Kingston Technology Corporation et al v. Jiaxin Technology et al, No. 8:2009cv01038 - Document 24 (C.D. Cal. 2009)
Court Description: ORDER GRANTING PRELIMINARY INJUNCTION by Judge Cormac J. Carney. (See Order for details) (db)
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Kingston Technology Corporation et al v. Jiaxin Technology et al 1 2 3 4 5 6 7 8 Doc. 24 JAN P. WEIR, STATE BAR NO. 106652 DOUGLAS Q. HAHN, STATE BAR NO. 257559 TAYLOR C. FOSS, STATE BAR NO. 253486 KATHRINE J. WEIR STATE BAR NO. 262740 STRADLING YOCCA CARLSON & RAUTH A Professional Corporation 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660-6422 Telephone:(949) 725-4000 Fax:(949) 725-4100 NOTE: CHANGES MADE BY THE COURT Attorneys For Plaintiffs KINGSTON TECHNOLOGY CORPORATION, KINGSTON DIGITAL, INC., and KINGSTON TECHNOLOGY COMPANY, INC. 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 14 15 KINGSTON TECHNOLOGY CORPORATION, a California corporation, KINGSTON DIGITAL, INC., a Delaware corporation, KINGSTON TECHNOLOGY COMPANY, INC., a Delaware Corporation Plaintiffs 16 17 Case No. SACV-09-1038 CJC (RNBx) Honorable Cormac J. Carney Courtroom 9B [PROPOSED] ORDER GRANTING PRELIMINARY INJUNCTION vs. 18 19 20 JIAXIN TECHNOLOGY, a Chinese company, YONG LIU, an individual, ADD2NET, INC., a California Corporation, and DOES 1-10 21 22 Defendants. 23 24 25 26 27 28 S TRADLING Y OCCA C ARLSON & R AUTH LAWYERS N E W P O R T B E AC H [PROPOSED] PRELIMINARY INJUNCTION DOCSOC/1369694v1/100805-0010 Dockets.Justia.com 1 Whereas Plaintiffs Kingston Technology Corporation, Kingston Digital, 2 Inc., And Kingston Technology Company, Inc. (collectively “Kingston”) have 3 established: (i) that ex parte relief is necessary to give effect to the remedies 4 afforded Kingston by law under 15 U.S.C. § 1114; (ii) that Plaintiffs are likely to 5 succeed in showing that the Defendants used a counterfeit mark in connection with 6 the sale, offering for sale, or distribution of goods or services; (iii) that an 7 immediate and irreparable injury will occur if a temporary restraining order is not 8 issued; (iv) and that the harm to Plaintiffs from denying the application outweighs 9 the potential harm to Defendants from granting the temporary restraining order. 10 Therefore, pursuant to Kingston’s Ex Parte Application for Temporary 11 Restraining Order, Plaintiff’s Memorandum of Points and Authorities in support 12 thereof, and good cause appearing, it is hereby 13 14 ORDERED: 15 (1) Jiaxin Technology Corporation, Yong Liu, and all DOES receiving 16 notice of this Order, their officers, agents, assigns and representatives (“Jiaxin, Liu, 17 and DOES”) are hereby preliminarily enjoined from operating, hosting, registering, 18 or facilitating any website or domain name, including but not limited to 19 “kingstonusbcf.com,” containing the KINGSTON, KINGSTON TECHNOLOGY, 20 or DATATRAVELER marks (collectively the “Kingston Marks”) or any variation, 21 combination, misspelling, or colorable imitation thereof. 22 (2) Jiaxin, Liu, and DOES are further enjoined from manufacturing, 23 selling, offering for sale, promoting, advertising, shipping, or transferring any 24 counterfeit, copy, or colorable imitation of any product labeled, designated or 25 referred to by the Kingston Marks or any variation or combination thereof. 26 27 (3) Jiaxin, Liu, and DOES are further enjoined from transferring, withdrawing, hiding, spending, or otherwise making unavailable any money or 28 -2- S TRADLING Y OCCA C ARLSON & R AUTH LAWYERS N E W P O R T B E AC H [PROPOSED] PRELIMINARY INJUNCTION DOCSOC/1369694v1/100805-0010 1 assets which Jiaxin, Liu, and DOES have acquired through the sale of counterfeit 2 products containing the Kingston Marks. (4) 3 4 and DOES may appear and move for the dissolution or modification of this order. (5) 5 6 On two days’ written notice to this Court and plaintiff, Jiaxin, Liu, 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. 7 8 ORDERED: 9 (1) Add2Net, Inc. is hereby preliminarily enjoined from operating, 10 hosting, registering or facilitating the domain name http://www.kingstonusbcf.com 11 (hereinafter the “Subject Domain Name”). (2) 12 Add2Net, Inc. shall terminate the web hosting account containing the 13 subject domain name and any other web hosting account under the name of the 14 account holder of the Subject Domain Name or Jiaxin Technology or Yong Liu. (3) 15 Within three days of the effective date of this order, Add2Net, Inc. 16 shall provide counsel for the plaintiff a current list of all account level domain 17 names containing the words Kingston or Datatraveler (hereinafter “First Disclosure 18 List”). (4) 19 Within three (3) days of providing the First Disclosure List, plaintiff 20 shall provide counsel for defendant Add2Net, Inc. with a list of any domain names 21 contained within the First Disclosure List together with a written statement that 22 plaintiff has determined through its investigation that those domain names are 23 linked to websites that contain counterfeit items as described elsewhere in this 24 order. 25 (5) Within three (3) days of receipt of such list and statement Add2Net 26 shall terminate the web hosting account containing the domain name identified in 27 any such list and statement. 28 -3- S TRADLING Y OCCA C ARLSON & R AUTH LAWYERS N E W P O R T B E AC H [PROPOSED] PRELIMINARY INJUNCTION DOCSOC/1369694v1/100805-0010 1 (6) Within ten (10) days after ninety (90) days of the effective date of this 2 order, Add2Net, Inc. shall provide counsel for the plaintiff a then current list of all 3 account level domain names containing the words Kingston or Datatraveler 4 (hereinafter “Second Disclosure List”). 5 (7) Within three (3) days of providing the Second Disclosure List, 6 plaintiff shall provide counsel for defendant Add2Net, Inc. with a list of any 7 domain names contained within the Second Disclosure List together with a written 8 statement that plaintiff has determined through its investigation that those domain 9 names are linked to websites that contain counterfeit items as described elsewhere 10 11 in this order. (8) Within three (3) days of receipt of such list and statement Add2Net 12 shall terminate the web hosting account containing the domain name identified in 13 any such list and statement. 14 15 16 17 (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. 18 19 ORDERED: 20 (1) PayPal, a subsidiary of eBay Inc. and MoneyGram International Inc. 21 are hereby preliminarily enjoined pending the hearing on this Order to Show Cause 22 from transferring, disbursing, or releasing any monies of Jiaxin Technology, Yong 23 Liu or any entity associated with the website “www.kingstonusbcf.com” without 24 prior approval of this Court. 25 (2) PayPal, a subsidiary of eBay Inc. and MoneyGram International Inc. 26 are hereby preliminarily enjoined pending the hearing on this Order to Show Cause 27 from accepting any monies on behalf of Jiaxin Technology, Yong Liu or any entity 28 -4- S TRADLING Y OCCA C ARLSON & R AUTH LAWYERS N E W P O R T B E AC H [PROPOSED] PRELIMINARY INJUNCTION DOCSOC/1369694v1/100805-0010 1 associated with the website “www.kingstonusbcf.com” without prior approval of 2 this Court. 3 (3) On two days’ written notice to this Court and plaintiff, PayPal, a 4 subsidiary of eBay Inc. or MoneyGram International Inc. may appear and move for 5 the dissolution or modification of this order. 6 (4) PayPal, a subsidiary of eBay Inc. and MoneyGram International Inc. 7 are further hereby given notice that violation of any of the terms of this Order may 8 be considered contempt of court. 9 10 ORDERED: 11 (1) 12 enjoined from releasing any funds transferred to Jiaxin Technology or to Yong Liu, 13 with an address of No. 39 Yongquan Lane, Shiba District, Ruian, Zhejiang 325200 14 China or with any other address provided to Western Union Financial Services, 15 Inc. by counsel for Plaintiff, to these Defendants. If money is transferred to Jiaxin 16 Technology or to Yong Liu as identified above, it will be returned to the sender. 17 This paragraph and the obligation set forth herein shall be limited to transfers that 18 are sent from the United States to Jiaxin Technology or Yong Liu in China. 19 (2) Western Union Financial Services, Inc. is hereby preliminarily 20 enjoined from paying out any funds transferred by Jiaxin Technology or by Yong 21 Liu, with an address of No. 39 Yongquan Lane, Shiba District, Ruian, Zhejiang 22 325200 China, or with any other address provided to Western Union Financial 23 Services, Inc. by counsel for Plaintiff, to the recipients designated by these 24 Defendants. If funds are accepted from Jiaxin Technology or Yong Liu as 25 identified above, Western Union Financial Services, Inc. will temporarily seize 26 such funds and will notify counsel for the Plaintiff. Counsel for the Plaintiff will 27 then seek a court order that sets forth the disposition to be made of the seized 28 funds. This paragraph and the obligation set forth herein shall be limited to -5- S TRADLING Y OCCA C ARLSON & R AUTH LAWYERS N E W P O R T B E AC H Western Union Financial Services, Inc. is hereby preliminarily [PROPOSED] PRELIMINARY INJUNCTION DOCSOC/1369694v1/100805-0010 1 transfers that are sent from Jiaxin Technology or Yong Liu in China to the United 2 States. 3 (3) Western Union Financial Services, Inc. reserves the right to seek a 4 modification of this Order. On two days’ written notice to the Court and the 5 Plaintiff, Western Union Financial Services, Inc. may move the Court for a 6 modification or dissolution of this Order. 7 8 IT IS SO ORDERED. 9 10 11 Dated: October 15, 2009 12 ____________________________ Honorable Cormac J. Carney United States District Court Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- S TRADLING Y OCCA C ARLSON & R AUTH LAWYERS N E W P O R T B E AC H [PROPOSED] PRELIMINARY INJUNCTION DOCSOC/1369694v1/100805-0010
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