Case 1:23-cv-20341-RNS Document 12 Entered on FLSD Docket 02/08/2023 Page 1 of 11

United States District Court

for the
Southern District of Florida

Max’is Creations Inc., Plaintiff, )

)
v. )
)
The Individuals, Partnerships, and ) Civil Action No. 23-20341-Civ-Scola
Unincorporated Associations )
identified on Schedule “A”, )
Defendants. )

Order Granting Ex Parte Application for Entry of

Temporary Restraining Order and Setting Hearing
This matter is before the Court on the Plaintiff Max’is Creations Inc.’s
(“MCINC”) ex parte application for entry of temporary restraining order,
preliminary injunction, and order restraining transfer of assets (the
“Application”). (MCINC Appl., ECF No. 7.) MCINC moves ex parte for entry of a
temporary restraining order and an order restraining the financial accounts
used by the Defendants, the individuals, partnerships, and unincorporated
associations identified on Schedule “A” (collectively the “Defendants”), pursuant
to 15 U.S.C. § 1116, 17 U.S.C §§ 502 and 503, 35 U.S.C. §§ 281 and 283, Fed.
R. of Civ. P. 65, and the All Writs Act, 28 U.S.C. § 1651(a). The Court has
carefully reviewed the Application, the pertinent portions of the record, and is
otherwise fully advised in the premises. The Court grants the Application.
(MCINC Appl., ECF No. 7.)

1. Background
The following factual background is taken from MCINC’s complaint
(Compl., ECF No. 1), Application (MCINC Appl., ECF No. 7), and supporting
evidentiary submissions and exhibits.
MCINC is a family-owned business that makes and sells high-quality
patented mugs and bowls developed by Max Ash, whose mission is to raise
awareness and support for otherwise bright and capable children in this
country who struggle with learning and attention issues. (J. Ash Decl. ¶¶ 7, 15,
ECF No. 7-1.)
MCINC is the exclusive licensee of all rights in and to different federally
registered trademark(s) in International Class 21 (collectively the “MCINC
Marks”), as shown in composite exhibit 1 to the complaint (Compl. Ex. 1, ECF
No. 1-1), including among them: THE MUG WITH A HOOP!, with Registration
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Nos. 6,869,541 and 4,948,336; THE MUG WITH A GLOVE!, with Registration
Nos. 6,869,540; THE SOCCER MUG WITH A GOAL!, with Registration Nos.
6,869,537 and 5,111,526; THE MUG WITH A GOALPOST!, with Registration
Nos. 6,869,539 and 5,111,525; MAX’IS CREATIONS M (Stylized/Design), with
Registration No. 5,011,855; MAX’IS CREATIONS, with Registration No.
5,020,853; and THE WORLD WOULD BE BETTER IF WE COULD PLAY WITH
OUR FOOD!, with Registration No. 4,992,727. (J. Ash Decl. ¶¶ 15–17, ECF No.
7-1.)
The 5,011,855 MAX’IS CREATIONS M (Stylized/Design), 5,020,853
MAX’IS CREATIONS, and 4,992,727 THE WORLD WOULD BE BETTER IF WE
COULD PLAY WITH OUR FOOD! Marks are incontestable. (Id. ¶ 18.) The
6,869,541 THE MUG WITH A HOOP!, 6,869,540 THE MUG WITH A GLOVE!,
6,869,537 THE SOCCER MUG WITH A GOAL! and 6,869,539 THE MUG WITH
A GOALPOST! Marks have acquired distinctiveness in whole based on five or
more year’s use, which was claimed and recognized with the United States
Patent and Trademark Office under Trademark Act Section 2(f), 15 U.S.C.
§ 1052(f). (Id. ¶ 19.)
MCINC makes and sells high-quality patented mugs and bowls under the
MCINC Marks. The MCINC Marks are used in connection with the manufacture
and distribution of MCINC’s high-quality mugs and bowls. (Id. ¶¶ 15, 20.)
MCINC advertises, markets, promotes, and sells its high-quality patented
mugs and bowls under the MCINC Marks using photographs that are protected
by copyright and registered with the Copyright Office (collectively the
“Copyrighted Photographs”). (Id. ¶ 41.) MCINC is the exclusive licensee of all
rights in and to the Copyrighted Photographs, including the exclusive right to
pursue acts of infringement worldwide and retain and recover all proceeds
thereof. (Id. ¶ 42.) MCINC’s licensed photographs are duly registered with the
Register of Copyrights as visual materials, namely VA 2-026-049 “Group of
Registration Photos, Max’is Creations 2015 Mugs, published Feb.15, 2015-
Jul.29, 2015; 14 photos,” and VA 2-026-058 “Group Registration photos, Max
Photos, published June 13, 2014; 2 photos.” True and correct copies of
Copyright Certificates of Registration and the photographs they apply to are
attached as composite exhibit 2 to the complaint (Compl. Ex. 2, ECF No. 1-2).
(J. Ash Decl. ¶¶ 41–43, ECF No. 7-1.)
MCINC’s mugs and bowls utility configuration and design features are
protected under different registered and valid utility and design patent(s) with
the United States Patent and Trademark Office (collectively the “MCINC
Patents”), including among them: 9,375,106, “BOWL/MUG WITH A FIGURINE
FOR PLAYING WITH FOOD”; D723,336, “MUG WITH BASKETBALL HOOP”;
D755,015, “MUG WITH BASEBALL GLOVE”; D760,546, “HOCKEY MUCG

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WITH A NET”; D760,547, “FOOTBALL MUG WITH A GOAL POST”; and

D763,041, “SOCCER MUG WITH A GOAL.” MCINC is the exclusive licensee of
all rights in and to the MCINC Patents, including the exclusive right to pursue
acts of infringement worldwide and retain and recover all proceeds thereof.
True and correct copies of U.S. Utility and Designs Patents Registrations are
attached as composite exhibit 3 to the complaint (Compl. Ex. 3, ECF No. 1-3).
(J. Ash Decl. ¶¶ 47–50, ECF No. 7-1.)
MCINC alleges that the Defendants, through e-commerce stores
operating via Internet marketplace platforms under their seller identification
names identified on Schedule “A” to the complaint (the “Seller IDs”), have
advertised, promoted, offered for sale, or sold goods bearing or using what
MCINC has determined to be counterfeits, infringements, reproductions and/or
colorable imitations of one or more of the MCINC Marks, the Copyrighted
Photographs, and the MCINC Patents. (Id. ¶¶ 56–60; J. Rothman Decl. ¶¶ 8,
11–13, ECF No. 7-2.)
The Defendants are not now, nor have they ever been, authorized or
licensed to use, reproduce, or make counterfeits, reproductions, or colorable
imitations of one or more of the MCINC Marks, the Copyrighted Photographs
and the MCINC Patents. (J. Ash Decl. ¶¶ 46, 51, 62, ECF No. 7-1.)
MCINC investigated the promotion and sale of counterfeit and infringing
versions of MCINC’s products by the Defendants and to obtain the available
payment account data for receipt of funds paid to the Defendants for the sale of
counterfeit and infringing products through the Seller IDs. (J. Ash Decl. ¶¶ 55–
58, ECF No. 7-1; J. Rothman Decl. ¶ 11, ECF No. 7-2.)
MCINC or someone under its supervision accessed the e-commerce
stores operating under the Defendants’ Seller IDs. MCINC or someone under its
supervision created detailed web page captures and images of the products
using one or more of the MCINC Marks, the Copyrighted Photographs, and the
MCINC Patents offered for sale by the Defendants. (J. Ash Decl. ¶¶ 57, 59, 60,
ECF No. 7-1; J. Rothman Decl. ¶¶ 11–13, ECF No. 7-2.) Test purchases were
placed for certain products – all bearing or using counterfeits and
infringements of one or more of the MCINC Marks, the Copyrighted
Photographs, and the MCINC Patents at issue in this action – and requested
that each product be shipped to addresses in the United States. (J. Ash Decl.
¶¶ 74, 75, ECF No. 7-1.)
MCINC or someone under its supervision reviewed and visually inspected
the products and determined the products were non-genuine, unauthorized
versions of MCINC’s products. (Id. ¶¶ 65, 67, 75.)
On January 27, 2023, MCINC filed its complaint (Compl., ECF No. 1)
against the Defendants for federal trademark infringement (Count One), false

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designation of origin (Count Two), common law unfair competition (Count

Three), common law trademark infringement (Count Four), copyright
infringement (Count Five), and patent infringement (Count Six). On January
30, 2023, MCINC filed its ex parte application for entry of temporary
restraining order, preliminary injunction, and order restraining transfer of
assets (the “Application”). (MCINC Appl., ECF No. 7.)

2. Legal Standard
To obtain a temporary restraining order, a party must demonstrate “(1) a
substantial likelihood of success on the merits; (2) that irreparable injury will
be suffered if the relief is not granted; (3) that the threatened injury outweighs
the harm the relief would inflict on the non-movant; and (4) that the entry of
the relief would serve the public interest.” Schiavo ex. rel Schindler v. Schiavo,
403 F.3d 1223, 1225–26 (11th Cir. 2005) (per curiam). Additionally, a court
may only issue a temporary restraining order without notice to the adverse
party or its attorney if:

(A) specific facts in an affidavit or a verified complaint clearly

show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and
(B) the movant’s attorney certifies in writing any efforts made to
give notice and the reasons why it should not be required.

Fed. R. Civ. P. 65(b)(1). Ex parte temporary restraining orders “should be

restricted to serving their underlying purpose of preserving the status quo and
preventing irreparable harm just so long as is necessary to hold a hearing, and
no longer.” Granny Goose Foods, Inc. v. Bd. of Teamsters & Auto Truck Drivers
Local No. 70, 415 U.S. 423, 439 (1974).

3. Analysis
Based on the declarations submitted in support of MCINC’s Application,
the Court concludes that MCINC has a strong probability of proving at trial
that consumers are likely to be confused by the Defendants’ advertisement,
promotion, sale, offer for sale, or distribution of goods bearing or using
counterfeits, reproductions, or colorable imitations of one or more the MCINC
Marks, the Copyrighted Photographs, and the MCINC Patents, that the
products the Defendants are selling and promoting for sale are copies of
MCINC’s products that bear or use copies of the MCINC's intellectual property,
and that the infringement of the trademarks, copyrights, and patents will likely

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cause MCINC to suffer immediate and irreparable injury if a temporary

restraining order is not granted.
The following specific facts, as set forth in MCINC’s Complaint, the
Application, and accompanying declarations, demonstrate that immediate and
irreparable loss, damage, and injury will result to MCINC and to consumers
before the Defendants can be heard in opposition unless MCINC’s request for
ex parte relief is granted: a) the Defendants own or control e-commerce stores
via Internet marketplace platforms operating under their Seller IDs which
advertise, promote, offer for sale, and sell products bearing or using counterfeit
and infringing trademarks, copyrights and patents in violation of MCINC’s
rights; b) there is good cause to believe that more counterfeit and infringing
products bearing or using MCINC’s trademarks, copyrights and patents will
appear in the marketplace, that consumers are likely to be misled, confused, or
disappointed by the quality of these products, and that MCINC may suffer loss
of sales for its genuine products; and c) there is good cause to believe that if
MCINC proceeds to put the Defendants on notice of this Application, the
Defendants can easily and quickly transfer or modify e-commerce store
registration data and content, change payment accounts, redirect consumer
traffic to other seller identification names, and transfer assets and ownership of
the Seller IDs, thereby thwarting MCINC’s ability to obtain meaningful relief.
The potential harm to the Defendants in restraining their trade in
counterfeit and infringing branded goods if a temporary restraining order is
issued is far outweighed by the potential harm to MCINC, its reputation, and
its goodwill as a manufacturer and distributor of quality products, if such relief
is not issued.
The public interest favors issuance of the temporary restraining order to
protect MCINC’s trademarks, copyrights and patents interests and protect the
public from being defrauded by the palming off of counterfeit goods as MCINC’s
genuine goods.
Further, under 15 U.S.C. §1117(a), MCINC may be entitled to recover, as
an equitable remedy, the illegal profits gained through the Defendants’
distribution and sales of goods bearing or using counterfeits and infringements
of MCINC’s trademarks. See Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51
F.3d 982, 987 (11th Cir. 1995); Reebok Int’l, Ltd. v. Marnatech Enters., Inc., 970
F.2d 552, 559 (9th Cir. 1992). In addition, pursuant to 17 U.S.C § 504 (a)(1)
and (b), MCINC may be entitled to recover, as an equitable remedy, the actual
damages suffered as result of the infringement of the Copyrighted Photographs
and any additional profits of the Defendants that are attributable to the
infringement and are not taken into account in computing the actual damages
or statutory damages pursuant 17 U.S.C § 504(a)(2) and (c). Under the Patent

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Act, MCINC may be entitled to a compensation for the infringement, no less

than a reasonable royalty for the use made of the invention by the Defendants,
together with the interest and cost fixed by the Court. See 35 U.S.C. § 284.
Also, MCINC may be entitled to the extent of the total profit obtained by the
Defendants for applying its registered design patents or any colorable imitation
thereof, to Defendant’s products for purpose of sale or expose for sale. See 35
U.S.C. § 289.
In light of the inherently deceptive nature of the counterfeiting business,
and the likelihood that the Defendants have violated federal trademark,
copyrights and patent laws, MCINC has good reason to believe the Defendants
will hide or transfer their ill-gotten assets beyond the jurisdiction of this Court
unless those assets are restrained.

4. Conclusion
Accordingly, the Court, having considered the Application, and having
found good cause, order and adjudges that the Application (MCINC Appl.,
ECF No. 7) is granted, and a temporary restraining order is entered under the
terms set forth below.

A. Temporary Restraining Order

Each Defendant, its officers, directors, employees, agents,
subsidiaries, distributors, and all persons in active concert or
participation with any Defendant having notice of this order are hereby
restrained and enjoined until further order of this Court:
(a) From manufacturing, importing, advertising,
promoting, offering to sell, selling, distributing, or transferring any
products bearing or using one or more of the MCINC Marks, or any
confusingly similar trademarks, other than those actually
manufactured or distributed by MCINC; and
(b) From secreting, concealing, destroying, selling off,
transferring, or otherwise disposing of: (i) any products, not
manufactured or distributed by MCINC, bearing and/or using one
or more of the MCINC Marks, or any confusingly similar
trademarks; or (ii) any evidence relating to the manufacture,
importation, sale, offer for sale, distribution, or transfer of any
products bearing and/or using one or more of the MCINC Marks,
or any confusingly similar trademarks; or (iii) any assets or other
financial accounts subject to this order, including inventory assets,
in the actual or constructive possession of, or owned, controlled, or

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held by, or subject to access by, any Defendant, including, but not
limited to, any assets held by or on behalf of any Defendant;
(c) From copying, displaying, distributing, or creating
derivative works of MCINC’s Copyrighted Photographs; and
(d) From making, using, selling, importing and/or offering
to sell products that practice the MCINC Patents.
Each Defendant, its officers, directors, employees, agents,
subsidiaries, distributors, and all persons in active concert or
participation with any Defendant having notice of this order shall
immediately discontinue, until further order of this Court, the use of one
or more of the MCINC Marks, or any confusingly similar trademarks, the
Copyrighted Photographs, and the MCINC Patents, on or in connection
with all Internet based e-commerce stores owned and operated, or
controlled by them, including the Internet based e-commerce stores
operating under the Seller IDs. This order is limited to the Defendants’
listings using one or more of the MCINC Marks, or any confusingly
similar trademarks, the Copyrighted Photographs, and the MCINC
Patents, on or in connection with all Internet based e-commerce stores
owned and operated, or controlled by them, including the Internet based
e-commerce stores operating under the Seller IDs, and does not apply to
the Defendants’ entire e-commerce stores.
Each Defendant, its officers, directors, employees, agents,
subsidiaries, distributors, and all persons in active concert or
participation with any Defendant having notice of this order shall
immediately discontinue, until further order of this Court, the use of one
or more of the MCINC Marks, or any confusingly similar trademarks,
within domain name extensions, metatags or other markers within
website source code, from use on any webpage (including as the title of
any web page), from any advertising links to other websites, from search
engines’ databases or cache memory, and any other form of use of such
terms that are visible to a computer user or serves to direct computer
searches to Internet based e-commerce stores registered, owned, or
operated by any Defendant, including the Internet based e-commerce
stores operating under the Seller IDs.
Each Defendant shall not transfer ownership of the Seller
IDs during the pendency of this action, or until further order of the
Court.
Each Defendant shall continue to preserve copies of all
computer files relating to the use of any of the Seller IDs and shall take

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all steps necessary to retrieve computer files relating to the use of the
Seller IDs that may have been deleted before the entry of this order.
Upon receipt of notice of this order, the Defendants and all
financial institutions, payment processors, banks, escrow services,
money transmitters, or marketplace platforms, including but not limited
to, Alibaba.com Hong Kong Limited, which operates the AliExpress.com
platform (“AliExpress”), Zhejiang Ant Small and Micro Financial Services
Group Co., Ltd. (“Ant Financial Services”), AliPay (China) Internet
Technology Co. Ltd., Alipay.com Co., Ltd., and Alipay Singapore E-
Commerce Private Limited (collectively, “Alipay”), Amazon Payments, Inc.
(“Amazon”), Cloudflare.com (“Cloudflare”), Dunhuang Group which
operates the DHgate.com and DHPay.com platforms, Camel FinTech Inc,
ContextLogic, Inc., which operates the Wish.com website
(“ContextLogic”), PayPal, Inc. (“PayPal”), eBay, Inc. (“eBay”), Stripe, Inc.
and/or Stripe Payments Company (“Stripe”), Walmart.com (“Walmart”),
and their related companies and affiliates shall, to the extent not already
done, (i) immediately identify all financial accounts and/or sub-accounts,
associated with the Internet based e-commerce stores operating under
the Seller IDs, store numbers, infringing product numbers, and/or the e-
mail addresses identified on Schedule “A” to the Complaint, as well as
any other accounts of the same customer(s); (ii) identify all other
accounts which transfer funds into the same financial institution
account(s) or any of the other financial accounts subject to this order;
(iii) restrain the transfer of all funds, as opposed to ongoing account
activity, held or received for their benefit or to be transferred into their
respective financial accounts, and any other financial accounts tied
thereto; and (iv) immediately divert those restrained funds to a holding
account for the trust of the Court.
Upon receipt of notice of this order, the Defendants and all
financial institutions, payment processors, banks, escrow services,
money transmitters, or marketplace platforms receiving notice of this
order, including but not limited to, AliExpress, Ant Financial Services,
Alipay, Amazon, Cloudflare, Dunhuang Group which operates the
DHgate.com and DHpay.com platforms, Camel FinTech Inc,
ContextLogic, PayPal, eBay, Stripe, Walmart and their related companies
and affiliates, shall further, to the extent not already done, provide
MCINC’s counsel with all data that details: (i) an accounting of the total
funds restrained and identify the financial account(s) and sub-account(s)
which the restrained funds are related to; (ii) the account transactions
related to all funds transmitted into the financial account(s) and sub-

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account(s) which have been restrained; (iii) the historical sales for the
Defendants’ listings that are alleged to infringe MCINC’s trademarks,
copyrights and patents; and (iv) the true identities along with complete
contact information including email addresses of all Defendants.
No funds restrained by this order shall be transferred or
surrendered by any Defendant, financial institution, payment processor,
bank, escrow service, money transmitter, or marketplace website,
including but not limited to, AliExpress, Ant Financial Services, Alipay,
Amazon, Cloudflare, Dunhuang Group which operates the DHgate.com
and DHpay.com platforms, Camel FinTech Inc, ContextLogic, PayPal,
eBay, Stripe, Walmart, and their related companies and affiliates for any
purpose (other than pursuant to a chargeback made pursuant to their
security interest in the funds) without the express authorization of this
Court.
No Defendant whose funds are restrained by this order may
transfer said funds in possession of any financial institution, payment
processor, bank, escrow service, money transmitter, or marketplace
website, including but not limited to, AliExpress, Ant Financial Services,
Alipay, Amazon, Cloudflare, Dunhuang Group which operates the
DHgate.com and DHpay.com platforms, Camel FinTech Inc,
ContextLogic, PayPal, eBay, Stripe, Walmart, and their related companies
and affiliates restrained by this order to any other financial institution,
payment processor, bank, escrow service, money transmitter or
marketplace website without the express authorization of this Court.
Any Defendant or financial institution account holder
subject to this order may petition the Court to modify the asset restraint
set out in this order.
This order shall apply to the Seller IDs, associated e-
commerce stores and websites, and any other seller identification names,
e-commerce stores, websites, or financial accounts which are being used
by the Defendants for the purpose of counterfeiting the MCINC Marks
and/or unfairly competing with MCINC and/or copying the MCINC’s
Copyrighted Photographs and/or infringing the MCINC Patents.
This order shall remain in effect until the date for the
hearing on the motion for preliminary injunction set forth below, or until
such further dates as set by the Court or stipulated by the parties.

B. Bond to Be Posted
Pursuant to 15 U.S.C. § 1116(d)(5)(D), 17 U.S.C § 503 (a)(3)
and Federal Rule of Civil Procedure 65(c), MCINC shall post a bond in the

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amount of ten thousand dollars and zero cents ($10,000.00), as

payment of damages to which the Defendants may be entitled for a
wrongful injunction or restraint, during the pendency of this action, or
until further order of the Court, and in the Court’s discretion, the bond
may be subject to increase should an application be made in the interest
of justice.

C. Temporary Restraining Order Hearing

A hearing is set before this Court in the United States
Courthouse located at the Wilkie D. Ferguson, Jr. U.S. Courthouse, 400
North Miami Avenue, Miami, Florida, 33128, Courtroom 12-3, on
February 16, 2023, at 9:00 A.M., at which time the Defendants and/or
any other affected persons may challenge the appropriateness of this
order and move to dissolve the same and at which time the Court will
hear argument on MCINC’s requested preliminary injunction.
After MCINC’s counsel has received confirmation from the
financial institutions regarding the funds restrained as directed herein,
MCINC shall serve copies of the Complaint, Application, and this order,
on each Defendant by e-mail and/or online contact form or other means
of electronic contact provided on the e-commerce stores operating under
the Seller IDs, or by providing a copy of this order by e-mail to the
marketplace platform for each of the Seller IDs so that the marketplace
platform, in turn, notifies each Defendant of the order, or by other means
reasonably calculated to give notice which is permitted by the Court.
MCINC shall post copies of the Complaint, the Application,
this order, as well as all other documents filed in this action on the
website located at www.sriplaw.com/notice and shall provide the address
to the website to the Defendants via e-mail/online contact form, and
such notice so given shall be deemed good and sufficient service thereof.
MCINC shall continue to provide notice of these proceedings
and copies of the documents on file in this matter to the Defendants by
regularly updating the website located at www.sriplaw.com/notice, or by
other means reasonably calculated to give notice which is permitted by
the Court.
Additionally, for the purpose of providing additional notice of
this proceeding, and all other pleadings, orders, and documents filed
herein, the owners, operators and/or administrators of the Internet
marketplace websites and/or financial institutions, payment processors,
banks, escrow services, money transmitters, and marketplace platforms,
including but not limited to AliExpress, Alipay, Amazon.com, Inc.,

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Dunhuang Group which operates the DHgate.com and DHpay.com

platforms, ContextLogic, and their related companies and affiliates shall,
at MCINC’s request, provide MCINC’s counsel with any e-mail address
known to be associated with Defendants’ respective Seller IDs.
Defendants shall have five (5) business days to comply with
this temporary restraining order following notice.
Any response or opposition to MCINC’s motion for
preliminary injunction must be filed with the Court and served on
MCINC’s counsel by February 14, 2023.
The above dates may be revised upon stipulation by all
parties and approval of this Court.
Defendants are hereby on notice that failure to appear at
the hearing may result in the imposition of a preliminary injunction
against them pursuant to 15 U.S.C. § 1116(d), 17 U.S.C. § 502, 35
U.S.C. § 283, Federal Rule of Civil Procedure 65, The All Writs Act,
28 U.S.C. § 1651(a), and this Court’s inherent authority.

Done and ordered at Miami, Florida on February 7, 2023.

________________________________
Robert N. Scola, Jr.
United States District Judge

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