ABC Corp. v. Tomoloo Official, Appeal Nos. 2021-2277, -2355, -2150 (Fed. Cir. Oct. 28, 2022)ABC Corp. v. eBay, Inc., Appeal No. 2022-1071 (Fed. Cir. Oct. 28, 2022)The following summary covers two decisions issued the same day, dealing with preliminary injunctions issued from the U.S. District Court for the Northern District of Illinois in a single litigation. In one of those decisions, the Federal Circuit examined the notice requirement under FRCP 65(a) and held it was not met. In the other decision, the Federal Circuit examined the merits of the preliminary injunction, and reversed the district court based on its erroneous application of the “likelihood of success on the merits” factor.Background ABC Corp. owns four design patents related to hoverboards. Appellants sell Gyroor-branded hoverboards. ABC brought suit against appellants claiming that products sold by appellants infringed ABC’s patents. Plaintiffs sought a preliminary injunction, which the district court granted (the “2020 Preliminary Injunction”). The 2020 Preliminary Injunction included named defendant Gyroor-US, though it had not yet been served with process and was not given advance notice under Federal Rule of Civil Procedure 65(a) of the request for a preliminary injunction. The 2020 Preliminary Injunction also covered certain defendants listed in Schedule A.ABC later filed a motion reflecting their concern about infringing activity by entities that were not named

The story of civil seizure and the DTSA does not end there. Victims of trade secret theft have another route to seizure in relation to allegations under the DTSA: Fed. R. Civ. P. 65. Under Rule 65, a judge may grant a seizure request as part of a temporary restraining order (TRO) or preliminary injunction related to allegations of trade secret theft under the DTSA, and thus potentially avoid the “extraordinary circumstances” requirement of the DTSA civil seizure provision. This strategy was recently employed in the Northern District of Indiana, in Magnesita Refractories Co. v. Surendra Mishra, 2:16-CV-524 (N.D. Ind. Jan. 25, 2017).

This article examines the process for obtaining injunctive relief and the standard by which courts judge whether to grant injunctive relief.Injunctive relief takes two forms in both federal and Tennessee state actions. Both the Federal and Tennessee Rules of Civil Procedure provide a mechanism for obtaining immediate, temporally limited relief - the temporary restraining order. See Fed. R. Civ. P. 65(b); Tenn. R. Civ. P. 65.03. And, both the Federal and Tennessee Rules of Civil Procedure provide a mechanism for obtaining relief pending the court's resolution of the merits of the case - the preliminary injunction in federal courts and the temporary injunction in Tennessee state courts.

Fed. R. Civ. P. 65 allows a district court to issue a temporary restraining order (TRO) and/or a preliminary injunction to maintain the status quo and avoid irreparable harm while a suit is pending. The process is intended to move quickly, and in the EDVA, it can move very quickly. In a recent example, an EDVA judge resolved a motion for preliminary injunction in a week, ordering the defendant to respond six days after the motion was filed and ruling on the motion from the bench the following day. See Northern Virginia Citizens As’n., Inc. v. Federal Highway Admin., et al., Case No. 1:23-cv-00356-LMB-IDD (E.D. Va. April 7, 2023) (ECF No. 40).Given the accelerated speed of the process, particularly in the EDVA, below is a discussion of common questions relating to Rule 65 motions in the EDVA:Request a TRO or a Preliminary Injunction or Both?A plaintiff is not required to file a motion under Rule 65 when it files its complaint, but it cannot wait long without undermining its argument that it is suffering

ss’ns Identified on Schedule “A”, Case No. 21-2150 (Fed. Cir. Oct. 28, 2022) (Taranto, Dyk, Stoll, JJ.)On August 17, 2020, ABC Corporation I and ABC Corporation II (collectively, ABC) brought a design patent infringement action asserting four “hoverboard” design patents against several online merchants. The ABC patents claim designs for handle-less, two-wheeled, motorized, stand-on vehicles commonly referred to as hoverboards. Attached to its original and amended complaints, ABC provided a list of defendants in a Schedule A that was amended throughout the proceedings as new defendants were identified. Gyroor-US was an originally named defendant on Schedule A, but it was not served with the complaint and summons until January 29, 2021.On November 24, 2020, the district court granted ABC’s November 20, 2020, motion for a preliminary injunction against the defendants then listed on Schedule A, including Gyroor-US, which had not yet been served and was not given notice of the motion under Fed. R. Civ. P. 65(a). On May 24, 2021, the court also granted ABC’s May 6, 2021, motion to amend Schedule A to add GaodeshangUS, Fengchi-US and Urbanmax, binding them to the 2020 preliminary injunction even though they too had not received Rule 65(a) notice and were not served with process until June 25, 2021. GaodeshangUS filed a notice of appeal immediately following the court’s May 24 order. After several unsuccessful motions to vacate the 2020 preliminary injunction for lack of notice, Fengchi-US, Urbanmax and Gyroor-US also filed notices of appeal.The Federal Circuit first determined that it had jurisdiction to hear the three appeals by GaodeshangUS, Fengchi-US, Urbanmax and Gyroor-US under 28 U.S.C. § 1292(c)(1), which grants the Federal Circuit exclusive jurisdiction of an appeal from an “interlocutory order[] . . . granting, continuing, modifying, refusing or dissolving [an] injunction[], or refusing to dissolve or modify [an] injunction[]” in any case over which the Federal Circuit would have jur

The full text of the analysis is below and used with permission from the publication.Taaffe vs. Robinhood Markets, Inc., No. 8:20-cv-513 (M.D. Fla., 3/31/20)*A party seeking injunctive relief in a putative class action under FRCP 23(d) need not satisfy the requirements of FRCP 65.**Instead, the movant must make a clear evidentiary showing that (a) a particular form of communication has occurred or is threatened to occur and (b) the communication is an abuse, threatening the proper functioning of the litigation.Defendants provide an internet/cloud-based trading platform to customers through a mobile application.

; UPC Agreement, Articles 60(7), 60(9), 62(5), 82(2).52See Apple, Inc. v. Samsung Elecs. Co., Ltd., 678 F.3d 1314, 1323 (Fed. Cir. 2012).53Trebro Mfg., Inc. v. Firefly Eqp’t, LLC, 748 F.3d 1159, 1165 (Fed. Cir. 2014) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)).54Apple Inc. v. Samsung Elecs. Co., Ltd., 695 F.3d 1370, 1373-74 (Fed. Cir. 2012) (citing Winter, 555 U.S. at 20).55Apple, 695 F.3d at 1373 (quoting Winter, 555 U.S. at 20).56AstraZeneca LP v. Apotex, Inc., 633 F.3d 1042, 1050 (Fed. Cir. 2010) (citation omitted).57See, e.g., Trebro, 748 F.3d at 1166-70.58Apple, 695 F.3d at 1373-74 (citations omitted). In view of the Supreme Court’s eBay decision, courts no longer presume irreparable harm upon a finding of a likelihood of success on the merits. See Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1148-50 (Fed. Cir. 2011).59Apple, 695 F.3d at 1373-74 (quoting Winter, 555 U.S. at 20).60Apple, 695 F.3d at 1374 (quoting Winter, 555 U.S. at 20).61See Federal Rules of Civil Procedure, Rule 65(c). This requirement in Rule 65(c) to post a bond also applies to the grant of an ex parte temporary restraining order pending a preliminary injunction hearing.62 Federal Rules of Civil Procedure, Rule 65(a)(1); Digital Equipment Corp. v. Emulex Corp., 805 F.2d 380, 383 n.3 (Fed. Cir. 1986). In contrast, a U.S. court may issue a temporary restraining order without notice to the adverse party if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Federal Rules of Civil Procedure, Rule 65(b)(1).63 Federal Rules of Civil Procedure, Rules 52(a)(2), 65(d)(1). If the court grants a preliminary injunction, it must also determine the amount of the bond the patentee must post.64 UPC Agreement, Article 62(2); UPC Rules of Procedure, Rule 211(3).65 EU Directive 2004/48/EC, Articles 3(1), 3(2).

ABC CORPORATION I v. PARTNERSHIP AND UNINCORPORATED ASSOCIATIONSBefore Dyk, Taranto, and Stoll. Appeal from the United States District Court for the Northern District of Illinois.Summary: Failure to provide advance notice under Federal Rule of Civil Procedure 65(a) leads to vacating of preliminary injunction.ABC Corporation (“ABC”) asserted four design patents against several business entities selling hoverboards online. ABC identified the defendants through a Schedule A (which changed over time) attached to the original and amended complaints. On November 24, 2020, the district court entered a preliminary injunction against the then named defendants which included Gyroor-US who had not yet been served with process. On May 24, 2020, the district court granted ABC’s motion to amend the Schedule A to add GaodeshangUS, Fengchi-US, and Urbanmax as defendants bound by the preliminary injunction. Neither entity had been served with process nor received a Rule 65(a) notice. These entities (collectively, “Defendants”) sought relief from the preliminary injunction, citing inadequate notice under Rule 65(a). The District Court denied relief and the Defendants appealed.On appeal, the Federal Circuit vacated the 2020 Preliminary Injunction from its issuance

Despite even the failure to return company property, the court did not grant the plaintiffs’ request for a seizure order under the DTSA. The issue stopping the court was the fact that the DTSA does not allow a seizure order where an injunction or restraining order under Federal Rule of Civil Procedure 65 is adequate. Here, the court’s order included requiring the defendant to turn over the devices at issue to the court at a future hearing date and prohibiting them from being accessed or modified in the meantime.

The US Court of Appeals for the Fourth Circuit vacated and remanded a district court ruling, finding that the district court failed to properly apply the Federal Rules of Civil Procedure (FRCP) in granting injunctive relief. Wudi Industrial (Shanghai) Co., Ltd. v. Wong et al., Case Nos. 22-1495; -1662 (4th Cir. June 5, 2023) (Gregory, King, JJ.) (Rushing, J., dissenting). The dissent argued that the district court simply entered a permissible order enforcing a settlement agreement between the parties.The FRCP outlines the necessary criteria and steps for courts to grant injunctive relief. FRCP 52(a)(2) requires courts to state the findings and conclusions that support their actions. FRCP 65(d) requires courts to state the reasons why the injunction was issued, state the injunction’s terms specifically or describe the restrained/required act(s) in detail. Per the Supreme Court’s Ebay test, a party seeking injunctive relief must demonstrate the following:It has suffered an irreparable injury.Remedies available at law, such as monetary damages, are inadequate to compensate for that injury.Considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted.The public interest would not be disserved by an injunction.Wudi Industrial competes with Wai L. Wong and his business entity GT Omega Racing (collectively, GTOR) in marketing video gaming chairs and other products. GTOR challenged Wudi’s GTRACING trademark registration in a cancellation proceeding at the Trademark Trial & Appeal Board, alleging that the mark encroached on GTOR’s earlier use of GT OMEGA RACING. The Board ruled in favor of GTOR, and Wudi initiated a first appeal at the dis