Case 2:23-cv-05842-JMA-ARL Document 17 Filed 06/03/24 Page 1 of 14 PageID #: 341
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`ADAMA STUDIOS LLC and TERRA STUDIO LTD.,
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` For Online Publication Only
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`ORDER
`23-cv-05842 (JMA) (ARL)
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`Plaintiffs,
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`-against-
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`SHUNCHAO TANG a/k/a VERTPLANTER.COM,
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`Defendant.
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`AZRACK, United States District Judge:
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`Before the Court is Plaintiff Adama Studios LLC and Terra Studio Ltd.’s (“Plaintiffs”)
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`motion for default judgment (“Motion”) against Defendant Shunchao Tang, also known as
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`Vertplanter.com (“Defendant”). For the below reasons, Plaintiffs’ Motion is GRANTED IN PART
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`and DENIED IN PART.
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`A. Defendant Defaulted.
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`I. DISCUSSION
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`On August 1, 2023, Plaintiffs commenced this action (“Action”) by filing a Complaint
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`against Defendant, which alleged federal claims of patent infringement, copyright infringement,
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`trademark infringement, unfair competition, and false advertising.1 (See ECF No. 1 (“Compl”).)
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`On August 22, 2023, Defendant was properly served with a copy of the Summons and Complaint.
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`(See ECF No. 10.)
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`Following expiration of Defendant’s deadline to respond to Plaintiffs’ Complaint, Plaintiffs
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`requested a Certificate of Default from the Clerk of this Court (“Clerk”) on September 20, 2023.
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`(See ECF No. 12.) The same day, the Clerk entered a Certificate of Default against Defendant.
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`(See ECF No. 13.)
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`Plaintiffs also brought claims for (i) common law unfair competition and (ii) deceptive businesses practices
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`and advertisement under New York Law. (See Compl., ECF No. 1.)
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`FILED 
`CLERK 
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`U.S. DISTRICT COURT 
`EASTERN DISTRICT OF NEW YORK 
`LONG ISLAND OFFICE 
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`9:40 am, Jun 03, 2024
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`Case 2:23-cv-05842-JMA-ARL Document 17 Filed 06/03/24 Page 2 of 14 PageID #: 342
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`On November 2, 2023, the Court directed Plaintiffs to file the instant Motion for Default
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`Judgment against Defendant. (See Elec. Order, Nov. 2, 2023.) On November 15, 2023, Plaintiffs
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`did so. (See ECF No. 14-1 (“Pls.’ Mot.”).) To this day, Defendant has failed to respond to this
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`Action in any way.
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`B. Liability.
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`The Federal Rules of Civil Procedure prescribe a two-step process for a plaintiff to obtain
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`a default judgment. First, “[w]hen a party against whom a judgment for affirmative relief is sought
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`has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the
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`clerk must enter the party’s default.” FED. R. CIV. P. 55(a). Second, after a default has been entered
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`against the defendant, and provided the defendant failed to appear and move to set aside the default,
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`this Court may, on a plaintiff’s motion, enter a default judgment. See FED. R. CIV. P. 55(b)(2).
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`Before imposing a default judgment, this Court must accept well-pled allegations “as true”
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`and determine whether they establish the defendant’s liability as a matter of law. Bricklayers &
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`Allied Craftworkers Local 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 187 (2d Cir. 2015)
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`(per curiam).
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`In their Motion, Plaintiffs contend they have established liability on their claims against
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`Defendant for (i) patent infringement; (ii) copyright infringement; (iii) federal trademark
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`infringement; and (iv) federal false advertising.2 (See Compl. ¶¶ 35–52, 59–63, ECF No. 1.) The
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`Court examines each claim in turn.
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`1.
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`Patent Infringement.
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`Plaintiffs allege Defendant is liable for both direct and indirect infringement of Plaintiffs’
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`patent in violation of the Patent Act, 35 U.S.C. § 271. Under the Patent Act, “whoever without
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`Plaintiffs also bring claims for (i) federal unfair competition, (ii) common law unfair competition, and (iii)
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`deceptive businesses practices and advertisement under New York Law. (See Compl. ¶¶ 53–58, 64–70, ECF No. 1.)
`But Plaintiffs do not move for default judgment on these claims.
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`Case 2:23-cv-05842-JMA-ARL Document 17 Filed 06/03/24 Page 3 of 14 PageID #: 343
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`authority makes, uses, offers to sell, or sells any patented invention, within the United States or
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`imports into the United States any patented invention during the term of the patent therefor,
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`infringes the patent.” 35 U.S.C. § 271(a). There are “five elements of a patent infringement
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`pleading, to (i) allege ownership of the patent, (ii) name each defendant, (iii) cite the patent that is
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`allegedly infringed, (iv) state the means by which the defendant allegedly infringes, and (v) point
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`to the sections of the patent law invoked.” Hall v. Bed Bath & Beyond, Inc., 705 F.3d 1357, 1362
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`(Fed. Cir. 2013) (citing Phonometrics, Inc. v. Hosp. Franchise Sys., Inc., 203 F.3d 790, 794 (Fed.
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`Cir. 2000)); see also Display Techs., LLC v. Leantegra, Inc., 2022 WL 354667, at *3 (S.D.N.Y.
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`Feb. 7, 2022).
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`Plaintiffs have satisfied each of the five elements required to establish Defendant’s liability
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`for patent infringement. First, Plaintiffs allege Terra Studio Ltd. owns one patent pertaining to its
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`tevaplanter® Product: United States Patent No. 11,576,315 (“the ‘315 Patent”). (See Compl. ¶¶
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`35–40; see also Ex. A, ECF No. 1-1.) Second, Plaintiffs identify the Defendant, Vertplanter.com,
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`as the business selling the infringing product (“VertPlanter”). (See id. ¶ 3.) Third, Plaintiffs
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`specifically cite to the aforementioned patent as the one being infringed. (Id. ¶¶ 37–39.) Fourth,
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`Plaintiffs state how Defendant infringed their patent. (Id. ¶ 37.) Finally, Plaintiffs have specified
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`that Defendant violated patent law 35 U.S.C. § 271. (Id. ¶¶ 35–40.)
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`Having satisfied all five elements, default judgment is granted in Plaintiffs’ favor for direct
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`patent infringement claims under 35 U.S.C. § 271(a). Because this Court finds Defendant liable
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`for direct patent infringement under 35 U.S.C. § 271(a) for Terra Studio’s ‘315 Patent, it need not
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`address Plaintiffs’ additional theory of indirect infringement. See 35 U.S.C. § 271(b)–(c).
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`2.
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`Copyright Infringement.
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`Plaintiffs allege that Defendant has infringed, and continues to infringe, Plaintiff Adama
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`Studios’ copyrighted text, photographs, and graphics in violation of the Copyright Act, 17 U.S.C.
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`3
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`§§ 106 & 501. (See Compl. ¶¶ 41–47.) “The Copyright Act grants the owner of the copyright the
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`exclusive right to authorize the reproduction, distribution, and preparation of derivatives of the
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`owner’s work.” Otto v. Hearst Commc’ns, Inc., 345 F. Supp. 3d 412, 424 (S.D.N.Y. 2018) (citing
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`Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546–47 (1985)). The Court
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`concludes that Plaintiffs’ allegations of copyright infringement in violation of 17 U.S.C. § 501 are
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`well-pled and sufficient to establish liability.
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`To prevail on a copyright infringement claim, a plaintiff must demonstrate: “(i) ownership
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`of a valid copyright; and (ii) unauthorized copying of the copyrighted work.” Jorgensen v.
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`Epic/Sony Recs., 351 F.3d 46, 51 (2d Cir. 2003) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
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`499 U.S. 340, 361 (1991)). “A certificate of registration from the United States Register of
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`Copyrights constitutes prima facie evidence of the valid ownership of a copyright.” Id. (citing 17
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`U.S.C. § 410(c)).
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`Under the first prong, Plaintiffs have sufficiently alleged that Adama Studios is the sole
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`owner of text, photographs, and graphics works pertaining to its kickstarter.com website that
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`promoted the tevaplanter® product, which is covered by U.S. Copyright Registration No. TXu 2-
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`381-272. (See Compl. ¶ 20; see also Ex. C, ECF No. 1-3.)
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`To satisfy the second prong, “a plaintiff must demonstrate that: ‘(1) the defendant has
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`actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity
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`exists between the defendant’s work and the protectible elements of plaintiff’s [work].’” Spin
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`Master Ltd. v. 158, 463 F. Supp. 3d 348, 369 (S.D.N.Y. 2020) (quoting Yurman Design, Inc. v. PAJ
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`Inc., 262 F.3d 101, 110 (2d Cir. 2001) (alteration in original)).
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`Plaintiffs satisfy the first element because Defendant directly copied from Adama Studios’
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`kickstarter.com website the text, photographs, and graphics works relating to the tevaplanter®
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`product (i) when it created its own website, Vertplanter.com; and (ii) when it created an
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`4
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`instructional insert used in connection with VertPlanter product. (See Compl. ¶¶ 26–27, 42–46;
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`see also Ex. E, ECF No. 1-5.)
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`Plaintiffs satisfy the second element because they established a “substantial similarity”
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`between the two texts, photographs, and graphics works relating to the tevaplanter® product.
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`Here, Plaintiffs show that an “ordinary observer, unless he set out to detect the disparities, would
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`be disposed to overlook them, and regard their aesthetic appeal as the same.” Hamil Am. Inc. v.
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`GFI, 193 F.3d 92, 100 (2d Cir. 1999) (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274
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`F.2d 487, 489 (2d Cir. 1960) (L. Hand, J.)). A side-by-side comparison of Plaintiffs’ and
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`Defendant’s works products reveals a clear substantial similarity. (See Ex. E, ECF No. 1-5.)
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`Accordingly, Plaintiffs have successfully demonstrated copyright infringement, and default
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`judgment is granted in their favor for the claim.
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`3.
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`Federal Trademark Infringement.
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`To succeed on a trademark infringement claim, Plaintiffs must allege that “(1) it has a valid
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`mark that is entitled to protection under the Lanham Act; and that (2) the defendant used the mark,
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`(3) in commerce, (4) ‘in connection with the sale ... or advertising of goods or services,’ (5) without
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`the plaintiff’s consent.” Canon U.S.A., Inc. v. F & E Trading LLC, 2017 WL 4357339, at *5
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`(E.D.N.Y. Sept. 29, 2017) (quoting 1–800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400, 406
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`(2d Cir. 2005), cert denied, 546 U.S. 1033 (2005)). Additionally, “the plaintiff[s] must show that
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`defendant’s use of that mark ‘is likely to cause confusion ... as to the affiliation, connection, or
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`association of [defendant] with [plaintiffs], or as to the origin, sponsorship, or approval of [the
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`defendant’s] goods, services, or commercial activities by [plaintiffs].’” 1–800 Contacts, 414 F.3d
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`at 406 (quoting 15 U.S.C. § 1125(a)(1)(A)) (alterations in original); see also Estee Lauder Inc. v.
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`The Gap, Inc., 108 F.3d 1503, 1508–09 (2d Cir. 1997).
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`5
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`Case 2:23-cv-05842-JMA-ARL Document 17 Filed 06/03/24 Page 6 of 14 PageID #: 346
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`Here, Plaintiff Adama Studios alleges it is—and was at all relevant times—the owner of a
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`federal trademark registration, Reg. No. 6,495,232 issued by the USPTO, for the TEVAPLANTER
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`mark for flowers and plants planters. (See Compl. ¶ 18; see also Ex. B, ECF No. 1-2.) Adama
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`Studios has used the term TEVAPLANTER to identify the source of the product and has used that
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`trademark to designate the source of the product.
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`Defendant allegedly uses the term TEVAPLANTER to confuse the consuming public.
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`Specifically, Defendant allegedly included the designation #tevaplanter on social media—
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`including on Instagram—as part of the promotion of his own VertPlanter product. (See Compl. ¶
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`50.) Doing so allegedly trades off Plaintiffs’ name and reputation and creates at least initial interest
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`confusion to lure consumers into investigating Defendant’s product. (See id.) Defendant allegedly
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`provides his VertPlanter to the customer—and in the process—deceptively lures customers away
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`from Plaintiffs’ products by using Plaintiffs’ trademark. (See id.) Defendant, however, owns no
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`rights in the TEVAPLANTER designation.
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`Despite proper service, Defendant has failed to appear and deny/dispute Plaintiffs’
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`allegations as to their ownership and registration of their trademark. Defendant has also failed to
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`deny or dispute Plaintiffs’ allegations that Defendant acted willfully in infringing Adama Studios’
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`trademark in commerce regarding the sale or advertising of goods. Therefore, accepting as true
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`all the factual allegations about Defendant’s trademark infringement contained in Plaintiffs’
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`Complaint, the Court concludes Plaintiffs have sufficiently alleged facts to support their trademark
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`infringement claim against Defendant, and the Court enters default judgment on that claim.
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`4.
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`Federal False Advertising.
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`Plaintiffs also claim false advertising under Section 43(a) of the Lanham Act, 15 U.S.C. §
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`1125(a). (See Compl. ¶¶ 59–63.) “To state a false advertising claim under Section 43(a), a plaintiff
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`must first plausibly allege the falsity of the challenged statement.” Int’l Code Council, Inc. v.
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`6
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`UpCodes Inc., 43 F.4th 46, 56 (2d Cir. 2022). “In addition to falsity, the plaintiff must also
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`plausibly allege materiality, i.e., ‘that the false or misleading representation involved an inherent
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`or material quality of the product.’” Id. (quoting Apotex Inc. v. Acorda Therapeutics, Inc., 823
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`F.3d 51, 63 (2d Cir. 2016)). Finally, Plaintiffs must plausibly assert “that the defendant placed the
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`false or misleading statement in interstate commerce, and that the plaintiff has been injured as a
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`result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill
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`associated with its products.” Id. (quoting Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 255
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`(2d Cir. 2014) (alteration, internal quotation marks, and citations omitted)).
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`A plaintiff can demonstrate falsity either by showing: (1) literal falsity, i.e., “that the
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`challenged advertisement is ... false on its face,” or (2) implied falsity, i.e., “that the advertisement,
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`while not literally false, is nevertheless likely to mislead or confuse consumers.” Tiffany (NJ) Inc.
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`v. eBay Inc., 600 F.3d 93, 112 (2d Cir. 2010) (quoting Time Warner Cable, Inc. v. DIRECTV, Inc.,
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`497 F.3d 144, 153 (2d Cir. 2007)).
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`“A message can only be literally false if it is unambiguous.” Church & Dwight Co., v. SPD
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`Swiss Precision Diagnostics, GmBH, 843 F.3d 48, 65 (2d Cir. 2016). The Second Circuit has
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`explained that “a district court evaluating whether an advertisement is literally false must analyze
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`the message conveyed in full context, i.e., it must consider the advertisement in its entirety and not
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`engage in disputatious dissection.” Time Warner, 497 F.3d at 158 (internal quotation marks,
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`citations and alterations omitted). “A court may find a statement literally false by necessary
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`implication, without considering extrinsic evidence, when the advertisement’s ‘words or images,
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`considered in context, necessarily and unambiguously imply a false message.’” Church & Dwight
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`Co., 843 F.3d at 67 n.8 (quoting Time Warner Cable, 497 F.3d at 148).
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`On the other hand, an “impliedly false” message “leaves ‘an impression on the listener or
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`viewer that conflicts with reality.’” Id. at 65 (quoting Time Warner, 497 F.3d at 153). The Second
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`7
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`Circuit has warned that “[i]mplied falsity should not be confused with literal falsity by necessary
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`implication.” Id. at 67 n.8. Impliedly false statements can be ambiguous, but their falsity is usually
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`“demonstrated through extrinsic evidence of consumer confusion or through evidence of the
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`defendant’s deliberate deception, which creates a rebuttable presumption of consumer confusion.”
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`Id. (citation omitted).
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`Here, Plaintiffs satisfy all the elements of a false advertising claim. First, Defendant
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`engaged in false advertising on its website by falsely claiming that he “created . . . a proprietary
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`ceramic material” used in the VertPlanter product—i.e., porous ceramic material. (Pls.’ Mot. at 7,
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`ECF No. 14-1.) Plaintiffs adequately pleaded that Defendant’s claim was a literal falsity because
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`the clay used in the VertPlanter product is just “ordinary clay.” (See Compl. ¶ 30.) This statement
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`is literally false as pled because it “necessarily and unambiguously impl[ies] a false message”
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`about the VertPlanter product. Time Warner, 497 F.3d at 148. Additionally, the picture used in the
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`insert accompanying Defendant’s VertPlanter product does not feature his product; rather, the
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`picture is an exact copy of a photograph taken by an electron microscope of Plaintiffs’ tevaplanter®
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`hydroponic planter. (See id. ¶¶ 28–31.) On this score too, Plaintiffs adequately pleaded
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`Defendant’s insert is a literal falsity; it “unambiguously impl[ies] a false message” that Defendant’s
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`own product contains the same features as Plaintiffs’ product. Time Warner, 497 F.3d at 148.
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`Second, Defendant’s false claim involved an inherent or material quality of the VertPlanter
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`product—i.e., its substantive makeup. See Int’l Code Council, Inc., at 43 F.4th 56. The allegedly
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`false statement must be “likely to influence purchasing decisions.” Apotex Inc., 823 F.3d at 63.
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`In this Court’s view, Plaintiffs’ allegations that Defendant’s false advertising was “likely to
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`influence purchasing decisions” are plausible.
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`Finally, Plaintiffs plausibly assert that “that the defendant placed the false or misleading
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`statement in interstate commerce, and that the plaintiff[s] ha[ve] been injured as a result of the
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`misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with
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`[their] products.” Merck Eprova AG, 760 F.3d at 255 (alteration, internal quotation marks, and
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`citations omitted). Plaintiffs adequately pleaded that Defendant advertised pictures of the
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`tevaplanter® product on social media (including Instagram) to promote his own VertPlanter
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`product. (See Compl. ¶¶ 24–25, 60–61.) And Plaintiffs adequately plead they are being harmed
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`by the misrepresentation by direct diversion of sales and by a lessening of goodwill associated
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`with their product. (Id. ¶ 62.)
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`Accordingly, the Court concludes Plaintiffs have sufficiently alleged facts to support their
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`false advertising claim against Defendant, and the Court enters default judgment on that claim.
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`C. Injunctive Relief.
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`Plaintiffs also seek a permanent injunction enjoining Defendant, his agents, servants,
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`employees, and those in active concert or participation with him or any of them, from (i) infringing
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`Plaintiffs’ patent; (ii) infringing Adama Studios’ copyrighted text, photographs, and graphics; (iii)
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`imitating, copying, reproducing, or using in any manner the TEVAPLANTER trademark; (iv)
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`further engaging in false or deceptive advertising in the offering for sale of Plaintiffs’ products; (v)
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`representing, suggesting in any fashion to any third party, or performing any act which may give
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`rise to the belief that Defendant, his business, or any of his goods and services, are authorized or
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`sponsored by Plaintiffs; and (vi) otherwise competing unfairly with Plaintiffs in any manner. (See
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`Compl., at 13–14.) Plaintiffs also seek injunctive relief directing third party internet service
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`providers to stop providing their services to Defendant due to his sale of the infringing VertPlanter
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`product. (Pls.’ Mot. at 9–10, ECF No. 14-1.)
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`1.
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`Injunctive Relief Directed to Defendant.
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`It is well-established that a court may grant a permanent injunction as part of a default
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`judgment. See, e.g., Rovio Ent., Ltd. v. Allstar Vending, Inc., 97 F. Supp. 3d 536, 546–47 (S.D.N.Y.
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`9
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`2015) (collecting cases); see also Campbell v. Huertas, 2023 WL 1967512, at *10 (E.D.N.Y. Feb.
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`13, 2023). To obtain an injunction, Plaintiffs must show that “(1) [they are] entitled to injunctive
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`relief under the applicable statute, and (2) [they] meet[] the prerequisites for the issuance of an
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`injunction.” CommScope, Inc. of N. Carolina v. Commscope (U.S.A.) Int’l Grp. Co., 809 F. Supp.
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`2d 33, 41 (N.D.N.Y. 2011) (citations omitted). Those “prerequisites,” id., are four-fold, see S.E.C.
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`v. Citigroup Glob. Mkts., Inc., 752 F.3d 285, 296 (2d Cir. 2014). Once liability is established, a
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`permanent injunction should be granted when a plaintiff demonstrates: “(1) that it has suffered an
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`irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to
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`compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and
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`defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved
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`by a permanent injunction.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).
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`Plaintiffs have established Defendant’s liability under the Patent Act, the Copyright Act,
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`and the Lanham Act. See supra, at 2–9. All three of the statutes empower a court to order
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`injunctive relief. See 35 U.S.C. § 283; see also 17 U.S.C. § 502; 15 U.S.C. § 1116(a). So Plaintiffs
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`are entitled to an injunction under the Patent Act, the Copyright Act, and the Lanham Act if the
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`four eBay factors cited above weigh in favor of that remedy. In this case, all four factors weigh in
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`favor of Plaintiffs.
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`a.
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`Irreparable Harm.
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`First, Plaintiffs’ injunction as to the Defendant is appropriate because they have adequately
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`pleaded that they suffered an irreparable injury. In trademark infringement cases, irreparable harm
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`is almost always found where a probability of confusion exists because of the “unique nature of
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`the trademark’s function in representing such an intangible asset as reputation and good will.” See
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`Johnson & Johnson v. Azam Int’l Trading, 2013 WL 4048295, at *12 (E.D.N.Y. Aug. 9, 2013)
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`(cleaned up) (internal quotations and citation omitted). Given the likelihood of confusion arising
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`from Defendant’s conduct, discussed supra, Plaintiffs would lose control of their reputation and
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`goodwill, causing irreparable harm in the absence of an injunction. See U.S. Polo Ass’n, Inc. v.
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`PRL U.S.A. Holdings, Inc., 800 F. Supp. 2d 515, 540–41 (S.D.N.Y. 2011), aff’d, 511 F. App’x 81
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`(2d Cir. 2013) (summary order). Without injunctive relief, Defendant will simply continue
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`infringing, as he indeed has done despite a cease-and-desist letter and takedown notices sent by
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`Plaintiffs. (See Compl. ¶¶ 33–34.) Additionally, the Lanham Act creates a rebuttable presumption
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`of irreparable harm where—as here—a violation is shown. See 15 U.S.C. § 1116(a). By failing
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`to respond to this Action, Defendant has not rebutted the presumption.
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`b.
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`Remedies at Law are Inadequate.
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`Second, Plaintiffs’ requested injunction as to the Defendant is appropriate because their
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`loss of reputation and goodwill cannot be quantified, and no adequate remedy at law can
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`compensate Plaintiffs. See U.S. Polo Ass’n, Inc., 800 F. Supp. 2d at 541 (citing Northwestern
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`Nat’l Ins. Co. of Milwaukee, Wisc. v. Alberts, 937 F.2d 77, 80 (2d Cir. 1991)); see also Stark Carpet
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`Corp v. Stark Carpet & Flooring Installations, Corp., 954 F. Supp. 2d 145, 158 (E.D.N.Y. 2013)
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`(“A defendant’s refusal to appear in this action demonstrates the inadequacy of plaintiff’s remedies
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`at law.”) (citation omitted). Defendant’s business is based in China, and Plaintiffs have no real
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`possibility of collecting on a judgment. Cf. Sylo Supply, Inc. v. Juzihao Res. Mgmt. Co., 2023
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`WL 6370863, at *14 (E.D.N.Y. Sept. 28, 2023), report and recommendation adopted, 2023 WL
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`6845865 (E.D.N.Y. Oct. 17, 2023) (“Here, because Defendants are foreign entities and an
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`individual located outside the United States, there is serious doubt that Plaintiffs will be successful
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`in collecting any monetary award the Court could issue.”) (cleaned up).
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`c.
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`Balance of Hardships Weighs in Plaintiffs’ Favor.
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`Similarly, the balance of hardships weighs in favor of injunctive relief because Plaintiffs
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`have spent time, money, and resources to establish, develop, and promote their product, patent,
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`11
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`copyright, and trademark. See Stark Carpet Corp., 954 F. Supp. 2d at 163–64 (observing that most
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`courts typically find injunctive relief proper where plaintiff offers evidence that losing control of
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`its mark would cause significant harm); Campbell, 2023 WL 1967512, at *10. Moreover, it is
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`“axiomatic that an infringer . . . cannot complain about the loss of ability to offer its infringing
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`product.” WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 287 (2d Cir. 2012) (citation omitted).
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`d.
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`Public Interest Would Not Be Disserved by Injunction.
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`“Finally, the public interest is served by issuing injunctive relief because it would protect
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`the public from deception, mistake, and confusion.” See Campbell, 2023 WL 1967512, at *11
`
`(citing New York City Triathlon, LLC v. NYC Triathlon Club, Inc., 704 F. Supp. 2d 305, 344
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`(S.D.N.Y. 2010) (“[T]he public has an interest in not being deceived—in being assured that the
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`mark it associates with a product is not attached to goods of unknown origin and quality.”));
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`Ideavillage Prod. Corp v. OhMyGod 1, 2020 WL 6747033, at *4 (S.D.N.Y. Nov. 17, 2020) (“A
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`permanent injunction would also promote the public interest in freedom from deception in the
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`marketing of consumer goods.”). Moreover, “[c]ourts have regularly found that there is a strong
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`public policy interest in protecting intellectual property rights.” Smart Billiard Lighting, LLC v.
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`Lucid Ball Sports, Inc., 2023 WL 4420222, at *2 (E.D.N.Y. Jul. 10, 2023). Thus, the Court finds
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`that the public interest would be served by the entering of an injunction against Defendant.
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`2.
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`Injunctive Relief Directed to Third Party Internet Platforms Providing Services to
`Defendant’s Sale of the Infringing Product.
`
`Rule 65 of the Federal Rules of Civil Procedure, which governs the Court’s power to
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`
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`permanently enjoin parties and non-parties to a dispute, authorizes the Court to enjoin “only” the
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`following who receive actual notice of an injunction: “(A) the parties; (B) the parties’ officers,
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`agents, servants, employees, and attorneys; and (C) other persons who are in active concert or
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`participation with anyone described in Rule 65(d)(2)(A) or (B).” FED. R. CIV. P. 65(d)(2).
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`Plaintiffs seeks injunctive relief directed at various internet platforms on which Defendant offers
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`Case 2:23-cv-05842-JMA-ARL Document 17 Filed 06/03/24 Page 13 of 14 PageID #: 353
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`and sells his infringing VertPlanter product: (i) Cloudfare; (ii) Amazon; and (iii) Instagram,
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`TikTok, and Facebook. (Pls.’ Mot. at 10, ECF No. 14-1.) Plaintiffs do not, however, make any
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`showing whatsoever that any of these platforms are in active concert or participation with
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`Defendant to offer his infringing product to the marketplace. Rule 65(d) requires “clear and
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`convincing proof” that “‘an enjoined party is substantially intertwined with a non-party,’” but such
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`proof is lacking here. Next Invs., LLC v. Bank of China, 12 F.4th 119, 134 (2d. Cir. 2021) (quoting
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`Nike, Inc. v. Wu, 2020 WL 257475, at *19 (S.D.N.Y. Jan. 17, 2020)). Accordingly, the Court
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`denies—without prejudice—Plaintiffs’ request for injunctive relief and their proposed judgment
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`with respect to the above-mentioned internet service providers
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`* * *
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`As a result, Plaintiffs’ request for a permanent injunction is granted in part and denied in
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`part. Accordingly, it is ORDERED, ADJUDGED, AND DECREED that Defendant, his agents,
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`servants, employees, and those in active concert or participation with him or any of them, are
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`permanently enjoined and restrained:
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`1. From further importing, selling or offering for sale the VertPlanter
`Product or otherwise infringing the ‘315 Patent;
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`2. From further infringing Adama Studios’ copyrighted text, photographs,
`and graphics;
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`3. From imitating, copying, reproducing, or using in any manner the
`TEVAPLANTER mark;
`
`4. From further engaging in false or deceptive advertising in the offering
`for sale of its products;
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`5. From representing, suggesting in any fashion to any third party, or
`performing any act which may give rise to the belief that Defendant, his
`business, or any of his goods and services, are authorized or sponsored
`by Plaintiffs; and
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`6. From otherwise competing unfairly with Plaintiffs in any manner.
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`Case 2:23-cv-05842-JMA-ARL Document 17 Filed 06/03/24 Page 14 of 14 PageID #: 354
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`II. CONCLUSION
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`For the reasons stated above, Plaintiffs’ Motion for Default Judgment is GRANTED IN
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`PART and DENIED IN PART as follows. Plaintiffs’ Motion is granted as to Defendant Shunchao
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`Tang, also known as Vertplanter.com, and Defendant is permanently enjoined from (i) importing,
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`selling, or offering for sale the VertPlanter Product or otherwise infringing the ‘315 Patent; (ii)
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`infringing Adama Studios’ copyrighted text, photographs, and graphics; (iii) imitating, copying,
`
`reproducing, or using in any manner the TEVAPLANTER mark; (iv) engaging in false or deceptive
`
`advertising in the offering for sale of its products; (v) representing, suggesting in any fashion to
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`any third party, or performing any act which may give rise to the belief that Defendant, his
`
`business, or any of his goods and services, are authorized or sponsored by Plaintiffs; and (vi)
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`otherwise competing unfairly with Plaintiffs in any manner.
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`However, Plaintiffs’ request for permanent injunctive relief (i) directing Amazon.com to
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`disable various listings on its website; (ii) directing Cloudfare to disable the VertPlanter website
`
`and cease all services associated with the website; and (iii) directing Instagram, TikTok, and
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`Facebook to disable various pages on their respective websites, is denied without prejudice
`
`because the request is premature. See FED. R. CIV. P. 65(d)(2); see also Arista Recs., LLC v. Tkach,
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`122 F. Supp. 3d 32, 36 (S.D.N.Y. 2015).
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`SO ORDERED.
`
`
`Dated: June 3, 2024
`Central Islip, New York
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`
`
` /s/ JMA
`JOAN M. AZRACK
`
` UNITED STATES DISTRICT JUDGE
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`14
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