Case: 1:22-cv-04530 Document #: 29 Filed: 11/14/22 Page 1 of 5 PageID #:471
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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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`v.
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`Plaintiff,
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`Civil Action No. 1:22-cv-04530
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`Judge Robert W. Gettleman
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`JURY TRIAL DEMANDED
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`LIN QIUGUI d/b/a ESTMY STORE,
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`Defendant.
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`PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSTION TO PLAINTIFF’S MOTION
`FOR PRELIMINARY INJUNCTION
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`Plaintiff Shilong Cai (“Plaintiff”) files this Reply to Defendant’s Opposition (Dkt. No. ) to
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`Plaintiff’s Motion for Preliminary Injunction (Dkt. No. ).
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`I.
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`INTRODUCTION
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`Plaintiff has demonstrated a better than negligible chance on at least one of the claims,
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`irreparable injury, and that the balance of hardships and public interest favor a preliminary
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`injunction. In an attempt to deflect attention from Defendant’s uncredible date of creation,
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`Defendant responds by making red herring and contradictory arguments about first-to-register,
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`originality, and copying. Regarding irreparable injury, Plaintiff’s losses are not speculative and
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`cannot reasonably be remedied by monetary damages given their uncertain and unquantifiable
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`nature. Further, the public interest is best served by upholding copyrights.
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`III. ARGUMENT
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`A.
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`Plaintiff Has Demonstrated a Likelihood of Success on the Merits
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`Defendant responds by arguing that Plaintiff has failed to demonstrate a likelihood on the
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`merits for both the copyright and state law claims. However, Defendant glosses over the caselaw
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`1
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`Case: 1:22-cv-04530 Document #: 29 Filed: 11/14/22 Page 2 of 5 PageID #:472
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`that sets out the applicable standard: Plaintiff need only demonstrate “a better than negligible
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`chance” on at least one of the claims which is “an admittedly low requirement.” Girl Scouts of
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`Manitou Council, Inc. v. Girl Scouts of U.S.A., 549 F.3d 1079, 1096 (7th Cir. 2008).
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`Plaintiff has more than met this low requirement regarding the copyright claim. Defendant
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`even admits that Plaintiff has submitted the Certificate of Registration which constitutes prima
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`facie evidence of validity. Defendant’s attempt to undermine the validity of Plaintiff’s Copyright
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`with their own Certificate of Registration is unpersuasive because Defendant’s claimed date of
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`creation and publication is simply not credible. Defendant offers no evidence of publication and a
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`likely back-dated, hand-drawn work as evidence of creation. In contrast, Plaintiff has offered a
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`reputable Amazon listing as evidence of publication and a credible Adobe Photoshop file as
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`evidence of creation. To mask such shortcoming, Defendant’s response is largely filled with red
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`herring and contradictory arguments about first-to-register, originality, and copying. What is
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`controlling here is the credibility to be afforded the respective dates of creation. Plaintiff urges the
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`Court to give little to no evidentiary weight to Defendant’s lackluster evidence of creation. If so,
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`then Defendant has not overcome the presumption of validity afforded Plaintiff’s Copyright. As
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`such, Plaintiff has demonstrated at least a negligible chance of success on the copyright
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`infringement claim.
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`Similarly, Plaintiff has more than met this low requirement regarding the UDTPA claim.
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`Defendant again puts forth red herring arguments in their response. For example, Defendant argues
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`that Plaintiff has no protective right in the Pumpkin Work. While it is true that the Pumpkin Work
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`has not been federally registered, Plaintiff’s deceptive trade practice claim is not to be confused
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`with a copyright infringement claim where creation and ownership are crucial. Neither creation
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`nor ownership are elements under the UDTPA. Next, Defendant cites Egnell, Inc. v. Weniger, 94
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`Case: 1:22-cv-04530 Document #: 29 Filed: 11/14/22 Page 3 of 5 PageID #:473
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`Ill. App. 3d 325, 330 (1981) for the proposition that “there must be more than the mere allegation
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`that confusion occurred to the injury of the plaintiff.” Such caselaw is plainly at odds with the
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`language of the UDTPA, as made effective on June 28, 2001, which states: “In order to prevail in
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`an action under this Act, a plaintiff need not prove competition between the parties or actual
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`confusion or misunderstanding.” 815 ILCS 510/2(b). Plaintiff has met the requirement of a
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`likelihood of confusion. Finally, Defendant argues that the UDTPA claim is preempted by the
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`Copyright Act. However, Plaintiff’s UDTPA claim is not based on Defendant’s reproduction and
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`distribution of the Pumpkin Work itself as a work of authorship. Instead, Plaintiff’s claims are
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`based on Defendant’s use and misappropriation of Plaintiff’s development, goodwill, skills, labor,
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`reputation, and necessary expenditures to create the Pumpkin Work. Defendant unfairly trades
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`upon these things in their Amazon listings so as to deceive consumers for profit. Such use and
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`misappropriation are not activities violating legal or equitable rights equivalent to the exclusive
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`rights within the general scope of copyright. 17 U.S.C. § 301(b); see Chi. Bd. Options Exch., Inc.
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`v. Int'l Sec. Exch., LLC, No. 06 C 6852, 2007 U.S. Dist. LEXIS 13007 (N.D. Ill. Feb. 23, 2007);
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`see also H.R. Rep. No. 94-1476, at 132 (1976) (“Section 301 is not intended to preempt common
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`law protection in cases involving activities such as false labeling, fraudulent representation, and
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`passing off even where the subject matter involved comes within the scope of the copyright
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`statute.”); see also H. Rep. No. 101-514, at 21 (June 1, 1990) (“[s]tate law causes of action such
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`as those for misappropriation [and] unfair competition… are not currently preempted under § 301,
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`and they will not be preempted under the proposed [amendments to the Copyright Act].”). As such,
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`Plaintiff has demonstrated at least a negligible chance of success on the UDTPA claim.
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`C.
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`Plaintiff Has Demonstrated Irreparable Harm
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`3
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`Case: 1:22-cv-04530 Document #: 29 Filed: 11/14/22 Page 4 of 5 PageID #:474
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`Defendant responds by arguing that Plaintiff’s claimed irreparable harms are too
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`speculative and can be remedied by monetary damages. However, “[I]rreparable harm may not be
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`presumed[, but] [i]n run-of-the-mill copyright litigation, such proof should not be difficult to
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`establish…” 6 William F. Patry, Patry on Copyrights, § 22:74. Moreover, “[t]he threat of
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`irreparable injury is related to proof of a protectable interest, and once such an interest is
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`established, there is a presumption that injury to the party seeking the injunction will follow if the
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`interest is not protected.” Mohanty v. St. John Heart Clinic, S.C., 358 Ill. App. 3d 902, 832 N.E.2d
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`940, 943, 295 Ill. Dec. 490 (Ill. App. Ct. 2005). Plaintiff’s strongest argument for irreparable harm
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`is the deprivation of the ability to control the creative content protected by the Copyright, i.e., loss
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`of exclusivity. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (“[l]ike a patent owner,
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`a copyright holder possesses ‘the right to exclude others from using his property.’”) (citation
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`omitted); see also MGM Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966 (C.D. Cal. 2006) at
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`997 (“The right to exclude is inherent in the grant of a copyright.”). The infringing products sold
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`by Defendant are in direct competition with Plaintiff on the Amazon marketplace, and in the
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`absence of an injunction, Plaintiff will continue to suffer loss of brand goodwill, recognition,
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`market share, and exclusivity. Such losses are not speculative and cannot reasonably be remedied
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`by monetary damages given their uncertain and unquantifiable nature.
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`IV. CONCLUSION
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`In view of the foregoing, Plaintiff respectfully requests that this Court enter a Preliminary
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`Injunction enjoining Defendant from further infringement and misappropriation.
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`4
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`Case: 1:22-cv-04530 Document #: 29 Filed: 11/14/22 Page 5 of 5 PageID #:475
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`DATED: November 14, 2022
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`Respectfully submitted,
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`By: /s/ Hao Ni
`Hao Ni
`Texas Bar No. 24047205
`hni@nilawfirm.com
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`NI, WANG & MASSAND, PLLC
`8140 Walnut Hill Ln., Ste. 500
`Dallas, TX 75231
`Tel: (972) 331-4600
`Fax: (972) 314-0900
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`Counsel for Plaintiff
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 14, 2022, I electronically filed the foregoing document
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`with the clerk of the court for the U.S. District Court, Northern District of Illinois, Eastern
`Division, using the electronic case filing system of the court. The electronic case filing system
`sent a “Notice of Electronic Filing” to the attorneys of record who have consented in writing to
`accept this Notice as service of this document by electronic means.
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`/s/ Hao Ni
`Hao Ni
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`5
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