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Affliction Holdings, LLC, A California Limited Liability Company v. Alfonsin Avendano; Jing Yang; A You; Xie Yue Dong; Zhang Shuangjiang

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION


May 1, 2012

AFFLICTION HOLDINGS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, PLAINTIFF(S),
v.
ALFONSIN AVENDANO; JING YANG; A YOU; XIE YUE DONG; ZHANG SHUANGJIANG; YE LIZHEN; HUI CHEN AND DOE 1 THROUGH DOE 10, INCLUSIVE; DEFENDANT(S).

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

Assigned to Judge Cormac J. Carney Magistrate Judge Marc L. Goldman

[PROPOSED] PRELIMINARY INJUNCTION

This Cause came for hearing on May 1, 2012, pursuant to this Court's April 16, 2012, Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue. [e-docket 11] For the Reasons that follow, the preliminary injunctive relief sought in Plaintiff's Ex Parte Application for Entry of a Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue ("Ex Parte Application") [e-docket 8] is GRANTED.

BACKGROUND

On March 14, 2012, Plaintiff, Affliction Holdings, LLC ("Affliction" or "Plaintiff") filed its Complaint [e-docket 1] against Defendants Alfonsin Avendano, Jing Yang, A You, Xie Yue Dong, Zhang Shuangjiang, Ye Lizhen, Hui Chen, and Doe 1 through Doe 10, inclusive (collectively the "Defendants") for alleged violations of trademark counterfeiting and infringement, false designation of origin, and cyberpiracy. On April 10, 2012, Plaintiff filed its Ex Parte Application for Entry of a Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue [e-docket 8], and this Court entered an Order directing Defendants to show cause why Plaintiff's request for a Preliminary Injunction would not be granted [e-docket 11]. The Court further ordered Plaintiff to serve a copy of the Court's Order on the Defendants via email. A Declaration regarding Plaintiff's compliance with the Court's Temporary Restraining Order was filed by Plaintiff on April 21, 2012 [e-docket 13].

The Court convened the hearing on May 1, 2012, at which only counsel for Plaintiff was present and available to present evidence supporting the Ex Parte Application. No written response has been filed by the Defendants to the Ex Parte Application, nor have Defendants appeared individually or through counsel in this matter.

CONCLUSIONS OF LAW

The declarations and supporting evidentiary submissions Plaintiff submitted in support of its Ex Parte Application and the facts presented at oral argument support the following conclusions of law:

A. Plaintiff has shown a likelihood of success on its claims against Defendants for federal trademark infringement and counterfeiting, false designation of origin, and cyberpiracy;

B. Plaintiff will suffer irreparable harm unless Defendants are enjoined;

C. A preliminary injunction is necessary to prevent irreparable injury to Plaintiff's reputation and business; and

D. The balance of equities and the interests of justice support granting such relief.

Accordingly, IT IS HEREBY ORDERED that Defendants, their respective officers, directors, employees, agents, subsidiaries, distributors, and all persons in active concert or participation with Defendants having notice of this Order are preliminarily restrained from manufacturing, importing, advertising, promoting, offering to sell, selling, distributing, or transferring any products bearing the Affliction trademarks which include the terms AFFLICTION, SINFUL, AFFLICTION LIVE FAST, AFFLICTION AMERICAN CUSTOMS, or any confusingly similar trademark; from secreting, concealing, destroying, selling off, transferring, or otherwise disposing of: (i) any products, not manufactured or distributed by Affliction, bearing the Affliction trademarks, 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 the Affliction trademarks, or any confusingly similar trademarks.

IT IS FURTHER ORDERED that Defendants, their respective officers, directors, employees, agents, subsidiaries, distributors, and all persons in active concert or participation with Defendants having notice of this Order shall, until the conclusion of this action, discontinue the use of the Affliction trademarks which include the terms AFFLICTION, SINFUL, AFFLICTION LIVE FAST, AFFLICTION AMERICAN CUSTOMS, and which are further identified in the attached Schedule A ("Affliction Marks"), or any confusingly similar trademarks in any manner, including on or in connection with Internet website businesses owned and operated or controlled by them, specifically including the Internet websites operating under the domain names listed on the attached Schedule B (collectively referred to herein as the "Subject Domain Names").

IT IS FURTHER ORDERED that Defendants, their respective officers, directors, employees, agents, subsidiaries, distributors, and all persons in active concert or participation with Defendants having notice of this Order shall, until the conclusion of this action, discontinue the use of the Affliction Marks (1) within domain names, domain name extensions, metatags or other markers within their websites' source code, (2) on any webpage (including as the title of any web page),

(3) in any advertising links to other websites, from search engines' databases or cache memory, and (4) in any other manner of use in which such Affliction Marks are visible to a computer user or serve to direct computer searches on search engines to websites registered by, owned, or operated by Defendants, including the Internet websites operating under the Subject Domain Names.

IT IS FURTHER ORDERED that Defendants shall not transfer ownership of the Subject Domain Names during the pendency of this Action, or until further Order of the Court.

IT IS FURTHER ORDERED that the Registrar(s) for the Subject Domain Names, shall continue to lock the Subject Domain Names and, to the extent not already done, provide to Plaintiff's counsel, for deposit with this Court, a Registrar Certificate for each of the Subject Domain Names.

IT IS FURTHER ORDERED that the top level domain (TLD) Registries for the Subject Domain Names, Verisign, Inc. (for the .net domains) and the Public Interest Registry (for the .org domains), shall immediately, or to the extent already done continue to, maintain the Subject Domain Names on Registry Hold status, thus removing them from the TLD zone files maintained by the respective Registry which link the Subject domain Names to the IP addresses where their associated websites are hosted.

IT IS FURTHER ORDERED that Defendants shall continue to preserve copies of all their computer files relating to the use of any of the Subject Domain Names and shall take all steps necessary to retrieve and preserve computer files relating to the use of any of the Subject Domain Names and\or the website operating thereunder which may have been deleted before the entry of this Order.

IT IS FURTHER ORDERED that this Preliminary Injunction shall remain in effect during the pendency of this action, or until such further date as set by the Court or stipulated to by the parties.

IT IS FURTHER ORDERED that the bond posted on April 20, 2012, in the amount of $10,000.00 shall continue to be in effect during the pendency of this preliminary injunction.

SCHEDULE A

Mark Registration No. Registration Date

SINFUL 2,639,453 October 22, 2002

AFFLICTION 3,109,069 June 27, 2006

AFFLICTION 3,706,917 November 3, 2009

AFFLICTION 3,747,346 February 9, 2010

AFFLICTION (stylized) 3,790,247 May 18, 2010

AFFLICTION LIVE FAST 3,888,936 December 14, 2010

AFFLICTION LIVE FAST 3,906,589 January 18, 2011

AFFLICTION AMERICAN CUSTOMS 4,032,767 September 27, 2011

SCHEDULE B SUBJECT DOMAIN NAMES

afflictioncheap.com afflictiondiscount.com afflictiononoutlet.com afflictiononsale.com afflictionsale.org afflictionshop.net afflictionclothingsale.net afflictionclothingstore.org afflictionjeans.org afflictionmarket.com afflictionoutletonline.com afflictionclothingoutlet.com afflictionfrance.com afflictiondeutsch.com afflictionse.com afflictionshopping.com usaaffliction.com usaafflictionclothing.com usasinful.com

20120501

© 1992-2012 VersusLaw Inc.



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