Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 1 of 21 PageID #:369
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`SHILONG CAI,
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`Plaintiff,
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`v.
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`LIN QIUGUI D/B/A ESTMY STORE,
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`Defendant.
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`Case No. 1:22-cv-04530
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`Honorable Robert W. Gettleman
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S
`MOTION FOR PRELIMINARY INJUNCTION
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`Defendant, Qiugui Lin and ESTMY Store (“Defendant”), through the undersigned
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`counsel, opposes Plaintiff’s Motion for Preliminary Injunction. Plaintiff has failed to
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`demonstrate entitlement to the extraordinary relief sought. For the reasons set forth herein,
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`Plaintiff’s motion should be denied.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`SHILONG CAI,
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`Plaintiff,
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`v.
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`LIN QIUGUI D/B/A ESTMY STORE,
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`Defendant.
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`Case No. 1:22-cv-04530
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`Honorable Robert W. Gettleman
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S
`MOTION FOR PRELIMINARY INJUNCTION
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`Defendant, Qiugui Lin and ESTMY Store (“Defendant”), through the undersigned
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`counsel, opposes Plaintiff’s Motion for Preliminary Injunction. Plaintiff has failed to
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`demonstrate entitlement to the extraordinary relief sought. For the reasons set forth herein,
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`Plaintiff’s motion should be denied.
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 2 of 21 PageID #:370
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`I.
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`BACKGROUND
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`Plaintiff Shilong Cai (“Plaintiff”) bring this action against Defendant asserting direct
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`copyright infringement and willful copyright infringement [Dkt. No. 1]. On or around
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`August 26, 2022, this Court issued a temporary restraining order. [Dkt. No. 5]. On or around
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`August 26, 2022, due to the temporary restraining order, Defendant’s Amazon listings were
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`forcefully taken down, including but not limited to ASINs B09BZ3W948, B09DD1VS1R,
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`B09BYX62N4, B09BZ79RDG, B0B6GYH495, and B0B7RRF3DN. On September 7,
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`2022, the TRO was extended an additional fourteen days, through and including September
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`23, 2022. [Dkt. Nos. 9-11]. On September 23, 2022, Plaintiff filed an Amended Complaint
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`and did not seek an extension of the TRO. [Dkt. No. 16]. The TRO expired on September
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`23, 2022. This has substantially interfered with Defendant’s businesses and caused
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`Defendant significant loss. On October 7, 2022, Plaintiff filed a revised motion for
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`preliminary injunction adding additional restrictions for another alleged copyright. [Dkt. No.
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`23]. On October 11, 2022, Defendant filed an answer, affirmative defense, and
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`counterclaims.
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`II.
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`STATEMENT OF FACTS
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`Qiugui Lin in an individual who operates online Amazon marketplaces under the
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`ESTMY Store. Qiugui Lin is the registered owner of the Christmas Tree Grid LQG
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`Copyright (“Original Tree Copyright” or “Defendant’s Work”), covered by U.S. Copyright
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`Registration No. VA0002292450. Qiugui Lin was granted the Christmas Tree Grid LQG
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`Copyright with an Effective Date of Registration on October 14, 2021.
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`Shilong Cai is an individual residing in Hangzhou, People’s Republic of China.
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`Shilong Cai is the registered owner of the Merry Christmas-13 Copyright (“Colored Tree
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 3 of 21 PageID #:371
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`Copyright” or “Plaintiff’s Work” or “Plaintiff’s Derivative Work”), covered by U.S.
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`Copyright Registration No. VA0002279356. Shilong Cai was granted the Merry Christmas-
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`13 Copyright with an Effective Date of Registration on November 11, 2021.
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`III. ARGUMENTS
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`For a court to grant a preliminary injunction, a plaintiff must show “(1) a reasonable
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`likelihood of success on the merits; (2) irreparable harm if an injunction is not granted; (3)
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`a balance of hardships tipping in its favor; and (4) the injunction's favorable impact on the
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`public interest.” Amphenol T&M Antennas, Inc. v. Centurion Int'l, Inc., No. 00 C 4298, 2001
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`U.S. Dist. LEXIS 20874, at *2 (N.D. Ill. Dec. 14, 2001).
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`This Court should deny Plaintiff’s motion for preliminary injunction because
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`Plaintiff fails to establish a reasonable likelihood of success on copyright infringement and
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`state law deceptive trade practice. Moreover, Plaintiff’s motion should be denied because
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`Plaintiff will not suffer any irreparable harm and Defendant’s irreparable harm from a
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`preliminary injunction outweighs any potential harm to Plaintiff.
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`IV.
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`Plaintiff does not show a likelihood of success on the merits.
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`A.
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`Copyright Infringement.
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`Plaintiff fails to show a likelihood of success on the merits for copyright
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`infringement and thus, is not entitled to a preliminary injunction. In order to establish
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`copyright infringement or a likelihood of success on the merits, a plaintiff must prove: “(1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`original.” Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
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`1.
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` Plaintiff does not have a valid copyright.
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`3
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 4 of 21 PageID #:372
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`Plaintiff’s motion for preliminary injunction should be denied because Plaintiff does
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`not have a valid copyright and therefore cannot establish a likelihood of success on the
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`merits. Although Plaintiff submitted a Merry Christmas-13 Copyright Registration
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`(VA0002279356) which constitutes prima facie evidence of a valid copyright, Plaintiff’s
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`Colored Tree Copyright is not a valid copyright because it is an unlawful, infringing use of
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`Defendant’s Original Tree Copyright, and it is not original.
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`a)
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`Plaintiff’s Copyright is an unlawful, infringing use of
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`Defendant’s Original Tree Copyright.
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`Plaintiff’s Colored Tree Copyright is not a valid copyright because it is an unlawful,
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`infringing use of Defendant’s Original Tree Copyright. According to 17 USC §106, “the
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`owner of copyright under this title has the exclusive rights to do and to authorize any of the
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`following:…(2) to prepare derivative works based upon the copyrighted work.”
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`In Midway Mfg. Co. v. Artic Int’l, Inc., the court states,“if the latter work does
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`incorporate sufficient portions of the pre-existing work it has infringed the right to prepare
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`derivative works. By forbidding a third person from creating a work based on a pre-existing
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`copyrighted work, the author is assured that he will reap the profits from his artistic
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`contribution in accordance with the policies of the Act.” No. 80 C 5863, 1981 U.S. Dist.
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`LEXIS 16881, at *24-25 (N.D. Ill. June 2, 1981)(Discussing 2 Nimmer on Copyright
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`§8.09(A)).
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`Here, on March 12, 2020, Defendant created and filed a Copyright Application (See
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`Exhibit A) for the original work seen below:
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 5 of 21 PageID #:373
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`Image 1: Defendant’s Work.
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`Defendant was granted a Copyright in the work pictured above, with an Effective
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`Date of Registration on October 14, 2021. (See Exhibit B). Thereafter, Plaintiff filed and
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`was granted a Copyright with an Effective Date of Registration on November 11, 2021. (See
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`Exhibit C). Plaintiff’s Work is pictured below:
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`Image 2: Plaintiff’s Work.
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`Plaintiff argues that Defendant’s Original Tree Copyright was fraudulent and/or
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 6 of 21 PageID #:374
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`Defendant’s creation date is fraudulent in nature. As provided by Plaintiff [Dkt. No. 24], a
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`timeline of events is shown below:
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`As seen above, Defendant clearly registered Defendant’s Original Tree Copyright
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`before Plaintiff registered the Plaintiff’s Colored Christmas Tree. Indeed, the copyright
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`system is not a first-to-file system like the Patent Office, yet Plaintiff claims to be a victim
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`of a “registration race.” However, the timeline provided by Plaintiff clearly shows that
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`Plaintiff lost the more important race too: the first to actually create and publish a work.
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`Plaintiff’s claim essentially boils down to asking this Court to afford more
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`evidentiary weight to Plaintiff’s creation date over Defendant’s creation date. In support of
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`Plaintiff’s creation date, Plaintiff submitted an Adobe Photoshop file bearing a creation date
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`of September 14, 2020. Thereafter, less than one week later, Plaintiff provides an Amazon
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`listing publication date of September 20, 2020. So Plaintiff claims to have created a new,
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`original work via Adobe Photoshop and thereafter fixed the work into a tangible medium,
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`manufactured this tangible medium, and sold this tangible medium within six days.
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`Thereafter, Plaintiff did not file for copyright registration for more than a year. It is unlikely
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`that Plaintiff was able to create, market, and sell products with this copyright within such a
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`period unless the image had already been created by Defendant. It is far more likely that
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`Plaintiff copied Defendant’s existing works, immediately produce the goods, and attempted
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`to make a quick profit.
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`6
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 7 of 21 PageID #:375
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`As seen above, Defendant has produced a valid copyright, outlining an earlier date
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`of creation and publication. Moreover, Defendant spent much time creating, revising, and
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`perfecting Defendant’s Original Tree Copyright. (See Exhibit D). As seen in Exhibit D,
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`Defendant had a creative/inventive process; however, Plaintiff expects this Court to believe
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`they created the work instantaneously via Photoshop.
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`Moreover, Plaintiff violently and distastefully attacks Defendant’s credibility. To
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`begin, Defendant is of upstanding character and has been involved in the creative arts
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`world for a long time. In fact, Defendant won a hand painted art competition in 2020. (See
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`Exhibit
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`E
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`and
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`http://hlnv.com/html/news/7438bcf34b42fa8e4b0d89eb.html).
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`Additionally, Plaintiff attacks Defendant’s credibility, stating it is “preposterous and
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`nonsensical” that both works contain the same basic font of “Joshico.” However, Joshico is
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`one of the most common used fonts in the décor and accessory design world. Joshico is a
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`calligraphy font used that is well-known for cards, posters, quotes, and other décor phrases.
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`With a simple search of “Merry Christmas Décor” on Amazon and reverse Google image
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`search of “Merry Christmas” in Joshico, just some of the results are presented:
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`Plaintiff’s “Merry
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`Christmas”
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`“Merry Christmas” in
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`Joshico
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 8 of 21 PageID #:376
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`Other Easily
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`Accessible “Merry
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`Christmas” Décor
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 9 of 21 PageID #:377
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`The images presented above are by no means exhaustive. The exact website
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`screenshot documents are presented in Exhibit H. It is far more preposterous and nonsensical
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`to believe that Plaintiff is the only home décor seller using the common Joshico font.
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`In sum, Plaintiff’s attack on Defendant’s credibility is far from the truth and likely a
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`deflection of Plaintiff’s own poor credibility and fraudulent practices. Thus, Plaintiff’s
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`Colored Tree Copyright is an unlawful, infringement of Defendant’s Original Tree
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`Copyright, and Plaintiff’s Work is not entitled to copyright protection. Therefore, this Court
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`should deny Plaintiff’s motion for preliminary injunction because Plaintiff cannot establish
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`a likelihood of success on the merits for copyright infringement.
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`b)
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`Plaintiff’s Copyright is not original.
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`9
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 10 of 21 PageID #:378
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`Second, assuming this Court takes Defendant’s copyright and creation as credible,
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`Plaintiff’s Colored Tree Copyright is not a valid copyright because it is not original. A
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`“derivative work, based in part or entirely upon preexisting works, may receive copyright
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`protection but it must still satisfy the requirement of originality.” Theotokatos v. Sara Lee
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`Pers. Prods., 971 F. Supp. 332, 338 (N.D. Ill. 1997). Article 1302(1) of the U.S. Copyright
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`Act stipulates that a design that lacks creativity is not eligible for protection by the Copyright
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`Act.
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`In fact, the “Seventh Circuit has narrowed the test somewhat by requiring that the
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`derivative work be ‘substantially different’ from the underlying work in order to be
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`copyrightable.” Id. Expanding upon the “substantially different” requirement, the Seventh
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`Circuit also noted the originality in a derivative work be an “expressive variation from
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`public-domain or other existing works to enable the new work to be readily distinguished
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`from its predecessors.” Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513, 516 (7th Cir.
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`2009).
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`To analyze whether Plaintiff’s Derivative Work is “readily distinguishable” from
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`Defendant’s Original Work, both images are provided below:
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`10
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 11 of 21 PageID #:379
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` (Defendant’s Work)
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`(Plaintiff’s Derivative Work)
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`As described above, Plaintiff’s Work is substantially similar to Defendant’s Work
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`and does not provide any distinguishable or sufficient difference. Some of the similarities
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`between the works include: a grid/checkered border, five trees resembling Evergreens, the
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`layering in which the trees are presented, the words under the trees, the stylized font of
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`“Merry Christmas”, the tree textures (both grid/checkered and shading), the same tiers of
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`foliage on each tree, the spacing between each of the trunk, and the spacing between the tips
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`of the trees. In fact, the only discernable difference in Plaintiff’s Work is the addition of the
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`most common Christmas colors: red and green.
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`Plaintiff’s Derivative Work (which was created, published and registered after
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`Defendant’s Work) does not add any original elements to Defendant’s Work, nor does
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`Plaintiff’s Work provide an expressive variation to differentiate itself or prove to be readily
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`distinguishable from Defendant’s Work. Thus, Plaintiff’s Work is not original nor entitled
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`to copyright protection, and Plaintiff does not show a likelihood of success of the merits of
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`copyright infringement. Therefore, this Court should deny Plaintiff’s motion for preliminary
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 12 of 21 PageID #:380
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`injunction.
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`2.
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`Defendant did not copy constituent elements of Plaintiff’s Work
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`that are original.
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`Next, assuming arguendo that Plaintiff does have a copyright, the second prong of
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`the Feist test above provides a plaintiff must prove: (1) that a defendant copied from
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`plaintiff’s copyrighted work; and (2) the copying (assumed to be proved) went so far as to
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`constitute improper appropriation. 499 U.S. 340, 361 (1991).
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`Here, Plaintiff has failed to submit any direct evidence of Defendant copying
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`Plaintiff’s Work. Although circumstantial evidence from which the trier of facts may
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`reasonably infer copying is considered, it is an unnecessary inquiry. It is fruitless to
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`determine whether there is enough evidence to say Defendant copied because Plaintiff has
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`failed to demonstrate the second element: the copying (assumed to be proved) went so far
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`as to constitute improper appropriation.
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`a)
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`Defendant’s copying (assumed to be proved) did not
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`constitute improper appropriation.
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`As the Supreme Court has stated, “not all copying, however, is copyright
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`infringement.” Id. at 361. In fact, “defendant may copy freely those elements of plaintiff's
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`work that copyright law does not protect” Atari Games Corp. v. Nintendo of Am., Inc., 975
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`F.2d 832, 839 (Fed. Cir. 1992).
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`According to 17 USC §103(b), “The copyright in a compilation or derivative work
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`extends only to the material contributed by the author of such work, as distinguished from
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`the preexisting material employed in the work, and does not imply any exclusive right in the
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`preexisting material.”
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`12
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 13 of 21 PageID #:381
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`Here, Plaintiff’s Works are only entitled to a low threshold of protection because the
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`works contains little to no additional, original elements. As discussed in detail above,
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`Plaintiff’s Colored Tree Copyright only adds basic colors of green and red to Defendant’s
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`Original Work. Thus, if Plaintiff were entitled to any protection, the protection extends only
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`to the material contributed by Plaintiff. Here, the material contributed by Plaintiff is the
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`addition of red and green color.
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`However, the Copyright Office specifically provides examples of types of works or
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`contributions that are not entitled to copyright protection, including “words and short
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`phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of
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`typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.”
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`37 CFR §202.1(a). For example, in Darden v. Peters, the court dealt with a derivative work
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`regarding maps, and stated “additions to the preexisting maps such as color, shading, and
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`labels using standard fonts and shapes fall within the narrow category of works that lack
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`even a minimum level of creativity” 488 F.3d 277, 287 (4th Cir. 2007).
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`Thus, the only element in Plaintiff’s Work possibly entitled to any copyright
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`protection is specifically outlined by the Copyright Office as unoriginal and not entitled to
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`copyright protection. Therefore, Defendant’s copying (assumed to be proved) did not
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`constitute any improper appropriation, and the motion for preliminary injunction should be
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`denied.
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`B.
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`State Law Deceptive Trade Practice.
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`Plaintiff fails to show a likelihood of success on the merits for state law deceptive
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`trade practice and thus, is not entitled to a preliminary injunction. Plaintiff fails to establish
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`any right to the works allegedly misappropriated by Defendant, Plaintiff does not provide
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 14 of 21 PageID #:382
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`any factual evidence of confusion, and the state law claim is preempted by the Copyright
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`Act.
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`“The customary standards governing the issuance of preliminary injunctions should
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`continue to be followed in determining whether to grant preliminary injunctive relief
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`pursuant to section 3 of the [Uniform Deceptive Trade Practices] Act.” Bally Mfg. Corp. v.
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`JS&A Grp., Inc., 88 Ill. App. 3d 87, 93 (1980). Plaintiff cites to and argues Defendant has
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`engaged in deceptive trade practices under 815 ILCS 510.3; however, Plaintiff fails to
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`establish any protective right in Pumpkin Work (pictured below).
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`Image 1: Plaintiff’s Claimed Work (hereinafter “Pumpkin Work”).
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`As previously noted in Defendant’s Answer [Dkt. No. 25], Plaintiff is not the owner
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`or creator of the Pumpkin Work. Plaintiff does not own a Copyright in the work they claim
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`to have a right in. Plaintiff failed to even address this evidence in the motion for preliminary
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`injunction. Plaintiff alleges they created the Pumpkin Work sometime in 2021 and published
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`on June 17, 2021. (Plaintiff’s Amended Complaint, Doc. 16 ¶ 16). However, the same
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`Pumpkin Work was and is on sale on Etsy.com and highlighted as fall décor items in online
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`articles. (See Exhibit F). Customers and users have left ratings and reviews of the Pumpkin
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`Work products displayed on Etsy dating back to 2019.
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 15 of 21 PageID #:383
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`Moreover, Plaintiff fails to provide any evidence of creation of this Pumpkin Work.
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`Plaintiff merely alleges the creation in Photoshop (again), but this time, Plaintiff does not
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`provide any actual evidence that such creation (or appearance of creation) occurred as they
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`did regarding Plaintiff’s Colored Christmas Tree. Defendant would also like this Court to
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`note the significant similarity of Plaintiff’s timeline of the Pumpkin Work to Plaintiff’s
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`timeline of Plaintiff’s Colored Christmas Tree: copying existing works, immediately
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`producing the goods within days, and making a quick profit.
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`Thus, Plaintiff does not have any rights in the Pumpkin Work because Plaintiff is not
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`the owner nor creator.
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`Secondly, “there must be more than the mere allegation that confusion occurred, to
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`the injury of the plaintiff.” Egnell, Inc. v. Weniger, 94 Ill. App. 3d 325, 330 (1981). Plaintiff
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`simply alleges a likelihood of confusion by consumers as to the source of goods. However,
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`Plaintiff does not own any rights in this work nor is this a trademark case. Plaintiff fails to
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`bring forth any factual findings or evidence of likelihood of confusion, and “merely alleges”
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`that public confusion occurred.
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`Moreover, looking at the Plaintiff’s Pumpkin Work and Defendant’s Pumpkin Work,
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`many differences are readily apparent, including: the shapes of the pumpkins, the sizes of
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`the pumpkins, the arrangement of the pumpkins, the pumpkin stems, the pumpkin leaves, the
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`colors, the black line outlines of the figures, the shading, the stylized text, the text font, and
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`the text itself.
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`Finally, Plaintiff’s state law deceptive trade practice claim is preempted by the
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`Copyright Act. The Seventh Circuit has held that “Section 301(a) preempts a common law
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`tort claim when two conditions are met. ‘First, the work in which the right is asserted must
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 16 of 21 PageID #:384
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`be fixed in tangible form and come within the subject matter of copyright as specified in [17
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`U.S.C. § 102]. Second, the right must be equivalent to any of the rights specified in [17
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`U.S.C. § 106].’” CEO Mktg. Promotions Co. v. Heartland Promotions, Inc., 739 F. Supp.
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`1150, 1152 (N.D. Ill. 1990) (quoting Balt. Orioles, Inc. v. Major League Baseball Players
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`Ass'n, 805 F.2d 663, 671-72 (7th Cir. 1986)).
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`Here, Plaintiff alleges misuse through the reproduction and distribution of an
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`allegedly owned common law copyrightable work. Plaintiff clearly shows the work is fixed
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`in a medium of a shower curtain, and a preliminary injunction for reproduction and
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`distribution of a work with claimed common law rights is clearly equivalent to seeking
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`copyright protection under 17 U.S.C. § 106. Thus, Plaintiff’s state law deceptive trade claim
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`should be dismissed.
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`In sum, Plaintiff has no right to the allegedly misappropriated work, Plaintiff has not
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`provided any evidence of likelihood of confusion other than “mere allegations,” and
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`Plaintiff’s state law claim is preempted under the Copyright Act and should be dismissed
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`accordingly. Thus, Plaintiff fails to establish a likelihood of success on the merits with
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`regard to the Pumpkin Work, and this Court should deny Plaintiff’s motion for preliminary
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`injunction.
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`V.
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`Plaintiff will not suffer irreparable harm.
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`Plaintiff’s motion for preliminary injunction should be denied because Plaintiff will
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`not suffer irreparable harm.
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`Irreparable harm is “harm that cannot be prevented or fully rectified by the final
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`judgement after trial.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir.
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 17 of 21 PageID #:385
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`1984). “In saying that the plaintiff must show that an award of damages at the end of trial
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`will be inadequate, we do not mean wholly ineffectual; we mean seriously deficient as a
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`remedy for the harm suffered.” Id.
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`Moreover, as the Supreme Court of the United States puts it: “Issuing a preliminary
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`injunction based only on a possibility of irreparable harm is inconsistent with our
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`characterization of injunctive relief as an extraordinary remedy…” Winter v. NRDC, Inc.,
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`555 U.S. 7, 22 (2008).
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`A.
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`Plaintiff’s Colored Christmas Tree.
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`Plaintiff only claims harm through brand devaluation due to inferior products, ability
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`to develop and maintain licenses, and deprivation of the ability to control the creative
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`content protect by Copyright. However, the harms that Plaintiff claims are too speculative in
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`nature and any likely harm can be remedied by monetary damages.
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`First, Defendant’s products have the same quality rating on Amazon. (See Exhibit
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`G). Plaintiff fails to show any difference in quality between Plaintiff’s and Defendant’s
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`products. In fact, the public response shows equal quality amongst the products.
`
`Second, Plaintiff has failed to establish any past, present, or future licensing offers.
`
`Plaintiff’s claim of possible licensing in the future is purely speculative in nature and could
`
`be remedied with monetary damages if actual evidence was even produced.
`
`Finally, the granting of a preliminary injunction will not give Plaintiff the ability to
`
`control the creative content protected by the Copyright. As shown above, Plaintiff does not
`
`even have a valid copyright in the work, and accordingly, Plaintiff is not entitled to any
`
`control of the Christmas Tree Work.
`
`Thus, Plaintiff has not established any irreparable harm, and any harm claimed by
`
`
`
`17
`
`
`
`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 18 of 21 PageID #:386
`
`
`Plaintiff is merely speculative or can be remedied by monetary damages.
`
`B.
`
`Pumpkin Work.
`
`Plaintiff claims only loss of market share and unwanted association with Defendant.
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`However, “[t]he threat of irreparable injury is related to proof of a protectable interest…”
`
`Mohanty v. St. John Heart Clinic, S.C., 358 Ill. App. 3d 902, 832 N.E.2d 940, 943, 295 Ill.
`
`Dec. 490 (Ill. App. Ct. 2005).
`
`Here, as pointed out above, Plaintiff has failed to establish any protectable interest
`
`in the Pumpkin Work because they do not own a Copyright nor does Plaintiff have common
`
`law rights because Plaintiff is not the owner or creator of the Pumpkin Work.
`
`Regardless, even assuming Plaintiff had any actual protectable interest and although
`
`market share loss can be an irreparable harm, Plaintiff does not demonstrate any market
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`share loss. “[I]f the simple recitation of potential economic injuries like the loss of sales,
`
`market share and profits could signify irreparable harm, it ‘would require a finding of
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`irreparable harm to every manufacturer/patentee, regardless of circumstances.’” Eli Lilly &
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`Co. v. Am. Cyanamid Co., 896 F. Supp. 851, 860 (S.D. Ind. 1995) (quoting Illinois Tool
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`Works, Inc. v. Grip-Pak, Inc., 906 F.2d 679, 683 (Fed. Cir. 1990)). In this case, Plaintiff
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`merely asserts market share loss without any factual evidence or numbers to support such a
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`claim.
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`Thus, Plaintiff has not established any irreparable harm because Plaintiff has no
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`protectable right, and any harm claimed by Plaintiff is merely speculative or can be
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`remedied by monetary damages.
`
`
`
`
`
`18
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`
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 19 of 21 PageID #:387
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`VI. Defendant’s irreparable harm outweighs any potential harm to Plaintiff and
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`Public Interest.
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`Plaintiff’s motion for preliminary injunction should be denied because Defendant’s
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`irreparable harm outweighs any potential harm to Plaintiff. The court must consider “the
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`irreparable harm that the nonmoving party will suffer if preliminary relief is granted,
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`balancing such harm against the irreparable harm the moving party will suffer if relief is
`
`denied.” In re Aimster Copyright Litig., 252 F. Supp. 2d 634, 665 (N.D. Ill. 2002). In this
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`consideration, courts use a “sliding scale approach; the more likely the plaintiff will succeed
`
`on the merits, the less the balance of irreparable harms need favor the plaintiff's position.”
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`Id. Per the reasons set forth above in this document, Plaintiff will not likely succeed on the
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`merits of copyright infringement nor state law deceptive trade practice; thus, the balance of
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`irreparable harms need to favor the Plaintiff’s position significantly.
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`For example, EnVerve, Inc. v. Unger Meat Co. is a similar factual case involving a
`
`copyright infringement suit where ownership of the copyright was an underlying dispute. In
`
`EnVerve, when considering the balancing of harms and the public interest, the court found
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`“minimal possibility of irreparable…[and a] weak showing of success on the merits, [means]
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`the balance of the harms tips decidedly in favor of [Defendant].” 779 F. Supp. 2d 840, 845-
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`46 (N.D. Ill. 2011). In EnVerve, the court declined to enjoin defendant from using the
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`creative works at the center of the infringement suit until a determination on the merits
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`occurred. Id.
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`Similarly, Plaintiff has failed to establish success on the merits of infringement and
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`Plaintiff has provided only speculative harms. By enjoining Defendant, this Court imposes a
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`substantial burden on an original Copyright owner, enjoining the Defendant from using
`
`
`
`19
`
`
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 20 of 21 PageID #:388
`
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`Defendant’s own protected work. Defendant will be deprived of the exclusive right granted
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`under the Copyright Act. As the court in EnVerve decided, Defendant requests this Court to
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`deny Plaintiff’s motion for preliminary injunction because Defendant has a substantial
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`Copyright interest in the Christmas Tree Work, a senior right to the Christmas Tree Work,
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`and will face significantly more irreparable harm as compared to Plaintiff.
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`VII. CONCLUSION
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`For the foregoing reasons, Defendant respectfully request that the Court to deny
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`Plaintiff’s motion for preliminary injunction.
`
`Dated: November 2, 2022
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`/s/ Ge (Linda) Lei
`Ge (Linda) Lei, Esq.
`Getech Law LLC
`203 N LaSalle ST, #2100
`Chicago, Illinois 60601
` C: (312) 888-6633
`Linda.lei@getechlaw.com
`
`Kenneth A. Nazarian, Esq.
`Barney & Karamanis, LLP
`Ph#: (312)553-5300
`Fx#:(312)344-1901
`Email: ken@bkchicagolaw.com
`Attorneys for Defendant
`
`
`
`20
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`
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`Case: 1:22-cv-04530 Document #: 28 Filed: 11/02/22 Page 21 of 21 PageID #:389
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`VIII. CERTIFICATE OF SERVICE
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`I hereby certify that on November 2, 2022, a copy of the foregoing was filed via the
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`Court’s ECF filing system, thereby serving it upon all counsel of record.
`
`
`
`/s/ Ge (Linda) Lei
`Ge (Linda) Lei, Esq.
`
`
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`
`
`
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