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 |
| 1:2021cv01380 |
| March 12, 2021 |
| US District Court for the Northern District of Illinois |
| John F Kness |
| Trademark |
| 15 U.S.C. § 44 |
| Plaintiff |
Docket Report
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| Document Text |
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| Filing 31 MINUTE entry before the Honorable John F. Kness: Before the Court is Plaintiff's motion #28 for entry of a preliminary injunction. In connection with that motion, Plaintiff must serve all Defendants with the following statement: "The Court has taken the motion for a preliminary injunction under advisement and will consider the motion unopposed if no Defendant appears and objects on or before 5/14/2021." For the reasons stated in the Court's orders entering and extending the TRO, as well as in Plaintiff's earlier motion #24 to extend the TRO, the TRO is further extended to and including the date on which the Court adjudicates the motion for a preliminary injunction. See H-D Mich., LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 843-45 (7th Cir. 2012). Because this extension exceeds the maximum duration for a TRO under FRCP 65(b), this extension "becomes in effect a preliminary injunction that is appealable, but the order remains effective." Id. at 844. Mailed notice (ef, ) |
| Filing 30 DECLARATION of Michael A. Hierl regarding motion for preliminary injunction #28 (Hierl, Michael) |
| Filing 29 MEMORANDUM by KTM AG in support of motion for preliminary injunction #28 (Hierl, Michael) |
| Filing 28 MOTION by Plaintiff KTM AG for preliminary injunction Plaintiff's Motion for Entry of a Preliminary Injunction (Hierl, Michael) |
| Filing 27 SURETY BOND in the amount of $ $10,000.00 posted by KTM AG (tg, ) |
Filing 26
ORDER TO EXTEND THE TEMPORARY RESTRAINING ORDER signed by the Honorable John F. Kness on 4/29/2021. Mailed notice(ef, )
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| Filing 25 MINUTE entry before the Honorable John F. Kness: Plaintiff's Ex Parte Motion to extend the temporary restraining order #24 is granted. Enter order. Mailed notice (ef, ) |
| Filing 24 MOTION by Plaintiff KTM AG for extension of time Plaintiff's Ex Parte Motion to Extend the Temporary Restraining Order (Hierl, Michael) |
| Filing 23 SEALED Order Signed by the Honorable John F. Kness on 4/13/2021. (rp, ) |
| Filing 22 MINUTE entry before the Honorable John F. Kness: Plaintiff's motion for leave to file under seal #5 , motion for leave to file excess pages #7 , and ex parte motion for a temporary restraining order, electronic service of process, and other relief #8 are granted in part. Plaintiff's submissions (including the declarations of Michael Hierl, Hubert Trunkenpolz, and Viktor Sigl) establish that, were Defendants to learn of these proceedings before the execution of Plaintiff's requested preliminary injunctive relief, there is a significant risk that Defendants could destroy relevant documentary evidence and hide or transfer assets beyond the reach of the Court. Accordingly, subject to unsealing at an appropriate time, Plaintiff may for now file under seal the documents identified in the motion to seal and appearing at docket entries #6 and [10-17]. The Temporary Restraining Order being entered along with this minute order will also be placed under seal. In addition, for the purpose of the motions cited above, Plaintiff's filings support proceeding (for the time being) on an ex parte basis under FRCP 65(b)(1). Specifically, and as noted above, 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 Court finds that it has personal jurisdiction over the Defendants because they directly target their business activities toward consumers in the United States, including Illinois. Specifically, Defendants have targeted sales to Illinois residents by setting up and operating e-commerce stores that target United States consumers using one or more Seller Aliases, offer shipping to the United States, including Illinois, accept payment in U.S. dollars, and have sold products using infringing and counterfeit versions of Plaintiff's trademarks to residents of Illinois. The evidence presented to the Court also shows that Plaintiff has demonstrated a likelihood of success on the merits (including evidence of active infringement and sales into Illinois), that the harm to plaintiff is irreparable, and that an injunction is in the public interest. An injunction serves the public interest because of the consumer confusion caused by counterfeit goods, and there is no countervailing harm to defendants from an order directing them to stop infringement. 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 will 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. A temporary transfer of domain names is appropriate to prevent infringing conduct. 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. Enter Sealed Temporary Restraining Order. Mailed notice (ef, ) |
| Filing 21 ATTORNEY Appearance for Plaintiff KTM AG by Robert Payton Mcmurray (Mcmurray, Robert) |
| Filing 20 MAILED to plaintiff(s) counsel Lanham Mediation Program materials. (ph, ) |
| Filing 19 MAILED Trademark report to Patent Trademark Office, Alexandria VA (Attachments: #1 (List of Trademarks)) (ph, ) |
| Filing 18 Notice of Claims Involving Trademarks by KTM AG (Hierl, Michael) |
| Filing 17 SEALED DOCUMENT by Plaintiff KTM AG Exhibit 2 Part 8 of Trunkenpolz/Sigl Declaration (Hierl, Michael) |
| Filing 16 SEALED DOCUMENT by Plaintiff KTM AG Exhibit 2 Part 7 of Trunkenpolz/Sigl Declaration (Hierl, Michael) |
| Filing 15 SEALED DOCUMENT by Plaintiff KTM AG Exhibit 2 Part 6 of Trunkenpolz/Sigl Declaration (Hierl, Michael) |
| Filing 14 SEALED DOCUMENT by Plaintiff KTM AG Exhibit 2 Part 5 of Trunkenpolz/Sigl Declaration (Hierl, Michael) |
| Filing 13 SEALED DOCUMENT by Plaintiff KTM AG Exhibit 2 Part 4 of Trunkenpolz/Sigl Declaration (Hierl, Michael) |
| Filing 12 SEALED DOCUMENT by Plaintiff KTM AG Exhibit 2 Part 3 of Trunkenpolz/Sigl Declaration (Hierl, Michael) |
| Filing 11 SEALED DOCUMENT by Plaintiff KTM AG Exhibit 2 Part 2 of Trunkenpolz/Sigl Declaration (Hierl, Michael) |
| Filing 10 SEALED DOCUMENT by Plaintiff KTM AG Exhibit 2 Part 1 of Trunkenpolz/Sigl Declaration (Hierl, Michael) |
| 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 $ 402, receipt number 0752-18014669. (Attachments: #1 Exhibit 1)(Hierl, Michael) |
| CASE ASSIGNED to the Honorable John F. Kness. Designated as Magistrate Judge the Honorable Jeffrey T. Gilbert. Case assignment: Random assignment. (crl, ) |
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| Plaintiff: KTM AG | |
| Represented By: | Michael A. Hierl |
| Represented By: | William Benjamin Kalbac |
| Represented By: | Robert Payton Mcmurray |
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| Defendant: The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto | |
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