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Nintendo of America Inc. v. Chan

July 21, 2009

NINTENDO OF AMERICA INC., A WASHINGTON CORPORATION, PLAINTIFF,
v.
DANIEL MAN TIK CHAN, AN INDIVIDUAL, D/B/A WWW.DSELITE.COM, WWW.THEDSDEALS.COM, WWW.INSPIRETECH.COM, INSPIRE TECHNOLOGIES, AND INSPIRETECH ELECTRONICS; AND INSPIRE ELECTRONICS, INC.; DEFENDANTS.



The opinion of the court was delivered by: Hon. John F. Walter

NOTE: CHANGES MADE BY THE COURT

ORDER GRANTING PRELIMINARY INJUNCTION

1. Plaintiff Nintendo of America Inc. ("NOA") moved for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 and 17 U.S.C. §§ 1203 and 502, to enjoin Defendants from importing, marketing, or trafficking in products or devices that are primarily designed, and have only limited commercially significant purpose other than, to circumvent the technological security measures in Nintendo's DS video game systems (which include the Nintendo DS, Nintendo DS Lite, and Nintendo DSi) (collectively, the "Nintendo DS"). The accused devices are also marketed for use in circumventing the technological security measures of the Nintendo DS, and include products that are marketed and sold under the brand names AceKard, AceKard 2 for DSi, DSTT, DSTTi, DS Xtreme, Edge DS, EZ Flash, EZ Flash Vi, iTouch DS, M3 DS Real, N5 Revolution, ND1 Revolution, R4 DS Revolution, R4DS SDHC, R4i SDHC, and SuperCard DS One. The accused devices are collectively referred to herein as "Game Copiers."

The Court, having considered NOA's Motion and supporting Memorandum and Declarations, the Complaint, and the other records on file in this matter, and good cause appearing therefore, hereby GRANTS NOA's Motion for Preliminary Injunction. NOA is likely to succeed in showing that Defendants' importation, marketing, and sale of Game Copiers infringes NOA's intellectual property rights and violates the Digital Millennium Copyright Act, 17 U.S.C. §1201 et seq. ("DMCA"). It appears to the Court that the following Preliminary Injunction is necessary to ensure that NOA does not suffer irreparable harm pending trial of this action.

BACKGROUND

2. NOA is a Washington corporation headquartered in Redmond, Washington. NOA is a wholly-owned subsidiary of Nintendo Co. Ltd. ("NCL"), a Japanese company headquartered in Kyoto, Japan (collectively, NOA and NCL are referred to herein as "Nintendo").

3. Defendant Daniel Man Tik Chan (aka Morjn Chan or Morgan Chan) is an individual who resides in this District. Defendant Chan owns or serves as President or CEO of Defendant Inspire Electronics, Inc. Defendant Chan also does business as Inspire Technologies, Inspiretech Electronics, www.dselite.com, www.thedsdeals.com, and www.inspiretech.com. Defendant Chan is engaged in the business of importing, marketing, and trafficking in Game Copiers, and personally benefits from those sales.

4. Defendant Inspire Electronics, Inc. ("Inspire Electronics") is a corporation with an address of 20819 Currier Rd., Suite 200, Walnut, California. Inspire Electronics does business in this District and on the Internet as www.inspiretech.com, www.dselite.com, and www.thedsdeals.com, and is engaged in the business of importing, marketing, and trafficking in, among other things, Game Copiers.

5. The Defendants presently market and traffic in Game Copiers, including without limitation AceKard, AceKard 2 for DSi, DSTT, DSTTi, Edge DS, EZ Flash, EZ Flash Vi, iTouch DS, M3 DS Real, N5 Revolution, ND1 Revolution, R4 DS Revolution, R4DS SDHC, R4i SDHC, and SuperCard DS One.

6. Each of the Defendants is an agent of the other.

7. Defendant Inspire Electronics is the alter ego of Defendant Chan.

8. Defendant Chan owns, operates, or otherwise controls Defendant Inspire Electronics, personally participated in or had the right and ability to direct and control the wrongful conduct alleged in this Complaint, and derived direct financial benefit from that wrongful conduct.

9. NOA is likely to succeed in showing ...


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