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Kingston Technology Corp. v. Jiaxin Technology

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 15, 2009

KINGSTON TECHNOLOGY CORPORATION, A CALIFORNIA CORPORATION, KINGSTON DIGITAL, INC., A DELAWARE CORPORATION, KINGSTON TECHNOLOGY COMPANY, INC., A DELAWARE CORPORATION PLAINTIFFS
v.
JIAXIN TECHNOLOGY, A CHINESE COMPANY, YONG LIU, AN INDIVIDUAL, ADD2NET, INC., A CALIFORNIA CORPORATION, AND DOES 1-10 DEFENDANTS.

The opinion of the court was delivered by: Honorable Cormac J. Carney United States District Court Judge

NOTE: CHANGES MADE BY THE COURT

[PROPOSED] ORDER GRANTING PRELIMINARY INJUNCTION Honorable Cormac J. Carney Courtroom 9B

Whereas Plaintiffs Kingston Technology Corporation, Kingston Digital, Inc., And Kingston Technology Company, Inc. (collectively "Kingston") have established: (i) that ex parte relief is necessary to give effect to the remedies afforded Kingston by law under 15 U.S.C. § 1114; (ii) that Plaintiffs are likely to succeed in showing that the Defendants used a counterfeit mark in connection with the sale, offering for sale, or distribution of goods or services; (iii) that an immediate and irreparable injury will occur if a temporary restraining order is not issued; (iv) and that the harm to Plaintiffs from denying the application outweighs the potential harm to Defendants from granting the temporary restraining order.

Therefore, pursuant to Kingston's Ex Parte Application for Temporary Restraining Order, Plaintiff's Memorandum of Points and Authorities in support thereof, and good cause appearing, it is hereby

ORDERED:

(1) Jiaxin Technology Corporation, Yong Liu, and all DOES receiving notice of this Order, their officers, agents, assigns and representatives ("Jiaxin, Liu, and DOES") are hereby preliminarily enjoined from operating, hosting, registering, or facilitating any website or domain name, including but not limited to "kingstonusbcf.com," containing the KINGSTON, KINGSTON TECHNOLOGY, or DATATRAVELER marks (collectively the "Kingston Marks") or any variation, combination, misspelling, or colorable imitation thereof.

(2) Jiaxin, Liu, and DOES are further enjoined from manufacturing, selling, offering for sale, promoting, advertising, shipping, or transferring any counterfeit, copy, or colorable imitation of any product labeled, designated or referred to by the Kingston Marks or any variation or combination thereof.

(3) Jiaxin, Liu, and DOES are further enjoined from transferring, withdrawing, hiding, spending, or otherwise making unavailable any money or assets which Jiaxin, Liu, and DOES have acquired through the sale of counterfeit products containing the Kingston Marks.

(4) On two days' written notice to this Court and plaintiff, Jiaxin, Liu, and DOES may appear and move for the dissolution or modification of this order.

(5) Jiaxin, Liu, and DOES are further hereby given notice that violation of any of the terms of this Order may be considered contempt of court.

ORDERED:

(1) Add2Net, Inc. is hereby preliminarily enjoined from operating, hosting, registering or facilitating the domain name http://www.kingstonusbcf.com (hereinafter the "Subject Domain Name").

(2) Add2Net, Inc. shall terminate the web hosting account containing the subject domain name and any other web hosting account under the name of the account holder of the Subject Domain Name or Jiaxin Technology or Yong Liu.

(3) Within three days of the effective date of this order, Add2Net, Inc. shall provide counsel for the plaintiff a current list of all account level domain names containing the words Kingston or Datatraveler (hereinafter "First Disclosure List").

(4) Within three (3) days of providing the First Disclosure List, plaintiff shall provide counsel for defendant Add2Net, Inc. with a list of any domain names contained within the First Disclosure List together with a written statement that plaintiff has determined through its investigation that those domain names are linked to websites that contain counterfeit items as described elsewhere in this order.

(5) Within three (3) days of receipt of such list and statement Add2Net shall terminate the web hosting account containing the domain name identified in any such list and statement.

(6) Within ten (10) days after ninety (90) days of the effective date of this order, Add2Net, Inc. shall provide counsel for the plaintiff a then current list of all account level domain names containing the words Kingston or Datatraveler (hereinafter "Second Disclosure List").

(7) Within three (3) days of providing the Second Disclosure List, plaintiff shall provide counsel for defendant Add2Net, Inc. with a list of any domain names contained within the Second Disclosure List together with a written statement that plaintiff has determined through its investigation that those domain names are linked to websites that contain counterfeit items as described elsewhere in this order.

(8) Within three (3) days of receipt of such list and statement Add2Net shall terminate the web hosting account containing the domain name identified in any such list and statement.

(9) On two days' written notice to this Court and plaintiff, Add2Net may appear and move for the dissolution or modification of this order.

(10) Add2Net is further hereby given notice that violation of any of the terms of this Order may be considered contempt of court.

ORDERED:

(1) PayPal, a subsidiary of eBay Inc. and MoneyGram International Inc. are hereby preliminarily enjoined pending the hearing on this Order to Show Cause from transferring, disbursing, or releasing any monies of Jiaxin Technology, Yong Liu or any entity associated with the website "www.kingstonusbcf.com" without prior approval of this Court.

(2) PayPal, a subsidiary of eBay Inc. and MoneyGram International Inc. are hereby preliminarily enjoined pending the hearing on this Order to Show Cause from accepting any monies on behalf of Jiaxin Technology, Yong Liu or any entity associated with the website "www.kingstonusbcf.com" without prior approval of this Court.

(3) On two days' written notice to this Court and plaintiff, PayPal, a subsidiary of eBay Inc. or MoneyGram International Inc. may appear and move for the dissolution or modification of this order.

(4) PayPal, a subsidiary of eBay Inc. and MoneyGram International Inc. are further hereby given notice that violation of any of the terms of this Order may be considered contempt of court.

ORDERED:

(1) Western Union Financial Services, Inc. is hereby preliminarily enjoined from releasing any funds transferred to Jiaxin Technology or to Yong Liu, with an address of No. 39 Yongquan Lane, Shiba District, Ruian, Zhejiang 325200 China or with any other address provided to Western Union Financial Services, Inc. by counsel for Plaintiff, to these Defendants. If money is transferred to Jiaxin Technology or to Yong Liu as identified above, it will be returned to the sender. This paragraph and the obligation set forth herein shall be limited to transfers that are sent from the United States to Jiaxin Technology or Yong Liu in China.

(2) Western Union Financial Services, Inc. is hereby preliminarily enjoined from paying out any funds transferred by Jiaxin Technology or by Yong Liu, with an address of No. 39 Yongquan Lane, Shiba District, Ruian, Zhejiang 325200 China, or with any other address provided to Western Union Financial Services, Inc. by counsel for Plaintiff, to the recipients designated by these Defendants. If funds are accepted from Jiaxin Technology or Yong Liu as identified above, Western Union Financial Services, Inc. will temporarily seize such funds and will notify counsel for the Plaintiff. Counsel for the Plaintiff will then seek a court order that sets forth the disposition to be made of the seized funds. This paragraph and the obligation set forth herein shall be limited to transfers that are sent from Jiaxin Technology or Yong Liu in China to the United States.

(3) Western Union Financial Services, Inc. reserves the right to seek a modification of this Order. On two days' written notice to the Court and the Plaintiff, Western Union Financial Services, Inc. may move the Court for a modification or dissolution of this Order.

IT IS SO ORDERED.

20091015

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