C. Mathew

Timothy G. Parilla

401 N. Franklin Street, Suite 4S

Chicago, IL 60654

Tel.: (312) 319-1791

E-mail: acm@thepmlawfirm.com

E-mail: rjp@thepmlawfirm.com

E-mail: tgp@thepmlawfirm.com

TARTER KRINSKY & DROGIN LLP

By: /s/ Richard J.L. Lomuscio

Richard J.L. Lomuscio

Mark Berkowitz

1350 Broadway

New York, NY 10018

Tel.: (212) 216-8000

Fax: (212) 216-8001

E-mail: rlomuscio@tarterkrinsky.com

E-mail: mberkowitz@tarterkrinsky.com

Attorneys for Plaintiffs

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