KTM AG v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto
| KTM AG |
| The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto, HIAORS (Def 139), gdutfactory, ISSYAUTO (Def 149), KIPA2007, capejasmine, LA VANE (Def. 178), Lefossi, 3y-parts, markmotor2015, J.H.T-US, KEMIMOTO (DEF 170), mata*parts, fastshipday and JOYON_MALL |
| 1:2020cv06713 |
| November 12, 2020 |
| US District Court for the Northern District of Illinois |
| Martha M Pacold |
| Trademark |
| 15 U.S.C. § 44 |
| Plaintiff |
Docket Report
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| Document Text |
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| Filing 61 STATUS Report Status Report Regarding Briefing Schedule by KTM AG (Hierl, Michael) |
| Filing 60 STATUS Report by KTM AG (Hierl, Michael) |
Filing 59
ORDER: Defendants ISSYAUTO at Line No. 149; JOYON_MALL at Line No. 165; KEMiMOTO at Line No. 170; and Lefossi at Line No. 180 are hereby dismissed with prejudice and each party shall bear its own attorney's fees and costs pursuant to the Notice of Voluntary Dismissal #53 filed by Plaintiff on 1/6/2021. Defendant J.H.T-US at Line No. 150 is hereby dismissed with prejudice and each party shall bear its own attorney's fees and costs pursuant to the Notice of Voluntary Dismissal #58 filed by Plaintiff on 1/7/2021. Plaintiff KTM Ag and Defendants ISSYAUTO and KEMiMOTO's motion for entry of agreed asset restraint order #35 is denied as moot. Signed by the Honorable Martha M. Pacold on 1/7/2021. Mailed notice (jh, )
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| Filing 58 NOTICE of Voluntary Dismissal by KTM AG Plaintiff's Notice of Voluntary Dismissal (Hierl, Michael) |
| Filing 57 ATTORNEY Appearance for Defendant markmotor2015 by Ge Lei (Lei, Ge) |
| Filing 56 ATTORNEY Appearance for Defendant KIPA2007 by Ge Lei (Lei, Ge) |
| Filing 55 MINUTE entry before the Honorable Martha M. Pacold: The court has reviewed the letter from defendants mcmotoparts (defendant 130) and mfactory (defendant 132) requesting an extension of time in which to obtain counsel and file an opposition brief. #51 . The letter is dated 12/31/2020 but did not appear on the docket until 1/4/2021. The request for an extension of time #51 is granted. Defendants have until 1/19/2021 to obtain counsel and have counsel file an appearance. After defendants' counsel files an appearance, defendants' counsel should consult the court's motion procedures on the court's website, confer with Plaintiff, and submit by 1/22/2021 a joint proposed briefing schedule, per the motion procedures. Defendants risk entry of a default judgment if they do not timely comply with this order. (rao, ) |
| Filing 53 NOTICE of Voluntary Dismissal by KTM AG Plaintiff's Notice of Voluntary Dismissal (Hierl, Michael) |
| Filing 52 ATTORNEY Appearance for Defendants 3y-parts, mata*parts by Ge Lei (Lei, Ge) |
| Filing 54 SURETY BOND in the amount of $ 10,000.00 posted by KTM AG (Document not scanned). (lw, ) |
| Filing 50 MINUTE entry before the Honorable Martha M. Pacold:Defendant LA VANE (defendant 178) has filed a motion to dismiss or alternatively to modify the preliminary injunction #48 . In accordance with the court's motion procedures on the court's website, the hearing noticed for 1/7/2021 #47 is stricken. The parties are directed to consult the court's motion procedures on the court's website, confer with each other, and submit by 1/8/2021 a joint proposed briefing schedule per the motion procedures. If the parties cannot agree on a joint schedule, they may submit separate proposals. If Plaintiff fails to submit or participate in the submission of a briefing schedule, or fails to file a timely response to LA VANE's motion to dismiss, Plaintiff's claims against LA VANE may be dismissed for want of prosecution. (rao, ) |
| Filing 49 MINUTE entry before the Honorable Martha M. Pacold: The court previously ordered Plaintiff to file any reply to Defendant HIAORS's (defendant 139) objection by 12/30/2020 #39 . To date, Plaintiff has not filed a reply. Thus, the court takes the motion for preliminary injunction as to HIAORS under advisement on the basis of the briefs that have been filed, #26 , #33 . Separately, Defendant HIAORS has now filed a motion to dismiss #45 . In accordance with the court's motion procedures on the court's website, the hearing noticed for 1/7/2021 #44 is stricken. The parties are directed to consult the court's motion procedures on the court's website, confer with each other, and submit by 1/8/2021 a joint proposed briefing schedule per the motion procedures. If the parties cannot agree on a joint schedule, they may submit separate proposals. If Plaintiff fails to submit or participate in the submission of a briefing schedule, or fails to file a timely response to HIAORS's motion to dismiss, Plaintiff's claims against HIAORS may be dismissed for want of prosecution. (rao, ) |
| Filing 51 REQUEST for extension of filing a brief in opposition to the Motion for preliminary injunction. (jh, ) |
| Filing 48 MOTION by Defendant LA VANE (Def. 178) to dismiss (Attachments: #1 Memorandum of law, #2 Declaration, #3 Exhibit, #4 Declaration)(Tung, Kevin) |
| Filing 47 NOTICE of Motion by Kevin K. Tung for presentment of before Honorable Martha M. Pacold on 1/7/2021 at 09:30 AM. (Tung, Kevin) |
| Filing 46 ATTORNEY Appearance for Defendant LA VANE (Def. 178) by Kevin K. Tung (Tung, Kevin) |
| Filing 45 MOTION by Defendant HIAORS (Def 139) to dismiss (Attachments: #1 Memorandum of law, #2 Declaration, #3 Exhibit, #4 Declaration)(Tung, Kevin) |
| Filing 44 NOTICE of Motion by Kevin K. Tung for presentment of before Honorable Martha M. Pacold on 1/7/2021 at 09:30 AM. (Tung, Kevin) |
| Filing 43 MINUTE entry before the Honorable Martha M. Pacold:Plaintiff and Defendants ISSYAUTO (defendant 149) and KEMIMOTO (defendant 170) are given until 1/8/2021 to submit the joint status report as directed in this Court's prior minute entry #40 . (rao, ) |
| Filing 42 ATTORNEY Appearance for Defendants capejasmine, fastshipday, gdutfactory by Adam Edward Urbanczyk (Urbanczyk, Adam) |
| Filing 41 MINUTE entry before the Honorable Martha M. Pacold:The court has received the letter from defendants mcmotoparts (defendant 130) and mfactory (defendant 132) #36 , stating that they oppose plaintiff's motion for a preliminary injunction #25 . The letter was entered on the docket on 12/18/2020 and came to the court's attention after the court entered the preliminary injunction order #38 . However, the letter is dated 12/17/2020 and states that it was submitted by the 12/17/2020 deadline for objections set in the court's earlier order #29 . Thus, the court vacates the preliminary injunction #38 in part, only as to defendants mcmotoparts and mfactory, and not as to any other defendant, in order to allow mcmotoparts and mfactory an opportunity to retain counsel and file a brief in opposition to the preliminary injunction. As business entities, mcmotoparts and mfactory may not represent themselves. See, e.g., Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1427 (7th Cir. 1985). Accordingly, mcmotoparts and mfactory must retain counsel if they wish to participate in this action and file a brief in opposition to the motion for preliminary injunction. Mcmotoparts and mfactory have until 1/4/2021 for counsel to file an appearance on the docket and a brief in opposition to the motion for preliminary injunction. Plaintiff has until 1/11/2021 to file a reply. The parties should immediately meet and confer and promptly inform the court by filing a brief joint status report if they seek any changes to the briefing schedule or seek a telephone hearing. (rao, ) |
| Filing 40 MINUTE entry before the Honorable Martha M. Pacold:As to defendants ISSYAUTO (defendant 149) and KEMIMOTO (defendant 170): The court has received the agreed asset restraint motion between plaintiff and defendants ISSYAUTO and KEMIMOTO #35 . The agreed motion does not make clear, however, whether the parties intend the agreed motion to resolve the motion for a preliminary injunction in its entirety, or whether the parties intend to resolve only the asset restraint issues raised by the motion for a preliminary injunction. Accordingly, by 12/22/2020, the parties should submit a joint status report proposing next steps in the case, such as entry of the current agreed asset restraint order, denial as moot of the motion for preliminary injunction as to defendants ISSYAUTO and KEMIMOTO, entry of a revised agreed proposed order addressing all issues raised by the motion for a preliminary injunction (including but not limited to the asset restrain), and/or an agreed briefing schedule on any other objections to the preliminary injunction that defendants ISSYAUTO and KEMIMOTO may wish to raise. (rao, ) |
| Filing 39 MINUTE entry before the Honorable Martha M. Pacold: As to defendant HIAORS (defendant 139): Plaintiff has until 12/30/2020 to file a reply in support of the motion for a preliminary injunction #25 , responding to defendant HIAORS's objections #33 . Plaintiff and HIAORS should immediately meet and confer and promptly inform the court by filing a brief joint status report if they seek any changes to the briefing schedule or seek a telephone hearing. (rao, ) |
| Filing 38 PRELIMINARY INJUNCTION Order signed by the Honorable Martha M. Pacold on 12/18/2020. Mailed notice (jh, ) |
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Filing 37
ORDER: Defendant HIAORS (defendant 139) filed a response #32 to the motion for preliminary injunction, and defendants ISSYAUTO (defendant 149) and KEMIMOTO (defendant 170) have filed an agreed asset restraint motion #35 . As to defendants HIAORS, ISSYAUTO, and KEMIMOTO, the motion for preliminary injunction #25 is continued. See separate minute entries for further proceedings as to defendants HIAORS, ISSYAUTO, and KEMIMOTO. As to all other defendants except for defendants HIAORS, ISSYAUTO, and KEMIMOTO: No other defendant filed an objection to the motion for preliminary injunction. Thus, the motion for preliminary injunction #25 is granted as to all defendants except for defendants HIAORS, ISSYAUTO, and KEMIMOTO. As to all defendants except for defendants HIAORS, ISSYAUTO, and KEMIMOTO, a preliminary injunction is appropriate for the same reasons a TRO was granted, and is unopposed. Enter Preliminary Injunction. The Clerk is directed to unseal any previously sealed documents in this matter. Plaintiff's counsel is directed to add all defendants listed on Schedule A #6 to the court's docket within three business days. Instructions on how to do so may be located on the court's website at www.ilnd.uscourts.gov/instructions. Signed by the Honorable Martha M. Pacold on 12/18/2020. Mailed notice (jh, )
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| Filing 36 LETTER from mcmotoparts & mfactory (Defendant number 130,132) dated 12/17/2020. (jh, ) |
| Filing 35 MOTION by Defendants ISSYAUTO (Def 149), KEMIMOTO (DEF 170)Agreed Asset Restraint Motion (Russell, Erin) |
| Filing 34 AFFIDAVIT by Defendant HIAORS (Def 139) in Opposition to MOTION by Plaintiff KTM AG for preliminary injunction Plaintiff's Motion for Entry of a Preliminary Injunction #25 (Attachments: #1 Exhibit Seller Profile)(Tung, Kevin) |
| Filing 33 MEMORANDUM by HIAORS (Def 139) in Opposition to motion for preliminary injunction #25 (Attachments: #1 Exhibit seller profile)(Tung, Kevin) |
| Filing 32 RESPONSE by HIAORS (Def 139)in Opposition to MOTION by Plaintiff KTM AG for preliminary injunction Plaintiff's Motion for Entry of a Preliminary Injunction #25 (Tung, Kevin) |
| Filing 31 ATTORNEY Appearance for Defendant HIAORS (Def 139) by Kevin K. Tung (Tung, Kevin) |
| Filing 30 ATTORNEY Appearance for Defendants KEMIMOTO (DEF 170), ISSYAUTO (Def 149) by Erin Kathryn Russell (Russell, Erin) |
| Filing 29 MINUTE entry before the Honorable Martha M. Pacold:Plaintiff shall serve defendants with this notice. The court has taken the motion for a preliminary injunction #25 under advisement and will consider the motion unopposed if no defendant appears and objects by 12/17/2020. (rao, ) |
| Filing 28 SUMMONS Returned Executed by KTM AG as to The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto on 12/10/2020, answer due 12/31/2020. (Hierl, Michael) |
| SUMMONS Issued as to Defendant The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto (cm, ) |
| Filing 27 DECLARATION of Michael A. Hierl regarding motion for preliminary injunction #25 (Hierl, Michael) |
| Filing 26 MEMORANDUM by KTM AG in support of motion for preliminary injunction #25 (Hierl, Michael) |
| Filing 25 MOTION by Plaintiff KTM AG for preliminary injunction Plaintiff's Motion for Entry of a Preliminary Injunction (Hierl, Michael) |
| Filing 24 MAILED Trademark report to Patent Trademark Office, Alexandria VA. (jh, ) |
| Filing 23 TEMPORARY RESTRAINING ORDER, Document sealed. Signed by the Honorable Martha M. Pacold on 11/19/2020:(rao, ) |
| Filing 22 MINUTE entry before the Honorable Martha M. Pacold: Plaintiff's motion to exceed page limitation #7 is granted. For the reasons set forth in plaintiff's motions #5 , #8 , the supporting memorandum #9 and the temporary restraining, Plaintiff's motions for leave to file under seal #5 , for a temporary restraining order, including a temporary injunction, a temporary transfer of the defendant domain names, a temporary asset restraint, expedited discovery, and electronic service of process #8 are granted. Plaintiff's filings support proceeding (for the time being) on an ex parte basis. Specifically, were defendants to be informed of this proceeding before a TRO could issue, it is likely assets and websites would be redirected, thus defeating plaintiff's interests in identifying defendants, stopping defendants' infringing conduct, and obtaining an accounting. In addition, the evidence submitted by plaintiff shows a substantial likelihood of success on the merits (including evidence of active infringement and sales into Illinois), the harm to plaintiff is irreparable, and an injunction is in the public interest. Electronic service of process does not violate any treaty and is consistent with due process because it effectively communicates the pendency of this action to defendants. As other judges in this district have noted, there may be reason to question both the propriety of the joinder of all defendants in this one action and whether plaintiff genuinely intends to pursue an accounting (which plaintiff asserts as justification for an asset freeze), but at this preliminary stage, the court is persuaded that plaintiff has provided sufficient evidence of coordinated activity and the prospect of an accounting to justify the requested relief as to all defendants. Expedited discovery is warranted to identify defendants and to implement the asset freeze. If any defendant appears and objects, the court will revisit the asset freeze and joinder. Plaintiff shall deposit with the Clerk of Court ten thousand dollars ($10,000.00), either cash or surety bond, as security. Enter Sealed Temporary Restraining Order. (rao, ) |
| Filing 21 Notice of Claims Involving Trademarks by KTM AG (Hierl, Michael) |
| Filing 20 EXHIBIT 2 Part 11 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 19 EXHIBIT 2 Part 10 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 18 EXHIBIT 2 Part 9 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 17 EXHIBIT 2 Part 8 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 16 EXHIBIT 2 Part 7 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 15 EXHIBIT 2 Part 6 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 14 EXHIBIT 2 Part 5 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 13 EXHIBIT 2 Part 4 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 12 EXHIBIT 2 Part 3 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 11 EXHIBIT 2 Part 2 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 10 EXHIBIT 2 Part 1 of Trunkenpolz/Sigl Declaration by Plaintiff KTM AG. (Hierl, Michael) Modified on 12/22/2020 (jh, ). |
| Filing 9 MEMORANDUM by KTM AG in support of motion for temporary restraining order, #8 (Attachments: #1 Declaration Trunkenpolz/Sigl Declaration, #2 Exhibit 1, #3 Declaration Hierl Declaration, #4 Exhibit Hierl Exhibit 1, #5 Exhibit Hierl Exhibit 2, #6 Exhibit Hierl Exhibit 3)(Hierl, Michael) |
| Filing 8 MOTION by Plaintiff KTM AG for temporary restraining order Plaintiff's Ex Parte Motion for Entry of a Temporary Restraining Order, Including a Temporary Injunction, a Temporary Transfer of the Defendant Domain Names, a Temporary Asset Restraint, Expedited Discovery, and Service of Process by Email and/or Electronic Publication (Hierl, Michael) |
| Filing 7 MOTION by Plaintiff KTM AG for leave to file excess pages Plaintiff's Motion to Exceed Page Limitation (Hierl, Michael) |
| Filing 6 SEALED DOCUMENT by Plaintiff KTM AG Sealed Schedule A (Hierl, Michael) |
| Filing 5 MOTION by Plaintiff KTM AG to seal document Plaintiff's Motion for Leave to File Under Seal (Hierl, Michael) |
| Filing 4 ATTORNEY Appearance for Plaintiff KTM AG by William Benjamin Kalbac (Kalbac, William) |
| Filing 3 ATTORNEY Appearance for Plaintiff KTM AG by Michael A. Hierl (Hierl, Michael) |
| Filing 2 CIVIL Cover Sheet (Hierl, Michael) |
| Filing 1 COMPLAINT filed by KTM AG; Jury Demand. Filing fee $ 400, receipt number 0752-17638068. (Attachments: #1 Exhibit 1)(Hierl, Michael) |
| CASE ASSIGNED to the Honorable Martha M. Pacold. Designated as Magistrate Judge the Honorable Jeffrey Cole. Case assignment: Random assignment. (lxk, ) |
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