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Michael Kors, L.L.C. v. Bayzamzamo

United States District Court, S.D. Florida

July 29, 2019

MICHAEL KORS, L.L.C., Plaintiff,
v.
BAYZAMZAMO, et al. Defendants. Trademark Registration Number Registration Date Class(es) / Relevant Goods Def. No. Defendant / Seller Name Seller Platform PayPal Account Store URL (Wish Only)

          ORDER GRANTING APPLICATION FOR ENTRY OF PRELIMINARY INJUNCTION

          RODNEY SMITH UNITED STATES DISTRICT JUDGE

         THIS CAUSE came before the Court upon Plaintiff's Application for Entry of Preliminary Injunction (the “Application”) [DE 5]. The Court has carefully reviewed the Application and the record and is otherwise fully advised in the premises.

         By the instant Application, Plaintiff, Michael Kors, L.L.C. (“Plaintiff”) moves for entry of preliminary injunction against Defendants, the Individuals, Partnerships, and Unincorporated Associations Identified on Schedule “A” hereto (collectively “Defendants”) pursuant to 15 U.S.C. § 1116 and Fed.R.Civ.P. 65, and The All Writs Act, 28 U.S.C. § 1651(a).

         The Court convened a hearing on July 29, 2019, at which only counsel for Plaintiff was present and available to present evidence supporting the Application. Because Plaintiff has satisfied the requirements for the issuance of a preliminary injunction, the Court will now grant Plaintiff's Application for Preliminary Injunction.

         I. Factual Background[1]

         Plaintiff is the owner of the following trademarks, which are valid and registered on the Principal Register of the United States Patent and Trademark Office (the “Michael Kors Marks”):

Trademark
Registration Number
Registration Date
Class(es) / Relevant Goods

MICHAEL KORS

1, 977, 507

June 4, 1996

IC 025; ladies' clothing; namely, dresses, jackets, pants, skirts, shirts, blouses, shorts, sweaters, coats, swimwear.

MICHAEL KORS

2, 049, 326

April 1, 1997

IC 025; clothing for use by women; namely, anoraks; ascots; bandanas; belts; blazers; blousons; bodysuits; boleros; boots; camisoles; capes; caps; cardigans; chemises; clogs; fur coats; suit coats; culottes; earmuffs; gloves; halter tops; hats; headbands; jeans; jogging suits; jumpers; jumpsuits; kerchiefs; kimonos; leggings; loungewear; mittens; moccasins; mufflers; neckerchiefs; neckties; neckwear; pantsuits; parkas; pedal pushers; ponchos; pullovers; raincoats; sandals; scarves; shawls; shorts; undershirts; athletic shoes; gym shorts; sweat shorts; slacks; socks; sport coats; sport shirts; stoles; suits; sweat pants; sweat shirts; T-shirts; trousers; vests; vested suits; and warm-up suits; and, clothing for use by men; namely, anoraks; belts; blazers; cardigans; fur coats; suit coats; gloves; hats; neckties; neckwear; parkas; squares; pullovers; raincoats; scarves; shorts; undershirts; slacks; sport coats; sport shirts; suits; sweat pants; sweat shirts; T-shirts; trousers; tuxedos; vests; vested suits.

MICHAEL KORS

MICHAEL MICHAEL KORS

2, 520, 757

3, 080, 631

December 18, 2001

April 11, 2006

IC 018; handbags, billfolds, credit card cases, key cases, and tote bags

IC 018; bags, namely, tote bags; handbags; purses; wallets.

IC 025; Men's and women's clothing, namely, dresses, skirts, blouses, pants, jackets, blazers, coats, raincoats, capes, ponchos, scarves, hats, gloves, sweaters, belts, bathing suits, halter tops, jeans, warm up suits, sweatshirts, sweatpants, leggings, shorts, slacks, sport coats, sport shirts, suits, t-shirts, vests, ties; undergarments for women, namely, camisoles; footwear and headwear; belts.

MICHAEL KORS

3, 160, 981

October 17, 2006

IC 014; watches

MK MICHAEL KORS

3, 438, 412

May 27, 2008

IC 009; eyeglass frames, eyeglasses, sunglasses, eye shades

IC 018; handbags

IC 025; Men's and women's clothing, namely, dresses, skirts, blouses, pants, jackets, blazers, coats, sweaters, belts, jeans, sweatshirts, shorts, slacks, sport coats, T-shirts, footwear and headwear; belts.

MK MICHAEL KORS

3, 535, 310

November 18, 2008

IC 014; watches

MICHAEL KORS

4, 052, 748

November 8, 2011

IC 014; jewelry

MICHAEL KORS

4, 334, 410

May 14, 2013

IC 009; Protective cases, covers and carrying cases for mobile phones, portable media players, personal digital assistants, laptops and tablet computers

         (See Declaration of Jenna Curtis in Support of Plaintiff's Application for Preliminary Injunction (“Curtis Decl.”) ¶ 5; see also United States Trademark Registrations of the Michael Kors Marks at issue attached as Composite Exhibit 1 to the Amended Complaint.) The Michael Kors Marks are used in connection with the design, marketing, and distribution of high quality goods in the categories identified above. (See Id. ¶¶ 4-5.)

         Defendants, by operating the e-commerce stores via the Internet marketplace websites, eBay.com or Wish.com, under their seller identification names identified on Schedule “A” hereto (the “Seller IDs”), have advertised, promoted, offered for sale, or sold goods bearing and/or using what Plaintiff has determined to be counterfeits, infringements, reproductions, and/or colorable imitations of the Michael Kors Marks. (See Curtis Decl. ¶¶ 10-14; Declaration of Christine Ann Daley in Support of Plaintiff's Application for Preliminary Injunction (“Daley Decl.”) ¶ 2; Declaration of Kathleen Burns in Support of Plaintiff's Application for Preliminary Injunction (“Burns Decl.”) ¶ 4.)

         Although each Defendant may not copy and infringe each Michael Kors Mark for each category of goods protected, Plaintiff has submitted sufficient evidence showing each Defendant has infringed, at least, one or more of the Michael Kors Marks. (See Curtis Decl. ¶¶ 10-14.) Defendants are not now, nor have they ever been, authorized or licensed to use, reproduce, or make counterfeits, reproductions, or colorable imitations of the Michael Kors Marks. (See Id. at ¶¶ 11, 14.)

         Plaintiff's counsel retained Invisible Inc, a licensed private investigative firm, to investigate the promotion and sale of counterfeit and infringing versions of Michael Kors branded products by Defendants. (Curtis Decl. ¶ 11; Burns Decl. ¶ 3; Daley Decl. ¶ 2.) Invisible Inc accessed each of the e-commerce stores operating under Defendants' Seller IDs, placed an order for the purchase of a product bearing counterfeits of, at least, one of the Michael Kors Marks at issue in this action, via each Seller ID, and requested each product to be shipped to Invisible Inc's address in the Southern District of Florida. (See Burns Decl. ¶ 4.) Following submission of the orders, Invisible finalized payment for the Michael Kors branded items purchased from Defendants to Defendants' respective payment accounts[2] and/or payee[3] as identified on Schedule “A” hereto. (Id.) At the conclusion of the process, the detailed web page captures and images of the Michael Kors branded items Invisible purchased via Defendants' Seller IDs, together with photographs[4] of the some of the items Invisible received, were sent to Plaintiff's representative for review. (See Curtis Decl. ¶¶ 12-13; Burns Decl. ¶ 4; Daley Decl. ¶ 2.) Plaintiff's representative conducted a review and visually inspected the Michael Kors branded items Invisible purchased via each of the Seller IDs and determined the products were non-genuine, unauthorized versions of Plaintiff's products. (See Curtis Decl. ¶¶ 13-14.)

         On June 26, 2019, Plaintiff filed its Complaint [DE 1] and thereafter its Amended Complaint on July 19, 2019 [DE 15] against Defendants for federal trademark counterfeiting and infringement, false designation of origin, common law unfair competition, and common law trademark infringement. On June 27, 2019, Plaintiff filed its Ex Parte Application for Entry of Temporary Restraining Order, Preliminary Injunction, and Order Restraining Transfer of Assets [DE 5]. On July 15, 2019, this Court entered an Order Granting Ex Parte Application for Entry of Temporary Restraining Order (the “TRO”) [DE 8] and temporarily restrained Defendants from infringing the Michael Kors Marks at issue and restrained funds in the payment accounts associated with the Defendants. Pursuant to the Court's July 15, 2019 TRO, Plaintiff properly served Defendants with a copy of the Amended Complaint, and all filings in this matter, and the Court's July 15, 2019 TRO [see DE Nos. 21 and 22]. On July 29, 2019, the Court conducted a hearing on Plaintiff's Application, at which only counsel for Plaintiff was in attendance.

         II. Legal Standard

         In order to obtain a preliminary injunction, a party must demonstrate “(1) [there is] a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that the entry of the relief would serve the public interest.” Schiavo ex. rel Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005); see also Levi Strauss & Co. v. Sunrise Int'l. Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (applying the test to a preliminary injunction in a Lanham Act case).

         III. Conc ...


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