Zhou v. Schedule A - Motion For TRO

Case 1:22-cv-24013-RNS Document 13 Entered on FLSD Docket 12/21/2022 Page 1 of 18
UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 22-cv-24013-RNS
CHENMING ZHOU,
Plaintiff,
v.
THE INDIVIDUALS, PARTNERSHIPS AND

UNINCORPORATED ASSOCIATIONS IDENTIFIED
ON SCHEDULE “A”,
Defendants.
_________________________________________________/
PLAINTIFF’S, CHENMING ZHOU, SEALED EX PARTE MOTION FOR ENTRY OF

TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION,
AND ORDER RESTRAINING TRANSFER OF ASSETS
Plaintiff, CHENMING ZHOU, (hereinafter referred to as “Plaintiff”), by and through
undersigned counsel and pursuant to 35 U.S.C. §§ 283, 284 Fed. R. Civ. P. 65, and 28 U.S.C §§
1498 and 1651(a), respectfully moves on an Ex Parte basis for entry of temporary restraining order,
including preliminary injunction and an order restraining transfer of assets (“Motion for TRO”)
against Defendants, the Individuals, Partnerships, and Unincorporated Associations (collectively,
the “Defendants”) identified on Schedule “A”, attached hereto. In support thereof, Plaintiff
respectfully submits the following Memorandum of Law.
MEMORANDUM OF LAW
I. INTRODUCTION
Plaintiff is the owner of a United States Design Patent, No. US D 955,664S, for an
ornamental design of a pet center control seat (hereinafter “Plaintiff’s Patent” or “664 Patent”),
which Plaintiff uses for manufacturing, advertising, marketing, offering for sale and/or soliciting
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the sale of retail goods, specifically pet center control seats. Plaintiff has filed this patent
infringement lawsuit against Defendants, as e-commerce sellers that manufacture, distribute,
market, solicit, advertise, offer for sale and/or display content infringing on Plaintiff’s registered
patent through various e-commerce platforms, including but not limited to; Amazon, eBay,
Walmart and AliExpress. See Pl.’s Am. Compl., Schedule “A” (ECF No. 10). Every time
Defendants offer to sell and/or sell a product using Plaintiff’s Patent there is a direct loss, for which
monetary damages cannot adequately compensate because monetary damages fail to address the
loss of control over Plaintiff’s intellectual property and goodwill. See Declaration of Chenming
Zhou, December 12, 2022 at ¶¶ 12-13 (“Zhou Decl.”) (ECF No. 11), attached hereto.
The Patent Act allows Plaintiff to recover the total illegal profits gained through
Defendants’ manufacture, offer for sale and/or sales of infringing goods. See 35 U.S.C. § 289.
To preserve that disgorgement remedy, Plaintiff seeks an ex parte order restraining Defendants’
assets including funds specifically transmitted through all possible online marketplace payment
providers, including but not limited to AliExpress, Amazon, Amazon Pay, Alipay, Dhgate, Dhpay,
Joom, Paypal, Wish, Wishplay, Ebay and Taobao platforms (collectively referred to as “financial
entities”). Plaintiff seeks this remedy because as a result of Defendants flooding the e-commerce
marketplace with unauthorized reproductions and derivatives using Plaintiff’s Patent, it is highly
probable that Plaintiff will continue to suffer irreparable harm unless Defendants’ infringing
activity is stopped by this Court. See Zhou Decl. at ¶¶ 16-20 (ECF No. 11).
II. STATEMENT OF FACTS
A. Plaintiff’s Patent
Plaintiff owns one (1) United States Design Patent, No. US D 955,664S, for an ornamental
design of a pet center control seat (hereinafter “Plaintiff’s Patent” or “664 Patent”). Plaintiff’s
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Patent has been registered with the United States Patent and Trademark Office (“USPTO”) and
is protected from infringement under federal patent law. See Pl.’s Am. Compl. at Ex. No. 1 (ECF
No. 10-1). Plaintiff demonstrated he is the owner of the 664 Patent by submitting copies of the
U.S. Design Patent: 1) No. US D 955,664S, Date: June 21, 2022. See Pl.’s Am. Compl. at Ex. 1
(ECF No. 10-1); see also Zhou Decl. at ¶ 4 (ECF No. 11).
Plaintiff is the owner of all rights, title and interest to the 664 Patent, which has been
used in connection with the manufacturing, advertising, offer for sale and/or sale of Plaintiff’s
pet center control seats. Id. at ¶ 6 (ECF No. 11). Plaintiff advertises, offers for sale and sells the
pet center control seats depicted in the 664 Patent in authorized e-commerce stores such as
Amazon, among others. Id. (ECF No. 11). Plaintiff has expended time, money and other
resources developing, advertising and otherwise promoting the 664 Patent. Id. at ¶ 7 (ECF No.
11). Plaintiff suffers irreparable injury any time unauthorized sellers, such as Defendants, sell or
offer to sell goods using identical or substantially similar copies or derivatives of the 664 Patent.
Id. at ¶ 12 (ECF No. 8).
Furthermore, Plaintiff has expended a significant amount of resources in connection with
patent enforcement efforts, including legal fees and investigative fees to protect its Patent against
counterfeit actions. See Pl.’s Am. Compl. at Ex. No. 1 (ECF No. 10-1).
B. Defendants’ Patent Infringement
Without Plaintiff’s permission or license, Defendants are manufacturing, promoting,
selling, reproducing, offering for sale, and/or distributing goods using Plaintiff’s 664 Patent
within this District through various Internet based e-commerce stores and fully interactive
commercial Internet websites operating under their seller identification names (“Seller IDs”), as
set forth in Schedule A of the Amended Complaint. See Pl.’s Am. Compl. at Ex. No. 2 “Schedule
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A” (ECF No. 10-2); see also Zhou Decl. at ¶ ¶ 10 (ECF 11).
As part of its ongoing investigation regarding the sale of infringing products utilizing
Plaintiff’s 664 Patent, Defendants’ Internet based e-commerce stores were accessed under their
respective Seller IDs through the Amazon, eBay, AliExpress and Walmart platforms, as identified
on Schedule A. see Zhou Decl. at ¶¶ 10-11 (ECF No. 11). Web page captures and screenshots
were taken of the Defendants’ infringing products, as they appeared on Defendants’ online e-
commerce stores, and determined that products are being offered for sale using unauthorized
and infringing copies of the 664 Patent and orders were initiated via each Defendants’ Seller
IDs. see Zhou Decl. at ¶¶ 12-14 (ECF No. 11); see also Declaration of Humberto Rubio,
December 7, 2022 at ¶ 5 (“Rubio TRO Decl.”) (ECF No. 12), attached hereto and ECF No. 10.
In support of this Motion for TRO, Plaintiff has obtained and provided the court with evidence,
clearly demonstrating that Defendants are engaged in the advertising, offering for sale, and/or
sale of infringing versions of Plaintiff’s 664 Patent and that Defendants accomplish their sales of
infringing goods via the Internet through their e-commerce stores. see Zhou Decl. at ¶¶ 16-19
(ECF No. 11); see also Rubio TRO Decl. at ¶¶ 5 (ECF No. 12) and Schedule B (ECF No. 12 1-
9).
A simple comparison of Defendants’ infringing goods with Plaintiff’s 664 Patent and any
layman can observe Defendants’ blatant infringement of Plaintiff’s exclusive patent as the images
that depict the design are virtually exact duplicates or substantially similar images to Plaintiff’s
664 Patent. See Plaintiff’s 664 Patent (Pl.’s Am. Compl. at Ex. 1 (ECF No. 10-1) against
screenshots of Defendants’ products on their e-commerce stores. See Schedule B (ECF No. 12 1-
9), Rubio TRO Decl. at ¶ 5 (ECF No. 12) and Zhou Decl. at ¶¶ 12-14 (ECF No. 11).
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Defendants obtain their sales proceeds, from the e-commerce platforms, by using money
transfer, and/or retention processing services with PayPal, Inc., and/or having their sales
processed using an aggregate escrow account in order to receive monies from the sale of
infringing goods. see Rubio TRO Decl. at ¶¶ 7-9 (ECF No. 12). The escrow accounts on these e-
commerce platforms are held in various financial institutions, including AliExpress, Amazon,
Amazon Pay, Alipay, Dhgate, Dhpay, Joom, Wish, Paypal, Wishplay, Ebay and Taobao among
others. Id.
Consequently, Plaintiff is enduring continuous damages to its Patent at the hands of the
Defendants herein, who unlawfully reproduce goods using Plaintiff’s 664 Patent to sell for
substantial profits. In addition, the goodwill associated with Plaintiff’s 664 Patent is being
harmed and if Defendants’ willful and intentional infringing activities are not preliminarily and
permanently enjoined by this Court, Plaintiff and the consuming public will continue to be
harmed. See Zhou Decl. at ¶¶ 16-20 (ECF No. 11); see also Pl.’s Am. Compl. at ¶ 27 (ECF No.
10).
III. ARGUMENT
A. Temporary Restraining Order and Preliminary Injunction Standard
The Supreme Court held that in patent disputes, “the decision whether to grant or deny
injunctive relief rests within the equitable discretion of the district courts, and that such
discretion must be exercised consistent with traditional principles of equity” ebay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 394 (2006). Furthermore, the Patent Act, provides that
courts may grant injunctive relief on such terms as it may deem reasonable to prevent or restrain
infringement. Id. at 392 (quoting 35 U.S.C. § 283). The Patent Act also states that "patents shall
have the attributes of personal property," including "the right to exclude others from making,
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using, offering for sale, or selling the invention” Id. (quoting 35 U.S.C. § 261).
In a patent case, in order to obtain a preliminary injunction, a party must demonstrate;
(1) a substantial likelihood of the patentee’s success on the merits, (2) irreparable harm if the
injunction were not granted, (3) the balance of hardships between the parties, and (4) that
granting the injunction would not disserve the public interest. Pass & Seymour, Inc. v. Hubbell,
Inc., 532 F. Supp. 2d 418, 427 (N.D.N.Y. 2007); Suntrust Bank v. Houghton Mifflin Company,
268 F.3d 1257, 1265 (11th Cir. 2001); see also Levi Strauss & Co. v. Sunrise Int’l Trading Inc.,
51 F. 3d 982, 985 (11th Cir. 1995) (affirming entry of preliminary injunction and freezing of
assets relying on affidavits and hearsay materials).
Plaintiff is entitled to a preliminary injunction based on its patent infringement claim
because it can show all four factors. See Tinnus Enters., LLC v. Telebrands Corp., 846 F. 3d
1190, 1202 (Fed. Cir. 2017).
B. Likelihood of Success on the Merits
“Each issued patent carries with it a presumption of validity under 35 U.S.C. § 282.” Id. at
1205. Presumption of validity carried by each issued patent is sufficient to establish a likelihood
of success on the validity issue. Id. (quoting Titan Tire Corp. v. Case New Holland, Inc., 566 F.
3d 1372, 1377 (Fed. Cir. 2009). In this matter, Plaintiff demonstrated it is the owner of the 664
Patent registered with the USPTO: U.S. Design Patent No. US D 955,664S, Date: June 21, 2022.
See Pl.’s Am. Compl. at Ex. 1 (ECF No. 10-1); see also Zhou Decl. at ¶ 4 (ECF No. 11).
Design patent infringement requires a showing that the accused design is substantially the
same as the claimed design. The criterion is deception of the ordinary observer, such that one
design would be confused with the other. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F. 3d 665,
679 (Fed. Cir. 2008). Under this test, the central inquiry is whether an “ordinary observer,” who
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is familiar with the prior art, would find the overall appearance of the accused product to be
“substantially the same” as the overall appearance of the patented design. Id. at 677; see also
Amini Innovation Corp. v. Anthony Cal., Inc., 439 F .3d 1365, 1372 (Fed. Cir. 2006). An
infringing product need not be an exact copy of the patented design, and Defendants cannot
escape infringement by introducing minor variations into an otherwise copycat product.
Egyptian Goddess, 543 F. 3d at 670.
Design patents are typically claimed as shown in drawings, and claim construction must
be adapted to a pictorial setting. Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294, 1303 (Fed.
Cir. 2010); see also Contessa Food Prods., Inc. v. Conagra, Inc., 282 F. 3d 1370, 1377 (Fed.
Cir. 2002). In this case, no detailed verbal description of the figures in the 664 Patent is necessary
because each “illustration in the drawing views is its own best description.” Crocs, Inc. at 1303.
Accordingly, the claim of Plaintiff’s 664 patent should be construed only as an ornamental design
for a pet center control seat as shown in Plaintiff’s Patent See Pl.’s Am. Compl. at Ex. 1 (ECF No.
10-1).
In this matter, Plaintiff asserts a simple comparison of Defendants’ infringing goods,
which are being offered for sale and/or sold in the United States, with Plaintiff’s 664 Patent and
any “ordinary observer” can perceive Defendants’ blatant infringement of Plaintiff’s exclusive
patent as the designs are virtually duplicates or substantially similar design and images to
Plaintiff’s Patent. See ECF No. 10-1, against screenshots of Defendants’ products on their e-
commerce stores Schedule B (ECF No. 12 1-9), Rubio TRO Decl. at ¶ 5 (ECF No. 12) and Zhou
Decl. at ¶¶ 12-14 (ECF No. 11). In accordance with the Patent Act, the screenshot images
demonstrate Defendants’ ongoing unauthorized promotion, offer for sale and/or sale of goods
bearing Plaintiff’s 664 Patent in direct violation of Plaintiff’s federal rights to exclude others from
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making, using, offering for sale, or selling the 664 Patent. 35 U.S.C. §§ 217 & 261; see also
Tiffany (NJ), LLC v. Dongping, No. 10‐cv-61214, 2010 WL 4450451, (S.D. Fla. Oct. 29,
2010) (finding unopposed declarations supporting intellectual property ownership and exact
duplicates of asserted designs were sufficient to establish liability for infringement).
As the side-by-side comparison below reveals, Defendants have misappropriated
Plaintiff’s Patent ornamental design for a pet center control seat as shown in figure 1 through
4.1
Design Patent, No. US D 955,664S Infringing and Counterfeit Products
1Due to the number of Defendants, Plaintiff is enclosing a representative sample. However,

Schedule “B” contains representative samples of all the counterfeit products.
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As shown above, Defendants’ pet center seats are the same or substantially the same as
the design of the 664 Patent. According to the test prescribed by Egyptian Goddess, Defendants’
infringing, and counterfeit product infringes the 664 Patent.
C. Plaintiff is Suffering Irreparable Injury
A patent holder possesses “the right to exclude others from using his property.” ebay Inc.,
547 U.S. at 392. (citing Fox Film Corp.v. Doyal, 286 U.S. 123 (1932)). Defendants’ infringing
conduct deprives Plaintiff of control over its 664 Patent and of its exclusive patent rights causing
irreparable harm. S e e eBay, Inc. at 395 (holding violation of patent owner’s “right to exclude”
renders monetary remedies inadequate in a wide range of circumstances).
It is well-settled that, because the principal value of a patent is its statutory right to
exclude, the nature of the patent grant weighs against holding that monetary damages will always
suffice to make the patentee whole. Hybritech Inc. v. Abbott Laboratories, 849 F. 2d 1446, 1456
(Fed. Cir. 1988). The patent statute provides injunctive relief to preserve the legal interests of
the parties against future infringement which may have market effects never fully compensable
in money. Id. at 1457.
In this matter, Defendants have blatantly copied Plaintiff’s work and have a total disregard
for Plaintiff’s right to exclude them from using his 664 Patent causing irreparable harm to his
efforts to advertise, market, offer for sale and sell his work. Zhou Decl. at ¶¶ 8,9 (ECF No. 11).
Every time Defendants offer to sell and/or sell a product using Plaintiff’s 664 Patent there is a
direct loss for which monetary damages cannot adequately compensate for because they fail to
address the loss of control over Plaintiff’s intellectual property and goodwill. Zhou Decl. at ¶¶
16-20 (ECF No. 11). Loss of quality control over goods sold utilizing Plaintiff’s 664 Patent is
neither calculable nor precisely compensable because by Defendants flooding the e-commerce
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marketplace with unauthorized reproductions and derivatives of the 664 Patent, it is highly
probable that Plaintiff will continue to suffer irreparable harm unless Defendants’ infringing
activity is stopped. Zhou Decl. at ¶¶ 16-20 (ECF No. 11).
“[L]oss in market share” can itself constitute irreparable harm. Robert Bosch LLC v.
Pylon Mfg. Co., 659 F.3d 1142, 1151 (Fed. Cir. 2001). A court “commit[s] a clear error of
judgment” when it fails to find irreparable harm in the face of “evidence of . . . the parties’ direct
competition” and “loss in market share and access to potential customers resulting from [the
defendant's] introduction of infringing” products. Id.; see also Novartis Consumer Health, Inc.
v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 596 (3d. Cir. 2002) (“In a
competitive industry where consumers are brand-loyal, we believe that loss of market share is
a potential harm which cannot be redressed by a legal or an equitable remedy following a trial.”)
(internal quotation marks and citations omitted).
D. The Balance of Hardship Tips Sharply in Plaintiff’s Favor
For the third factor in determining whether to issue a preliminary injunction, the Court
must balance the harm to the movant from the denial of the preliminary injunction with the harm
that the non-movant will incur if the injunction is granted. Hybritech, 849 F.2d at 1457. The
balance of the hardships in this case favors Plaintiff. A patent holder who is denied an injunction
suffers serious delay in the exercise of the limited-in-time right to exclude, which constitutes a
severe hardship. See Illinois Tool Works, Inc. v. Grip-Pak, Inc., 906 F. 2d 679, 683 (Fed. Cir.
1990). This harm is amplified by the fact that Defendants are infringing a design patent, where
the term of the patent is only 15 years. See 35 U.S.C. § 173. Plaintiff suffers a commercial
disadvantage and harm to its product perception and reputation. Conversely, a preliminary
injunction will only minimally harm Defendants and will not prevent them from selling their non-
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infringing products or from marketing non- infringing products. Defendants are also free to sell
other goods that do not infringe the 664 Patent.
Because Defendants are engaged in infringement activities, the only hardship they will
suffer as a result of an injunction is court-ordered compliance with intellectual property laws.
Adobe Systems, Inc. v. Brenengen, 928 F. Supp. 616, 618 (E.D.N.C. 1996). In other cases, the
Courts have ruled that the evidence of irreparable harm to plaintiff far outweighs the harm that a
preliminary injunction may cause Defendant. CB Fleet Co., Inc. v. Unico Holdings, Inc., 510 F.
Supp. 2d 1078, 1083 (S.D. Fla. 2007) (holding a company cannot build a business on
infringements and then argue that enforcing the law will cripple that business) CBS, Inc. v.
PrimeTime 24 Joint Venture, 9 F. Supp. 2d 1333 (S.D. Fla.1998)).
Presently, Defendants are promoting advertising, offering for sale and/or selling goods
using Plaintiff’s 664 Patent, through their e-commerce stores. Zhou Decl. at ¶11 (ECF No. 11).
Based on Defendants’ e-commerce stores, there is good cause to suspect Defendants are all
residing and/or operating outside of the United States and/or redistribute products from sources
outside of the Unites States. Rubio TRO Decl. at ¶9 (ECF No. 12). Due to the e-commerce
nature, Defendants can easily transfer, conceal and dissipate assets or modify e-commerce data
within minutes after obtaining notice of this action leaving Plaintiff with irreparable injury and
the Court with limited ability to grant relief. Rubio TRO Decl. at ¶13 (ECF No. 11).
Allowing infringement during the pendency of this lawsuit effectively grants the
infringer a license for the pendency of this litigation and encourages others to infringe as well.
Hybritech, 849 F.2d at 1456 (affirming finding of irreparable harm where, inter alia, absent
injunction “other potential infringers will be encouraged to infringe”). Irreparable harm results
when other infringement is encouraged because of the absence of an injunction. Id.
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In contrast, the entry of a temporary restraining order would serve to immediately stop
Defendants from benefiting from the wrongful sale of goods using Plaintiff’s Patent and
preserve the status quo until such time as a hearing can be held. See Dell Inc. v. Belgium
Domains, LLC, Case No. 07-22674 2007 WL 6862341 (S.D. Fla. Nov. 21, 2007) (finding ex
parte relief more compelling where Defendants’ scheme “is in electronic form and subject to
quick, easy, untraceable destruction by Defendants.”)
Defendants’ infringing activity is conducted without Plaintiff’s express assignment,
authorization or licensing of his 664 Patent. Zhou Decl. at ¶¶15,19 (ECF No. 11). Consequently,
Defendants will suffer no legitimate hardship in the event a temporary restraining order is issued
because Defendants have no right to engage in their present infringement activities.
E. The Relief Sought Serves the Public Interest
The public interest clearly favors maintaining the integrity of the intellectual property
laws. Belushi, 598 F. Supp. at 37.; see also C.B. Fleet Co. 510 F. Supp. at 1084 (S.D. Fla. 2007)
(The public interest can only be served by upholding intellectual property protection and
preventing the misappropriation of protected works.)
“[P]ublic policy favors protection of the rights secured by valid patents.” Smith Int’l, Inc.
v. Hughes Tool Co., 718 F.2d 1573, 1581 (Fed. Cir. 1983). “[P]rotection of patents furthers a
strong public policy [that is] advanced by granting preliminary injunctive relief when it appears
that, absent such relief, patent rights will be flagrantly violated.” H.H. Robertson, Co. v. United
Steel Deck, Inc., 820 F.2d 384, 391 (Fed. Cir. 1987) (internal quotation marks and citation
omitted). Indeed, “[w]ithout the right to obtain an injunction, the right to exclude granted to the
patentee would have only a fraction of the value it was intended to have, and would no longer
be as great an incentive to engage in the toils of . . . research.” Smith Int’l, Inc., 718 F.2d at 1578.
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Protecting Plaintiff’s 664 Patent is consistent with promoting the public interest. Salinger,
607 F.3d at 82; see also CBS Broad., Inc. v. EchoStar Comm’ns. Corp., 265 F.3d 1193, 1198
(11th Cir. 2001). Similarly in this matter, the public needs to be protected from being defrauded
and buying Defendants’ infringing goods.
IV. THE EQUITABLE RELIEF SOUGHT IS APPROPRIATE
A. Ex Parte Temporary Restraining Order is Appropriate
A court may only issue a temporary restraining order without notice to the adverse party
or its attorney if: (a) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition and (b) the movant’s attorney certifies in writing any efforts
made to give notice and the reasons why it should not be required. Fed. R. Civ. P. 65 (b)(1). Ex
parte temporary restraining orders “should be restricted to serving their underlying purpose of
preserving the status quo and preventing irreparable harm just so long as is necessary to hold a
hearing, and no longer.” Granny Goose Foods, Inc. v. Brh. of Teamsters & Auto Truck Drivers
Loc. No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974). A delay in seeking the preliminary
injunction militates against a finding of irreparable harm. Wreal, LLC v. Amazon.com, Inc., 840
F.3d 1244, 1248 (11th Cir. 2016).
Defendants, through their e-commerce stores, promote, advertise, offer for sale and/or sell
products that infringe on Plaintiff’s 664 Patent. See Zhou Decl. at ¶10 (ECF No. 11). The entry
of a temporary restraining order would serve to immediately stop Defendants from benefiting
from their unauthorized use of Plaintiff’s 664 Patent and preserve the status quo until such time
as a hearing can be held. Dell Inc. v. Belgium Domains, LLC, Case No. 07-22674, 2007 WL
6862341 (S.D. Fla. Nov. 21, 2007) (finding ex parte relief more compelling where Defendants’
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scheme “is in electronic form and subject to quick, easy, untraceable destruction by
Defendants.”).
Absent a temporary restraining order, without notice, Defendants can and will significantly
alter the status quo before the Court can determine the parties’ respective rights. Rubio TRO Decl.
at ¶13 (ECF No. 12). Significantly, because Defendants have complete control of their e-
commerce stores, at issue and if notice of this action is given Defendants can easily modify the
ownership of the e-commerce store, data, content, payment accounts, redirect consumers to other
seller identification names, and transfer assets to other seller identification numbers. No notice
has been provided to Defendant. Rubio TRO Decl. at ¶¶12-14 (ECF No. 12).
As a result, this Court should prevent an injustice from occurring by issuing an ex parte
temporary restraining order which precludes Defendants from displaying their infringing goods
via their e-commerce stores and websites or modifying or deleting any related content or data.
Only such an order will prevent ongoing irreparable harm to Plaintiff and maintain the status quo.
B. Entry of an Order Prohibiting Transfer of the Seller IDs During the

Pendency of This Action Is Appropriate
Plaintiff seeks an order temporarily prohibiting Defendants from transferring use or
control of the Seller IDs being used and controlled by Defendants to other parties in order to
preserve the status quo. Once they become aware of this lawsuit, Defendants can easily, and often
will, change the ownership or modify their e-commerce store account, data and content, change
payment accounts, redirect consumer traffic to other seller identification names, and transfer
assets and ownership of the Seller IDs, and thereby frustrate the Court’s ability to grant
meaningful relief. See Rubio TRO Decl. at ¶¶ 12-13 (ECF No. 12). As a result, Plaintiff seeks a
temporary order prohibiting Defendants from transferring their e-commerce stores and domain
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names operating under the Seller IDs poses no burden on them, preserves the status quo, and
ensures that this Court, after fully hearing the merits of this action, will be able to afford Plaintiff
meaningful relief in accordance with the Patent Act.
C. An Ex Parte Order Restraining Transfer of Assets Is Appropriate
In furtherance of an order temporarily restraining Defendants’ offer for sale and/or sale of
Plaintiff’s 664 Patent, Plaintiff requests this Court also enter an Order limiting the transfer of
Defendants’ unlawfully gained assets. Plaintiff has demonstrated above that it will likely succeed
on the merits of its claims. Therefore and in accordance with the Patent Act, Plaintiff will be
entitled to the payment of reasonable royalties and lost profits to Defendants throughout the
course of their infringing scheme. 35 U.S.C. § 284.
Defendants, through their e-commerce stores, have deliberately infringed on the
protections afforded to Plaintiff by federal patent laws. Plaintiff respectfully requests this Court
grant additional ex parte relief identifying payment accounts and restraining the transfer of all
monies held or received by financial institutions for the benefit of any one or more of the
Defendants, and any other financial accounts tied thereto. SEC v. ETS Payphones, 408 F. 3d 727,
734 (11th Cir. 2005) (finding it proper to enjoin all of the defendant’s assets, because it was
necessary to preserve sufficient funds for the potential disgorgement in the case).
Many circuit courts, including the Eleventh Circuit, have upheld the court’s authority to
restrain assets. Levi Strauss & Co. 51 f. 3d at 987-988 (upholding the asset freeze in the case
because it allowed appellants to petition the district court to modify the freeze). In Levi Strauss,
the Eleventh Circuit upheld an order granting an asset restraint against an alleged counterfeiter
where the complaint included a request for a permanent injunction and the equitable remedy of
disgorgement of the alleged counterfeiter’s profits under Id. at 987. This Court has held that it
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may issue broad asset restraints to preserve the availability of permanent relief, including assets
that are not directly traceable to the fraudulent activity that serves as a basis for the equitable
relief requested. S.E.C. v. Lauer, 445 F. Supp. 2d 1362, 1364 (S.D. Fla. 2006) (upholding
temporary freeze of all of defendant’s assets in order to maintain the status quo).
In this case, Defendants’ blatant violations of federal patent laws warrant an ex parte order
restraining the transfer of their ill-gotten assets. Moreover, as Defendants’ businesses are
conducted anonymously over the Internet, Plaintiff has an additional cause for ex parte relief, as
Defendants may easily transfer their assets without the Court’s or Plaintiff’s knowledge.
V. A Bond Should Secure the Injunction
No restraining order or preliminary injunction shall issue except upon the giving of
security by the applicant, in such sum as the court deems proper, for the payment of such costs
and damages as may be incurred or suffered by any party who is found to have been wrongfully
enjoined or restrained. Fed. R. Civ. P. 65 (c). The amount of the bond is left to the discretion of
the court. Carillon Importers, Ltd. v. Frank Pesce Int'l Grp. Ltd., 112 F. 3d 1125, 1127 (11th Cir.
1997). In light of Plaintiff’s evidence of infringement, Plaintiff respectfully requests this Court
require it to post a bond of no more than Ten Thousand Dollars ($10,000.00).
VI. CONCLUSION
Plaintiff is enduring continuous damages to its 664 Patent at the hands of the Defendants
in this matter, who unlawfully reproduce goods using Plaintiff’s 664 Patent to sell for substantial
profits. Defendants are damaging the goodwill associated with Plaintiff’s 664 Patent and
harming, tricking and confusing the public. As a result, Plaintiff respectfully seeks the granting,
under seal, of this Motion for TRO and enter the Order as to Defendants in the form submitted
herewith.
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Respectfully submitted on this 21st day of December, 2022.
LAW FIRM OF RUBIO & ASSOCIATES, P.A.

Attorneys for Plaintiffs
8950 SW 74 Ct., Suite 1804
Miami, Fl 33156
Telephone: (786) 220-2061
Facsimile: (786) 220-2062
Email: hrubio@rubiolegal.com
Email: apuentes@rubiolegal.cm
Email: frubio@rubiolegal.com
Email: info@rubiolegal.com
By:/s/ Humberto Rubio

Humberto Rubio, Jr., Esq.
Florida Bar No. 36433
Felipe Rubio, Esq.
M. Arabella Puentes, Esq.
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Case 1:22-cv-24013-RNS Document 13-1 Entered on FLSD Docket 12/21/2022 Page 1 of 5
Schedule A
Def. No. Platform Defendant Seller Store URL

1 Amazon GearKing https://www.amazon.com/sp?ie=UTF8&seller=A248I4UNX26UQM
2 Amazon Emojito https://www.amazon.com/sp?ie=UTF8&seller=A1FJKKZ1BL38CE
3 Amazon XTSFDC https://www.amazon.com/sp?ie=UTF8&seller=ARCS9R4OA1ZN8
4 Amazon WOOFEELL US https://www.amazon.com/sp?ie=UTF8&seller=A2CDPFEI5IRQIS
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283 Amazon Carperipher https://www.amazon.com/sp?ie=UTF8&seller=A3FC3PYSS37YWH
284 Amazon Chengtuo Direct https://www.amazon.com/sp?ie=UTF8&seller=A36XDRGH7ELZ2S
285 Amazon Nibesser Direct https://www.amazon.com/sp?ie=UTF8&seller=A2EA49LODX8OE4
286 Amazon Nantong Topco Trading Co., Ltd. https://www.amazon.com/sp?ie=UTF8&seller=A2ME1NYYTW8MAT
287 Amazon MOKIMA https://www.amazon.com/sp?ie=UTF8&seller=A3U4835CCAUO2P
288 Aliexpress PetsClub Store https://www.aliexpress.com/store/1101804934
289 Amazon lucosiu https://www.amazon.com/sp?ie=UTF8&seller=A3OHPLNXH5HUDO
290 Amazon LiuFJJMY https://www.amazon.com/sp?ie=UTF8&seller=A38IUFCGZPCAT5
291 Amazon Gowgelit https://www.amazon.com/sp?ie=UTF8&seller=A2GOXBGQ8O8V4

292 Amazon guixiulindianzi https://www.amazon.com/sp?ie=UTF8&seller=A24ZPQN38SH98L
293 Amazon Hakimroom https://www.amazon.com/sp?ie=UTF8&seller=A3M5MCJ62DF0KE
294 Amazon Healnat https://www.amazon.com/sp?ie=UTF8&seller=A1RQALXY8VSF4N
295 Amazon INKUISI https://www.amazon.com/sp?ie=UTF8&seller=A1YWOEYPDKNLA6
296 Amazon Lingqi US https://www.amazon.com/sp?ie=UTF8&seller=ACSODMU1P0WC4
297 Amazon JINLITECH https://www.amazon.com/sp?ie=UTF8&seller=A255BHGPEDUYR6
298 Amazon Rocita Home https://www.amazon.com/sp?ie=UTF8&seller=A3IZ3Q8N7J07P3
299 Amazon KKRDH https://www.amazon.com/sp?ie=UTF8&seller=A3THCY5W4QNV3M
300 Amazon Kondyfayo Design https://www.amazon.com/sp?ie=UTF8&seller=A4XX31ILZ7GRW
301 Aliexpress Expectation https://www.aliexpress.com/store/1100905503
302 Aliexpress Exquisite Decor Store https://www.aliexpress.com/store/1101567916
303 Aliexpress Falala Pets Life Store https://www.aliexpress.com/store/1101330828
304 Aliexpress FisPet Store https://www.aliexpress.com/store/1101986732
305 Aliexpress Friend of mankind Store https://www.aliexpress.com/store/1101759622
306 Aliexpress Funny Gifts Store https://www.aliexpress.com/store/1101171674
307 Aliexpress HANTAJANSS Store https://www.aliexpress.com/store/1101418842
308 Aliexpress Helen Pet Life Pavilion Store https://www.aliexpress.com/store/1102196416
309 Aliexpress HomeDecorLover Store https://www.aliexpress.com/store/1101194612
310 Aliexpress Homeware Center Store https://www.aliexpress.com/store/1101276351
311 Aliexpress Homyl 242 Store https://www.aliexpress.com/store/1101622409
312 Aliexpress HOOPET https://hoopetstore.aliexpress.com/store/1101022974
313 Aliexpress House for Pets Store https://www.aliexpress.com/store/1101222434
314 Aliexpress HouseDaily Store https://www.aliexpress.com/store/1101613940
315 Aliexpress Huanle life Store https://www.aliexpress.com/store/1101356695
316 Aliexpress inspaws Official Store https://inspaws.aliexpress.com/store/1101500869
317 Amazon Kangfeile PetSupplies Store https://www.aliexpress.com/store/1101628480
318 Aliexpress KAT GorgeousHome Store https://www.aliexpress.com/store/1101537938
319 Aliexpress KOSIMIA GAMIA Store https://www.aliexpress.com/store/1101816575
320 Aliexpress Leading life Appliance Supplier Store Store https://www.aliexpress.com/store/1101269492
321 Aliexpress Lighting Global Store https://www.aliexpress.com/store/1101288936
322 Aliexpress Lingling Adornment Store https://www.aliexpress.com/store/1101817628
323 Aliexpress LINKMENOW Store https://www.aliexpress.com/store/1101951660
324 Aliexpress luckpet Store https://www.aliexpress.com/store/1101404219
325 Aliexpress Market Store https://www.aliexpress.com/store/1101425360
326 Aliexpress Meritorious Store https://www.aliexpress.com/store/1101714751
327 Aliexpress Mr. Coffey Store https://www.aliexpress.com/store/1101364338
328 Aliexpress Ordernow Store https://www.aliexpress.com/store/1100682529
329 Aliexpress PATYOCAT Official Store https://www.aliexpress.com/store/1101513243
330 Aliexpress Pet Love it https://www.aliexpress.com/store/1100973106
331 Aliexpress Pet supplies grocery store Store https://www.aliexpress.com/store/1101985034
332 Aliexpress Petata Store https://www.aliexpress.com/store/1101931793
333 Aliexpress Pet-household Store https://www.aliexpress.com/store/1101832027
334 Aliexpress PetLifeWell Store https://www.aliexpress.com/store/1101581788
335 Aliexpress PetLoveMe Store https://www.aliexpress.com/store/1101732956
336 Aliexpress PetNewLife Store https://www.aliexpress.com/store/1101540844
337 Aliexpress Pets' little planet Store https://www.aliexpress.com/store/1101880594

MIAMI DIVISION
CASE NO.22-cv-24013-RNS
CHENMING ZHOU,
Plaintiff,
v.

Defendants.
_________________________________________________/
DECLARATION OF CHENMING ZHOU IN SUPPORT OF PLAINTIFF'S EX PARTE

MOTION FOR ENTRY OF TEMPORARY RESTRAINING ORDER, PRELIMINARY
INJUNCTION, AND ORDER RESTRAINING TRANSFER OF ASSETS
I, Chenming Zhou, declare and state as follows:
1. I am over 18 years of age, I am a citizen of China and I have personal
knowledge of the facts set forth herein.
2. I make this declaration in support of Plaintiff’s Ex Parte Motion for Entry of
Temporary Restraining Order, Preliminary Injunction, and Order Restraining Transfer of
Assets (the "Motion for TRO").
3. If called upon to do so, I could and would competently testify to the following
facts set forth below.
Chenming Zhou’s Patent Rights
4. On June 21, 2022, I registered with the United States Patent and Trademark
1
Office one (1) ornamental design patent of a pet center control seat with Registration No. US
D955,664S and date of patent of June 21, 2022 (referred to as “664 Patent”). A true and
correct copy my federal patent registration along with the accompanying images is attached to
the Complaint as Exhibit 1.
5. I am the owner of all rights, title and interest to the 664 Patent, which I created
in the year 2020 and which I have used in connection with the sale of pet center control seat.
6. I use the ornamental design of the 664 Patent in connection with the
manufacturing, advertising, marketing, offer for sale and/or sale of retail items, in authorized
e-commerce stores such as Amazon.
7. I have expended time, money and other resources developing, advertising and
otherwise promoting the 664 Patent.
8. I suffer irreparable injury any time unauthorized sellers, such as Defendants,
sell or offer to sell goods using identical or substantially similar copies or derivatives
incorporating and infringing the 664 Patent.
9. The harm caused by Defendants is both a monetary loss and a damage to the
goodwill of the 664 Patent.
Defendants’ Infringement
10. I discovered Defendants were manufacturing, promoting, advertising, offering
for sale and/or selling goods using the 664 Patent, without authorization, through e-commerce
stores operating under the seller identities named in Schedule A attached to the Complaint as
an Exhibit.
11. I conducted a search which has established that Defendants are using various
storefronts including but not limited to; Amazon, eBay and other ecommerce platforms, to sell
2
and offer to sell products to consumers in the United States and the State of Florida, including
the Southern District of Florida, utilizing my 664 Patent without authorization.
12. Prior to filing this lawsuit, I or someone under my direction and supervision
personally accessed Defendants’ Internet based e-commerce stores operating under their
respective seller identifications through the Amazon, eBay and other ecommerce platforms, as
identified on Schedule A (hereinafter “Seller IDs”), attached to the Complaint as an Exhibit.
13. Upon accessing each of the e-commerce stores, either I or someone under my
direction and supervision was able to view advertisements for products utilizing my 664
Patent, add products to the online shopping cart, and proceed to a point of checkout, for each
of Defendants’ e-commerce store. Web page captures and screenshots were taken of the
infringing products and orders were initiated via each Defendants’ Seller IDs.
14. Prior to filing this lawsuit, I or someone under my direction and supervision
analyzed each of the screenshots and photographs of the products shown, as they appeared on
Defendants’ online e-commerce stores, and determined that products are being offered for sale
to residents of the United States and the State of Florida using unauthorized and infringing
copies of the 664 Patent.
15. I have not assigned, licensed or authorized any of the Defendants to use my 664
Patent.
Irreparable Injury
16. Every time Defendants offer to sell and/or sell a product using my 664 Patent
there is a direct loss to me.
17. Monetary damages cannot adequately compensate for Defendants’ ongoing
3
infringement becau e monetary damagcs fail to addrcss the loss ofcontrol over my intellectual
property and goodwill.
18. The ability of Defendanls to manufacture, reproduce, modify, distribute and/or
di play unauthorized copies of the 664 Patent for their own commercial benefit without
compensation to me impairs the market value of the 664 Patent since others competing with
Defendants' businesses, or in related business areas, will not want to obtain a license to my 064
Patent if it is already associated with a competing business. In addition, potential Iicensees of
my 664 Patent will not want to pay license fees ifthey see other commercial enterprises taking
and using my design patent for their own commercial purposes without paying any fee at all.
19. Loss of quality control over goods sold utilizing my 664 Patent without my
authorization is neither calculable nor precisely compensable.
20. As a result of Defendants flooding the e-cornrnerce marketplace , ith
unauthorized reproductions and derivatives of rny 664 Patent, it is highly probable that I will
continue to suffer irreparable harrn unless Defendants' infringing activity is stopped.
1 declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on this __
12 day of Decernber, 2022.
Chcnming Zhou
4

MIAMI DIVISION
CHENMING ZHOU,
Plaintiff,
v.

Defendants.
_________________________________________________/
SEALED DECLARATION OF HUMBERTO RUBIO IN SUPPORT OF PLAINTIFF’S

EX PARTE MOTION FOR ENTRY OF TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION, AND ORDER RESTRAINING TRANSFER OF ASSETS
I, Humberto Rubio, declare and state as follows:
1. I am over 18 years of age and I have personal knowledge of the facts set forth
herein.
2. I am counsel of record for Plaintiff, Chenming Zhou (“Plaintiff” / “Mr. Zhou”) and
I make this declaration in support of Plaintiff’s Ex Parte Motion for Entry of Temporary
Restraining Order, Preliminary Injunction, and Order Restraining Transfer of Assets (“Motion for
TRO”). If called upon to do so, I could and would competently testify to the following facts set
forth below.
3. The individuals, partnerships, and unincorporated associations (“Defendants”)
identified on Schedule “A” of the Complaint conduct their e-commerce business through
AliExpress, Amazon, ebay and Walmart among other e-commerce platforms.
1
4. Based upon the data and information collected and provided in connection with
this action, Defendants’ Internet based e-commerce stores currently ship infringing goods using
unauthorized copies into the United States, including the Southern District of Florida.
5. Defendants are promoting, advertising, distributing, selling and/or offering for sale,
through Seller IDs provided by the e-commerce stores, goods using counterfeit and infringing
patents and unauthorized reproductions without authorization. Attached hereto as Schedule “B”1
are representative web page captures and order samples from Defendants’ Internet based e-
commerce stores operating under the Seller IDs.
6. Defendants have structured their e-commerce store businesses so that the means for
customers to purchase Defendants’ infringing goods, at issue, is by placing an order electronically.
Defendants receive and confirm orders online and rely on electronic means to receive payment.
7. Defendants obtain their sales proceeds, from the e-commerce platforms, by using
money transfer, and/or retention processing services with PayPal, Inc., and/or having their sales
processed using an aggregate escrow account in order to receive monies from the sale of infringing
goods.
8. The escrow accounts on these e-commerce platforms are held in various financial
institutions, including AliExpress, Amazon, Amazon Pay, Alipay, Dhgate, Dhpay, Joom, Wish,
Wishplay, Ebay and Taobao among others.
9. Most of the time, Defendants must provide an email address and physical address
to the third-party platforms through which Defendants operate (such as AliExpress, Amazon, ebay
and Walmart), however, few Defendants purport to provide any type of a physical address to these
1
Schedule B consists of web captures and samples of each of the Defendant’s patent infringement. This
Schedule B has been organized per Defendant for convenience and presentation purposes. A ‘raw’ version is also
available if need be.
2
third-party platforms much less a valid, accurate, and verifiable physical address. Also, many of
the Defendants appear to reside in China, neighboring states (and other foreign jurisdictions) and
some use Chinese characters for their names and addresses. Store operator can input any physical
address so that it is not verifiable and typically false and or inaccurate. Even where a physical
address is known, it is not a reliable way to locate and or identifying Defendants.
10. There are reports that confirm the unreliability of and uncertainty of physical
addresses. A January 2020 publication on counterfeiting by the Department of Homeland Security
cites a “lack of relevant policies and procedures to verify sellers’ true names and addresses” by third
party platforms, which “contributes to a range of impediments to effective enforcement.”
11. Based upon the data and information collected and provided in connection with
Defendants’ Internet based e- commerce stores, including the shipping information and payment
data provided in connection with Defendants’ Seller IDs, Plaintiff has good cause to suspect
Defendants are all residing and/or operating outside of the United States and/or redistribute
products from sources outside of the Unites States.
12. Defendants have complete control of their e-commerce stores, at issue. If notice of
this action and or this proceeding, Defendants can modify the ownership of the e-commerce store,
data, content, payment accounts, redirect consumers to other seller identification names, and
transfer assets to other seller identification numbers.
13. Absent the granting of Plaintiff’s Motion for TRO, without notice, Defendants can
and will likely alter the status quo before the Court can determine the parties’ respective rights.
Particularly because Defendants can transfer, conceal and dissipate assets or modify e-commerce
data within minutes after obtaining notice of this action. Such result would also frustrate the
Court’s ability to grant meaningful relief.
3
14. Undersigned counsel has not yet provided notice of the present action to
Defendants.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on this 20th day of December, 2022.
/s/ Humberto Rubio

Humberto Rubio, Jr., Esq.
4

MIAMI DIVISION
CHENMING ZHOU,
Plaintiff,
v.

Defendants.
_________________________________________________/
[proposed] SEALED ORDER GRANTING EX PARTE MOTION FOR ENTRY OF

TEMPORARY RESTRAINING ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Ex-Parte Motion for Entry of
Temporary Restraining Order, Preliminary Injunction, and Order Restraining Transfer of Assets
(“Motion for TRO”) (ECF No. 13). The Plaintiff, Chenmigg Zhou (“Plaintiff”) moves, ex parte,
for entry of a temporary restraining order against the Defendants, Individuals, Partnerships, and
Unincorporated Associations Identified on Schedule “A” to the Amended Complaint (collectively
“Defendants”), and an order restraining the financial accounts used by Defendants pursuant to 35
U.S.C. § 283, Federal Rule of Civil Procedure 65, and The All Writs Act, 28 U.S.C. § 1651(a).
The Court has reviewed the Motion for TRO and is otherwise duly advised and for the
reasons stated herein, said motion is GRANTED.
1. Background
On December 12, 2022, Plaintiff Chenming Zhou (“Plaintiff”) filed the present action for
patent infringement alleging that Defendants, through e-commerce stores, are advertising,
1
promoting, marketing, offering for sale, displaying and soliciting for sale, using Plaintiff’s
federally registered patent or a substantially similar reflection thereof, in violation of federal
patent law. (ECF No. 1, 10).
Plaintiff owns one (1) United States Design Patent, No. US D 955,664S, for an ornamental
design of a pet center control seat (hereinafter “Plaintiff’s Patent” or “664 Patent”). Plaintiff’s
Patent has been registered with the United States Patent and Trademark Office (“USPTO”) and
is protected from infringement under federal patent law. See Pl.’s Am. Compl. at Ex. No. 1-1
(ECF No. 10-1). Plaintiff demonstrated he is the owner of the 664 Patent by submitting copies
of the U.S. patent registration: 1) United States Design Patent, No. US D 955,664S. See Pl.’s Am.
Compl. at Ex. 1-1 (ECF No. 10-1); see also Chenming Zhou, December 12, 2022 at ¶¶ 4,5 (“Zhou
Decl.”) (ECF No. 11)
Plaintiff is the owner of all rights, title and interest to the 664 Patent, which Plaintiff
advertises, offers for sale and sells the 664 Patent in authorized e-commerce stores such as
Amazon, among others. Id. at ¶ 6 (ECF No. 11). Plaintiff has expended time, money and other
resources developing, advertising and otherwise promoting the 664 Patent. Id. at ¶ 7 (ECF No.
11). The 664 Patent has independent economic value and has generated revenue in relation to
the retail items offered for sale in the authorized e-commerce stores. Id. at ¶ 6 (ECF No. 11).
Plaintiff suffers irreparable injury any time unauthorized sellers, such as Defendants, sell or offer
to sell goods using identical or substantially similar copies or derivatives of the 664 Patent. Id. at
¶ 8 (ECF No. 11).
Without Plaintiff’s permission or license, Defendants are promoting, selling, reproducing,
offering for sale, and/or distributing goods using unauthorized copies of Plaintiff’s Patent within
this District through various Internet based e-commerce stores and fully interactive commercial
2
Internet websites (such as Amazon, ebay and others) operating under their seller identification
names (“Seller IDs”), as set forth in Schedule A of the Amended Complaint. See Pl.’s Compl. at
Ex. No. 1 “Schedule A” (ECF No. 10-1); see also Yizhou Decl. at ¶¶ 10, 15 (ECF No. 11). A
simple comparison of Defendants’ infringing goods with Plaintiff’s Patent and any layman can
observe Defendants’ infringement of Plaintiff’s exclusive patent rights as the images are virtually
exact duplicates or substantially similar images to the 664 Patent. See Plaintiff’s Patent (Pl.’s Am.
Compl. at Ex. 1 (ECF No. 10-1) against screenshots of Defendants’ products on their e-commerce
stores. See Schedule B (ECF No. 12 1-9), Humberto Rubio, December 20, 2022 (“Rubio TRO
Decl.”) at ¶ 5 (ECF No. 12) and Zhou Decl. at ¶¶ 12-15 (ECF No. 11).
2. Legal Standard
The Supreme Court held that in patent disputes, “the decision whether to grant or deny
injunctive relief rests within the equitable discretion of the district courts, and that such discretion
must be exercised consistent with traditional principles of equity” ebay Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 394 (2006). Furthermore, the Patent Act, provides that courts may grant
injunctive relief on such terms as it may deem reasonable to prevent or restrain infringement. Id.
at 392 (quoting 35 U.S.C. § 283). The Patent Act also states that "patents shall have the attributes
of personal property," including "the right to exclude others from making, using, offering for sale,
or selling the invention” Id. (quoting 35 U.S.C. § 261).
In a patent case, in order to obtain a preliminary injunction, a party must demonstrate;
(1) a substantial likelihood of the patentee’s success on the merits, (2) irreparable harm if the
injunction were not granted, (3) the balance of hardships between the parties, and (4) that
granting the injunction would not disserve the public interest. Pass & Seymour, Inc. v. Hubbell,
Inc., 532 F. Supp. 2d 418, 427 (N.D.N.Y. 2007); Suntrust Bank v. Houghton Mifflin Company,
3
268 F.3d 1257, 1265 (11th Cir. 2001); see also Levi Strauss & Co. v. Sunrise Int’l Trading Inc.,
51 F. 3d 982, 985 (11th Cir. 1995) (affirming entry of preliminary injunction and freezing of
assets relying on affidavits and hearsay materials).
Plaintiff is entitled to a preliminary injunction based on its patent infringement claim
because it can show all four factors. See Tinnus Enters., LLC v. Telebrands Corp., 846 F. 3d
1190, 1202 (Fed. Cir. 2017).
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. Brotherhood of
Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cty., 415 U.S. 423, 439 (1974).
3. Conclusions of Law
The declarations of the Plaintiff (Declaration of Chenming Zhou and Declaration of
Humberto Rubio) submitted in support of its Ex Parte Application for Temporary
Restraining Order support the following conclusions of law:
A. The Plaintiff has a strong probability of proving at trial that the products Defendants
are selling and promoting for sale contain unauthorized reproductions and derivatives of Plaintiff’s
Patent.
4
B. Because of the infringement of the 664 Patent, the Plaintiff is likely to suffer
immediate and irreparable injury if a temporary restraining order is not granted. The following
specific facts, as set forth in the Plaintiff’s Complaint, Motion for Temporary Restraining Order,
and accompanying declarations, demonstrate that immediate and irreparable loss, damage, and
injury will result to the Plaintiff before the Defendants can be heard in opposition unless the
Plaintiff’s request for ex parte relief is granted:
1. The Defendants own or control Internet based e-commerce stores and
websites which advertise, promote, offer for sale, and sell products bearing infringing
images/products in violation of the Plaintiff’s rights;
2. There is good cause to believe that more infringing products bearing
reproductions and derivatives of the Plaintiff’s Patent will appear in the marketplace, and
that consumers are likely to be misled, confused, and disappointed by the quality of these
products; and
3. There is good cause to believe that if the Plaintiff proceeds on notice to the
Defendants of this Application for Temporary Restraining Order, the Defendants can easily
and quickly change the ownership or modify domain registration and e-commerce store
account data and content, change payment accounts, redirect consumer traffic to other
seller identification names, and transfer assets and ownership of Seller IDs thereby
thwarting the Plaintiff’s ability to obtain meaningful relief.
C. The balance of potential harm to the Defendants in restraining their trade in
infringing goods if a temporary restraining order is issued is far outweighed by the potential harm
to the Plaintiff, and its reputation as the owner of the 664 Patent.
5
D. The public interest favors issuance of the temporary restraining order to protect the
Plaintiff’s interests in its patent, to encourage respect for the law, and to protect the public from
being defrauded by the illegal sale of infringing goods.
E. The Plaintiff may be entitled to recover damages as provided by 35 U.S.C. § 289
and 35 U.S.C § 284.
F. Requesting equitable relief “invokes the district court’s inherent equitable powers
to order preliminary relief, including an asset freeze, in order to assure the availability of
permanent relief.” Levi Strauss & Co., 51 F.3d at 987 (citing Federal Trade Commission v. United
States Oil & Gas Corp., 748 F.2d 1431, 1433-34 (11th Cir. 1984)).
G. In light of the inherently deceptive nature of the infringing business, and the
likelihood that the Defendants have violated federal patent laws, the Plaintiff 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.
Upon review of the Plaintiff’s Complaint, Application for Temporary Restraining Order,
and supporting evidentiary submissions, the Court hereby
ORDERS and ADJUDGES that the Plaintiff’s Ex Parte Motion for Temporary
Restraining Order (ECF No. 13) is GRANTED, under the terms set forth below:
(1) Each of the Defendants, its officers, directors, employees, agents, subsidiaries,
distributors, and all persons in active concert or participation with any of the Defendants having
notice of this Order are temporarily restrained as follows:
a. From manufacturing, importing, advertising, promoting, offering to sell,
selling, distributing, or transferring any products bearing reproductions or derivatives of
the Plaintiff’s Patent; and
6
b. From secreting, concealing, destroying, selling off, transferring, or
otherwise disposing of: (i) any products, not manufactured or distributed by the Plaintiff,
bearing reproductions or derivatives of the Plaintiff’s Patent; (ii) any evidence relating to
the manufacture, importation, sale, offer for sale, distribution, or transfer of any products
bearing reproductions or derivatives of the Plaintiff’s Patent; 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 held by, or subject to access by, any
of the Defendants, including, but not limited to, any assets held by or on behalf of any of
the Defendants.
(2) Each of the Defendants, its officers, directors, employees, agents, subsidiaries,
distributors, and all persons in active concert or participation with any of the Defendants having
notice of this Order shall immediately discontinue the use of any unauthorized copies of the
Plaintiff Patent 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.
(3) Each of the Defendants shall not transfer ownership of the Seller IDs during the
pendency of this action, or until further Order of the Court.
(4) Upon receipt of notice of this Order, the Defendants and any third party financial
institutions, payment processors, banks, escrow services, money transmitters, or marketplace
platforms who is providing services for any of the Defendants, including but not limited to,
AliExpress, Alipay, Dhgate, Dhpay, Joom, Wish, Wishpay, Amazon, Amazon Pay, Ebay, Etsy,
Paypal, and/or Taobao, and their related companies and affiliates (collectively, the “Third Party
Providers”), shall within five (5) business days after receipt of notice of this Order,
7
a. Restrain the transfer of all funds, including funds relating to ongoing
account activity, held or received for the Defendants’ benefit or to be transferred into the
Defendants’ respective financial accounts, restrain any other financial accounts tied
thereto, and immediately divert those restrained funds to a holding account for the trust of
the Court. Such restraining of the funds and the disclosure of the related financial institution
account information (as provided below) shall be made without notice to the account
owners or the financial institutions until after those accounts are restrained. No funds
restrained by this Order shall be transferred or surrendered by any Third Party Provider 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.
b. Provide Plaintiff expedited discovery of the following: (i) the identity of all
financial accounts and/or sub-accounts associated with the Internet based e-commerce
stores operating under the Seller IDs identified on Schedule “A” hereto, as well as any
other accounts of the same customer(s); (ii) the identity and location of the Defendants
identified in Schedule “A,” including all known contact information including any and all
known aliases and associated e-mail addresses; (iii) an accounting of the total funds
restrained and identities of the financial account(s) and sub-account(s) for which the
restrained funds are related.
(5) Any Defendant or Third Party Provider subject to this Order may petition the Court
to modify the asset restraint set out in this Order.
(6) In addition to other methods authorized by law, the Plaintiff may provide notice of
these proceedings to third parties by delivery of this Order and other relevant documents to the
8
following Online Marketplace platforms, Financial Institutions and/or Third-Party Service
Providers at the following addresses:
i. Amazon at legal@amazon.com and registrar-abuse@amazon.com;

ii. PayPal, attention EE Omaha Legal Specialist at
EEOMALegalSpecialist@paypal.com;
iii. Alipay, attention Mr. Di Zhang, Member of the Legal & Compliance
Department – IP, at di.zd@alipay.com;
iv. Alibaba, attention Ms. Rachel Wang, Legal Counsel, Alibaba Group at
rachel.wy@alibaba-inc.com and Ms. Yujuan He, Paralegal, Alibaba Group at chloe.he @alibaba-
inc.com;
v. DHgate (including DHPay.com) at Patrol@dhgate.com;
vi. Wish, attention Mr. Dwight D. Lueck, Counsel for Wish.com, at
dlueck@btlaw.com;
vii. eBay, Inc., Ms. Kara Ricupero, Senior Director, Global Information
Governance, at kricupero@ebay.com, copyright@ebay.com and/or tros@ebay.com;
viii. Stripe, Attn. Legal, at notices@stripe.com;
ix. Payoneer, VP of Operations at VPOperations@Payoneer.com and/or
Melissa Godwin, Legal Counsel, at melissa.godwin@us.dlapiper.com;
x. Walmart, legal@walmart.com;
xi. Joom, IPR Team, ipr@joom.com;
xii. PingPong Global Solutions Inc., Legal Department at
legal@pingpongx.com.
(7) The Clerk of the Court is directed to issue a single original summons in the name
of “Gearking and all other Defendants identified in Schedule ‘A’ of the Complaint” that shall apply
to all Defendants. The combination of providing notice via electronic publication and e- mail,
along with any notice that Defendants receive from payment processors, shall constitute notice
reasonably calculated under all circumstances to apprise Defendants of the pendency of the action
and afford them the opportunity to present their objections.
(8) This Order shall apply to the Seller IDs, associated ecommerce stores and websites,
and any other seller identification names, e-commerce stores, domain names, websites, or financial
accounts which are being used by Defendants for the purpose of infringing the Plaintiff’s Patent
at issue in this action and/or unfairly competing with Plaintiff.
9
(9) This Order shall go into effect immediately and remain in full force for two weeks
from the date of entry of this Order and expires on __________________, 202__
at___________AM/PM, or until further order of the Court.
(10) Pursuant to Federal Rule of Civil Procedure 65(c), the Plaintiff shall post a bond
in the 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. In the Court’s discretion, the bond may be subject
to increase should an application be made in the interest of justice.
(11) After the Plaintiff’s counsel has received confirmation from the financial institutions
regarding the funds restrained as directed herein, the Plaintiff shall serve copies of the Complaint,
Application for Temporary Restraining Order, and this Order, on each Defendant by e-mail via
their corresponding e-mail address and/or online contact form or other means of electronic contact
provided on the Internet based e-commerce stores operating under the respective Seller IDs or by
providing a copy of this Order by email to the marketplace platforms for each of the Seller IDs so
that the registrar, or marketplace platform, in turn, notifies each of the Defendants of the Order, or
by other means reasonably calculated to give notice which is permitted by the Court. In addition,
the Plaintiff shall post copies of the Complaint, Application for Temporary Restraining Order, and
this Order, as well as all other documents filed in this action on the website located at
https://www.dropbox.com/sh/7jxnlm9jugvu2lg/AABoMp7AK-Bqiwni_WPb_Uyca?dl=0 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. The Plaintiff 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
10
https://www.dropbox.com/sh/7jxnlm9jugvu2lg/AABoMp7AK-Bqiwni_WPb_Uyca?dl=0 or by
other means reasonably calculated to give notice which is permitted by the Court.
(12) A hearing is set before this Court on_______________, at ____________________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
the Plaintiff’s requested preliminary injunction. The 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 35 U.S.C. § 283; Fed. R. Civ. P. 65, The All Writs Act, 28 U.S.C. § 1651(a); and this
Court’s inherent authority.
(13) Any response or opposition to the Plaintiff Motion for TRO must be filed and served
on Plaintiff’s counsel and field with the Court by _____________, 202__.
(14) The Clerk shall file this Order under seal until further order of the Court.
DONE AND ORDERED in Miami, Florida on this ____ day of December, 2022 at __:___
AM/PM.
______________________________
Robert N. Scola, Jr.
United States District Court Judge
cc: Counsel of Record
11

Zhou v. Schedule A - Motion For TRO

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Zhou v. Schedule A - Motion For TRO

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Case 1:22-cv-24013-RNS Document 13 Entered on FLSD Docket 12/21/2022 Page 1 of 18

UNITED STATES DISTRICT COURT FOR THE

THE INDIVIDUALS, PARTNERSHIPS AND

PLAINTIFF’S, CHENMING ZHOU, SEALED EX PARTE MOTION FOR ENTRY OF

Plaintiff, CHENMING ZHOU, (hereinafter referred to as “Plaintiff”), by and through

against Defendants, the Individuals, Partnerships, and Unincorporated Associations (collectively,

respectfully submits the following Memorandum of Law.

infringement lawsuit against Defendants, as e-commerce sellers that manufacture, distribute,

II. STATEMENT OF FACTS

Id. at ¶ 12 (ECF No. 8).

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

B. Defendants’ Patent Infringement

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

A” (ECF No. 10-2); see also Zhou Decl. at ¶ ¶ 10 (ECF 11).

A. Temporary Restraining Order and Preliminary Injunction Standard

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

assets relying on affidavits and hearsay materials).

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

1190, 1202 (Fed. Cir. 2017).

B. Likelihood of Success on the Merits

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

Egyptian Goddess, 543 F. 3d at 670.

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

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

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

Design Patent, No. US D 955,664S Infringing and Counterfeit Products

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

infringing, and counterfeit product infringes the 664 Patent.

C. Plaintiff is Suffering Irreparable Injury

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

in money. Id. at 1457.

activity is stopped. Zhou Decl. at ¶¶ 16-20 (ECF No. 11).

(internal quotation marks and citations omitted).

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

other goods that do not infringe the 664 Patent.

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

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

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

quick, easy, untraceable destruction by Defendants.”)

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

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

E. The Relief Sought Serves the Public Interest

preventing the misappropriation of protected works.)

and buying Defendants’ infringing goods.

IV. THE EQUITABLE RELIEF SOUGHT IS APPROPRIATE

A. Ex Parte Temporary Restraining Order is Appropriate

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

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

Plaintiff seeks an order temporarily prohibiting Defendants from transferring use or

meaningful relief in accordance with the Patent Act.

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

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

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

V. A Bond Should Secure the Injunction

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

Respectfully submitted on this 21st day of December, 2022.

LAW FIRM OF RUBIO & ASSOCIATES, P.A.

By:/s/ Humberto Rubio

Def. No. Platform Defendant Seller Store URL

72 Ebay shoptheremnant https://www.ebay.com/str/theremnantshoptn

145 Walmart CQ YJX Tech Co.Ltd https://www.walmart.com/seller/101230550

218 Ebay lit.ang https://www.ebay.com/usr/lit.ang