Case 2:23-cv-01840-WSS Document 96 Filed 12/29/23 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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`AFG MEDIA LTD,
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`v.
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`POPTREND-OFFICIAL, et al,
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`Plaintiff,
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`Defendants.
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`Civil Action No. 2:23-cv-1840
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`Hon. William S. Stickman IV
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`MEMORANDUM OPINION
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`WILLIAM S. STICKMAN IV, United States District Judge
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`Plaintiff, AFG Media Ltd (“AFG”) asks the Court to enter a preliminary injunction
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`enjoining Defendants1 from their unauthorized use of AFG’s copyrighted inflatable alien
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`costume. (ECF No. 4). AFG asserts that by “promoting, selling, offering for sale and
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`distributing knock-offs,” Defendants are infringing on AFG’s copyright. (ECF No. 6, p. 13).
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`For the reasons explained below, the Court holds that AFG met its burden in demonstrating that
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`it is entitled to preliminary injunctive relief.
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`I.
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`STANDARD OF REVIEW
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`The grant or denial of a preliminary injunction is within the sound discretion of a district
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`court. See Reilly v. City of Harrisburg, 858 F.3d 173, 178–79 (3d Cir. 2017) (“District courts
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`have the freedom to fashion preliminary equitable relief so long as they do so by ‘exercising their
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`sound discretion.’” (citation omitted)). The primary purpose of preliminary injunctive relief is
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`1 Remaining defendants in this case are Poptrend-Official; Camlinbo; Cubovie; Decalare; Easy-
`Fit; Goiden; Hacosoon Flagship Store; Hacosoon Shop; KOOY OFFICIAL STORE; Linkingus;
`MH ZONE, -SeeNew-; Stegosaurus; TGP US; Unilove; Xinruida-US; YEAHBEER store;
`Shenzhen Mojin Technology Co., LTD; DODYSNAS; Kilkwhell; Nightwill.; Suminiy.US
`(collectively, “Defendants”).
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`Case 2:23-cv-01840-WSS Document 96 Filed 12/29/23 Page 2 of 18
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`“maintenance of the status quo until a decision on the merits of a case is rendered.” Acierno v.
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`New Castle Cnty., 40 F.3d 645, 647 (3d Cir. 1994). The “status quo” refers to “the last,
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`peaceable, noncontested status of the parties.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700,
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`708 (3d Cir. 2004).
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`“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
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`v. NRDC, Inc., 555 U.S. 7, 24 (2008). Rather, such relief “should be granted only in limited
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`circumstances.” Kos Pharms., 369 F.3d at 708 (citation omitted). A moving party “must
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`establish entitlement to relief by clear evidence.” Doe v. Boyertown Area Sch. Dist., 897 F.3d
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`518, 526 (3d Cir. 2018). Specifically, the movant must demonstrate:
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`(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if
`the injunction is denied; (3) that granting preliminary relief will not result in even
`greater harm to the nonmoving party; and (4) that the public interest favors such
`relief.
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`Kos Pharms., 369 F.3d at 708; see also Winter, 555 U.S. at 20. The first two factors are “the
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`most critical,” and the moving party bears the burden of making the requisite showings. Reilly,
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`858 F.3d at 176, 179 (citations omitted). Once those “gateway factors” are met, a court should
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`“consider[] the remaining two factors” and then “determine[] in its sound discretion if all four
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`factors, taken together, balance in favor of granting the requested preliminary relief.” Id. at 179.
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`In reaching its decision on a request for injunctive relief, a district court sits as both the
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`trier of fact and the arbiter of legal disputes. A court must, therefore, make “findings of fact and
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`conclusions of law upon the granting or refusing of a preliminary injunction.” Bradley v.
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`Pittsburgh Bd. of Educ., 910 F.2d 1172, 1178 (3d Cir. 1990) (citing Fed. R. Civ. P. 52(a)(2)).
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`This “mandatory” requirement of Federal Rule of Civil Procedure Rule 52(a)(2) must be met
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`“even when there has been no evidentiary hearing on the motion.” Id. Nevertheless, at the
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`preliminary injunction stage, “procedures [ ] are less formal and evidence [] is less complete than
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`Case 2:23-cv-01840-WSS Document 96 Filed 12/29/23 Page 3 of 18
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`in a trial on the merits.” Kos Pharms., 369 F.3d at 718; see also AT&T Co. v. Winback &
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`Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994) (“[T]he grant or denial of a
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`preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate
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`balancing [that] is the responsibility of the district judge.” (citations omitted)). Accordingly, a
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`court “may rely on affidavits and hearsay materials which would not be admissible evidence.”
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`Kos Pharms., 369 F.3d at 718 (quoting in parenthetical Levi Strauss & Co. v. Sunrise Int’l
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`Trading, Inc., 51 F.3d 982, 985 (11th Cir. 1995)). But the weight given to such materials will
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`“vary greatly depending on the facts and circumstances of a given case.” Id. at 719. A court is
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`also tasked with assessing the credibility of witness testimony and may base the decision to grant
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`or deny a preliminary injunction on credibility determinations. See, e.g., Hudson Glob. Res.
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`Holdings, Inc. v. Hill, 2007 WL 1545678, at *8 (W.D. Pa. May 25, 2007).
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`II. PROCEDURAL AND FACTUAL BACKGROUND
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`On October 24, 2023, AFG filed a complaint (“Complaint”) and an ex parte motion for
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`(1) a temporary restraining order; (2) an order restraining assets and merchant storefronts; (3) an
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`order to show cause why a preliminary injunction should not issue; and (4) an order authorizing
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`expedited discovery. (ECF Nos. 2, 4). On the same day, the Court held a telephonic motion
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`hearing pertaining to the ex parte temporary restraining order (“TRO”). (ECF No. 19). The
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`Court granted the TRO and scheduled a videoconference injunction hearing for November 6,
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`2023. (ECF Nos. 20, 22). AFG then filed a motion for preliminary injunction on October 31,
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`2023. (ECF No. 28). On November 3, 2023, AFG filed another ex parte motion seeking to
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`extend the TRO, continue the show cause hearing, and modify the schedule. (ECF No. 29).
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`The Court, finding that good cause existed for AFG’s requests, granted its motion and
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`presided over the rescheduled preliminary injunction hearing on December 7, 2023 (the
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`Case 2:23-cv-01840-WSS Document 96 Filed 12/29/23 Page 4 of 18
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`“Hearing”). (ECF Nos. 30, 77). At the Hearing, counsel for Defendants Poptrend-Official,
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`Decalare, Easy-Fit, Hacosoon Flagship Store, Hacosoon Shop, Stegosaurus, YEAHBEER Store
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`(collectively, “Toloco Defendants”), and Camlinbo argued against the imposition of a
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`preliminary injunction. The parties chose not to expand the evidentiary record by presenting
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`evidence or witnesses. (ECF No. 90, pp. 5, 15–16, 25–26). After the Hearing, however, Toloco
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`Defendants sought leave, which the Court granted, to file additional declarations. (ECF Nos. 79,
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`80).
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`AFG, a United Kingdom private limited company, designs and sells costumes worldwide
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`under the registered trademark MORPH®. (ECF No. 2, ¶¶ 1, 14–15, 26). The costume at issue is
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`“a whimsical alien body, face, and profile with dayglow green coloring, and jet black eyes, nose
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`and mouth, hosting a human with black top, royal blue pants, and white sneakers with black
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`laces” (the “Alien Costume” or “Costume”). (Id. ¶ 4). The Alien Costume “gives the viewer the
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`impression that a person is being carried around by an alien.” (Id. ¶ 26). AFG asserts that it has
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`a registered United States copyright protecting the 2-D sculptural aspect of the Costume. (Id. ¶
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`8); (ECF No. 2-6). The Certificate of Registration (“Certificate”) issued by the United States
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`Copyright Office details that the Alien Costume was completed in 2016 and first published on
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`August 2, 2017. (ECF No. 2-6, p. 1). The Copyright Office granted certification to AFG on
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`September 16, 2020. (Id.).
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`Defendants are individuals and/or business entities engaged in e-commerce that “target
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`their business activities toward consumers throughout the United States” through online
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`marketplaces such as Amazon, eBay, Joybuy, Temu, Wish, Walmart, and AliExpress. (ECF No.
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`2, ¶ 18). Toloco Defendants “are independently owned Chinese entities that operate seven
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`Amazon.com storefronts,” and each storefront is located in China. (ECF No. 58, p. 12).
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`Camlinbo “is an Amazon stores [sic] operated by a Chinese individual Lin Hui Lv.” (ECF No.
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`62, p. 2). AFG alleges that Defendants are engaging in activities that infringe on its copyright,
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`specifically “promoting, selling, offering for sale and distributing goods bearing and/or using
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`confusingly similar imitations of the [Alien Costume], or substantially similar copies of [the
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`Alien Costume], while marketing Infringing Products in a willful attempt to pass off their knock-
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`off products as genuine versions of [the Costume].” (ECF No. 2, ¶ 33).
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`In Toloco Defendants’ submitted declarations, each seller’s legal representative states
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`when their Alien Costumes were first offered for sale on their respective Amazon storefronts.2
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`(ECF No. 58-1, pp. 3–4); (ECF No. 58-2, p. 3); (ECF No. 58-4, p. 4); (ECF No. 58-5, p. 4); (ECF
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`No. 58-6, p. 3); (ECF No. 58-7, pp. 3–4). The first available dates vary from the earliest being
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`March 15, 2019, to October 2, 2023, as the latest. (ECF No. 58-6, p. 3); (ECF No. 58-7, p. 4).
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`Each of the Toloco Defendants claim that they independently created their Costume in 2018 after
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`referring to “various designs,” notably two inflatable costumes seen in YouTube videos. (ECF
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`No. 58-1, pp. 8–10); (ECF No. 58-2, pp. 7–9); (ECF No. 58-3, pp. 7–9); (ECF No. 58-4, p. 6);
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`(ECF No. 58-5, pp. 7–8); (ECF No. 58-6, p. 6); (ECF No. 58-7, p. 7). Additionally, Toloco
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`Defendants cite Easy-Fit’s introduction of inflatable costumes featuring foot fins as another
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`source of their independent inspiration. (ECF No. 58, p. 26).
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`Beginning on October 16, 2023, AFG’s counsel investigated Defendants’ allegedly
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`infringing activity by purchasing the Costume from their Amazon and Walmart storefronts.
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`(ECF Nos. 13, 13-1, 13-2, 13-3, 13-4, 13-5, 13-6, 13-7, 13-8, 13-9). AFG submits that the
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`majority of these Alien Costumes had a first available date between September and October
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`2 Neither Stegosaurus nor Camlinbo provide a first available date for the Alien Costumes sold on
`their respective Amazon storefronts. (See generally ECF Nos. 58-3, 62-1).
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`2023.3 (ECF No. 74-2, pp. 3, 5, 7, 9, 11). A week after the first investigative purchases, AFG
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`filed the Complaint and first ex parte motion. (ECF Nos. 2, 4).
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`III. ANALYSIS
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`A.
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`AFG has sufficiently demonstrated that it is likely to succeed on the
`merits of its underlying claim for copyright infringement.
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`In order to obtain the requested preliminary injunctive relief, AFG must demonstrate that
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`“it can win on the merits.” Reilly, 858 F.3d at 179. At this preliminary stage, AFG need not
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`make “a more-likely-than-not showing of success on the merits.” (Id. at 179, n.3). Instead, it
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`must “show a likelihood of success on the merits (that is, a reasonable chance, or probability, of
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`winning).” Singer Mgmt. Consultants v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (en banc)
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`(emphasis in original). This “requires a showing significantly better than negligible but not
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`necessarily more likely than not.” Reilly, 858 F.3d at 179. To establish copyright infringement,
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`AFG must demonstrate (1) ownership of a valid copyright and (2) that Defendants copied
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`protected material. Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290 (3d Cir.
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`1991) (citations omitted).
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`1. Ownership of a Valid Copyright
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`“[A] certificate of registration made before or within five years after the first publication
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`of the work shall constitute prima facie evidence of the validity of the copyright.” 17 U.S.C. §
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`410(c); see also Ford Motor Co., 930 F.2d at 290–91 (“Certificates of registration issued by the
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`U.S. Copyright Office constitute prima facie evidence of the validity and ownership of that
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`material.”). A plaintiff’s possession of a valid copyright registration certificate “creates a
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`rebuttal presumption that the work is copyrightable and that [the plaintiff] has a valid interest.”
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`3 There are two exceptions to this assertion. Camlinbo’s and Poptrend-Official’s Alien Costumes
`were first available on June 8, 2022, and April 28, 2021, respectively. (ECF No. 74-2, p. 13, 15).
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`F.A. Davis Co. v. Wolters Kluwer Health, Inc., 413 F. Supp. 2d 507, 510 (E.D. Pa. 2005)
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`(citations omitted). On a motion for preliminary injunction, a court must “determine whether a
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`copyright registration has been successfully rebutted.” Midway Mfg. Co. v. Bandai-Am., Inc.,
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`546 F. Supp. 125, 139–40 (D.N.J. 1982) (citation omitted).
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`Here, AFG attached its Certificate for the Alien Costume to the Complaint. (ECF No. 2-
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`6). The Certificate states that AFG’s first publication of the Costume was on August 2, 2017.
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`(Id. at 1). On July 29, 2021, the Copyright Office granted AFG registration of the Alien
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`Costume with an effective date of September 16, 2020. (Id.). Since registration occurred within
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`five years of the Costume’s first publication, the Certificate is prima facie evidence of the
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`validity of AFG’s copyright in the Alien Costume. Therefore, the Court must determine whether
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`Defendants have successfully rebutted this presumption.
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`Toloco Defendants argue that AFG’s copyright is invalid because (1) AFG’s Costume “is
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`a useful article with no separable copyrightable features” and (2) AFG’s design lacks novelty
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`and/or originality. (ECF No. 58, pp. 24–26). To further its novelty argument, Toloco
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`Defendants point to the combination of images from two YouTube videos that allegedly
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`demonstrate that AFG merely imitated other products in its design.4 (Id.). AFG responds to
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`Toloco Defendants’ first argument stating that various sculptural features of the Costume “may
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`be viewed separately from the notion that the item may be worn as a costume” and thus the work
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`is not “merely utilitarian.” (ECF No. 74, p. 15). AFG rebuts Toloco Defendants’ second
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`argument by asserting that “novelty” is not a requirement to obtaining a copyright registration;
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`rather, the work must be original. (Id. at 16). AFG points out that the Copyright Office engaged
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`4 The first video depicts an inflatable alien Halloween decoration, and the second video shows an
`inflatable costume of a “hugging-shaped grim reaper inflatable costume with blue pants.” (Id. at
`25).
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`in this originality analysis prior to issuing AFG its registration, and thus the Certificate should
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`still be entitled to the presumption of validity. (Id.).
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`Camlinbo asserts that AFG cannot have a valid copyright in a costume because a costume
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`is not a sculpture. (ECF No. 62, pp. 4–5). AFG highlights that the United States Court of
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`Appeals for the Third Circuit affirmed a district court’s issuance of a preliminary injunction in a
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`copyright infringement suit over a full-body banana costume in Silvertop Assocs. Inc. v.
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`Kangaroo Mfg. Inc., 931 F.3d 215 (3d Cir. 2019). (ECF No. 74, pp. 16–17). Because of this
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`precedential decision, AFG argues that the artistic features of the costume, when viewed
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`separately from the intrinsic utilitarian function, are copyrightable. (Id. at 17).
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`a. Useful Article
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`A “useful article” is one that has “an intrinsic utilitarian function that is not merely to
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`portray the appearance of the article or to convey information.” Silvertop Assocs. Inc. v.
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`Kangaroo Mfg. Inc., 931 F.3d 215, 219 (3d Cir. 2019) (citations omitted). Such articles may
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`only receive copyright protection when they “incorporate[] pictorial, graphic, or sculptural
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`features that can be identified separately from, and are capable of existing independently of, the
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`utilitarian aspects of the article.” Id. (quotation omitted). A court must engage in a separability
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`analysis to determine whether a useful article contains copyrightable features. Id. The
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`separability analysis requires a court to ask two questions: (1) “can the artistic feature of the
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`useful article’s design ‘be perceived as a two- or three-dimensional work of art separate from the
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`useful article[?]” and (2) “would the feature ‘qualify as a protectable pictorial, graphic, or
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`sculptural work either on its own or in some other medium if imagined separately from the useful
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`article[?]” Id. at 219–20 (quoting Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405,
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`424 (2017)).
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`The first question is answered by looking at the useful article to see if “some two- or
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`three-dimensional element that appears to have pictorial, graphic, or sculptural qualities” can be
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`spotted. Id. at 220 (quotation omitted). A court engaging in this first step of the analysis must
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`consider whether a “specific combination of elements” gives a sculpture “its unique look.” Id.
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`(quotation omitted). These combined features may include “texture, color, size, and shape,” and
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`the features’ individual inability to receive copyright protection is not dispositive. Id. (quotation
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`omitted). The second requirement necessitates that the separately identified features must exist
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`as their own pictorial, graphic, or sculptural work apart from the useful article. Id. Overall, this
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`“two-part inquiry effectively turns on whether the separately imagined features are still
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`intrinsically useful.” Id.
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`Here, the Court recognizes that the Costume has such qualities, where the combined
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`artistic features of the Alien Costume are separable and capable of independent existence as a
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`copyrightable work, specifically a sculpture. The copyrightable aspect of the Costume is not that
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`the sculptural features in combination depict a large alien holding up a man.5 Rather, it is the
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`combination of the color, shape, and size of the alien in conjunction with the combination of the
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`color, shape, and size of the man being held that would be subject to copyright protection. See
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`Silvertop Assocs. Inc., 931 F.3d at 220–21. AFG explicitly chose for the alien to appear as a
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`large bright green being with a rounded head, prominent oval-shaped eyes, and small additional
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`facial features that display a neutral expression. The Costume was designed for this exact alien
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`to hold up a smaller appearing man in front of it, with the man wearing a black long-sleeve shirt,
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`blue pants, and white tennis shoes with black lines on them. It is this specific combination of
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`5 AFG highlights that there are other inflatable alien costumes being sold on Amazon that, while
`similar in concept, are substantially different from AFG’s and Defendants’ products. (ECF No.
`74, pp. 8–10).
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`artistic features that give the sculpture its unique look and these features are capable of
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`independent existence as a sculpture apart from the costume as a useful article.
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`b. Originality
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` One way for a defendant to rebut the presumed validity of a plaintiff’s copyright
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`registration is to show that the work lacks originality. See Midway Mfg. Co., 546 F. Supp. at
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`140. “Original, as the term is used in copyright, means only that the work was independently
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`created by the author … and that it possesses at least some minimal degree of creativity.” Feist
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`Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991) (citation omitted). “[T]he
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`requisite level of creativity is extremely low,” where “even a slight amount will suffice.” Id.
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`Originality does not require novelty; an original work may be one that “closely resembles other
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`works so long as the similarity is fortuitous, not the result of copying.” Id. at 345–46.
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`Here, even if AFG was influenced by the images in the two YouTube videos as Toloco
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`Defendants contend, the Costume is not a copy of these images. Instead, the videos merely
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`inform where AFG’s design ideas may have originated from, but there is no direct copying of
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`either of these works, and thus the costume was independently created and possesses the
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`requisite minimal creativity. The Court finds that AFG’s Alien Costume is original and still is
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`entitled to the presumptive validity of its issued copyright.
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`Accordingly, Defendants’ arguments as to why AFG does not have a valid copyright in
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`the Costume fail. AFG has demonstrated the first prong of the copyright infringement
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`analysis—ownership of a valid copyright—and the Court must next consider whether
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`Defendants engaged in unauthorized copying of AFG’s protected work.
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`2. Unauthorized Copying of Protected Material
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`Toloco Defendants argue that they did not copy AFG’s costume because they
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`“independently developed their alien costume design, wholly separate and apart from” AFG’s
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`design in 2018. (ECF No. 58, p. 26). They point to the two YouTube videos previously
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`discussed as well as one defendant’s, Easy-Fit’s, introduction of inflatable costumes featuring
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`foot fins as the inspiration for their independent design. (Id.). Camlinbo does not explain how it
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`created its Costume design. (See generally ECF No. 62).
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`Since direct evidence of copying is rarely available, it may be inferentially proven by
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`demonstrating that someone who had access to a copyrighted work used material substantially
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`similar to the work in a manner that interferes with a copyright owner’s rights afforded under 17
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`U.S.C. § 106. Ford Motor Co., 930 F.2d at 291 (citations omitted). “Substantially similar” is
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`broken down to an extrinsic test and an intrinsic test. Id. The extrinsic test considers “whether
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`there is sufficient similarity between the two works in question to conclude that the alleged
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`infringer used the copyrighted work in making his own.” Id. (quoting Whelan Assocs., Inc. v.
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`Jaslow Dental Lab’y, Inc., 797 F.2d 1222, 1232 (3d Cir. 1986)). The intrinsic test, on the other
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`hand, looks at whether “the copying was an unlawful appropriation of the copyrighted work”
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`viewed from the perspective of a lay person. Id. (citations omitted).
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`AFG’s Costume was first published on its website on August 2, 2017. (ECF No. 74-3, p.
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`2); (ECF No. 2-6, p. 1). During the same year, AFG listed the Alien Costume for sale on
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`Amazon, the Costume was publicized on television in the United Kingdom, and a YouTube
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`video was posted where various people wore the Costume. (ECF No. 74-3, p. 2). This
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`demonstrates that there were available avenues for Defendants to access the copyrighted work
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`before their alleged independent creation of the design in 2018.
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`In addition to access, Defendants’ design is also “substantially similar” to AFG’s
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`Costume. Looking at AFG’s Alien Costume and Defendants’ Alien Costumes side-by-side, they
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`are nearly identical. All of the costumes include a large bright green alien with a rounded head,
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`prominent eyes, and a neutral facial expression holding a small man up in front of it who is
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`wearing a black long-sleeve shirt, blue pants, and white tennis shoes with black lines. There is
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`no question that the two works are, at the very least, “substantially similar.”
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`Finally, through Defendants’ “promoting, selling, offering for sale and distributing” of
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`their Costumes, they have interfered with AFG’s exclusive rights afforded to it under § 106 to
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`reproduce and distribute its Costume. Therefore, at this stage, AFG has inferentially proven that
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`Defendants copied its protected material in order to design and subsequently promote and sell
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`their Alien Costumes.
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`By demonstrating that it both has a valid copyright and that Defendants engaged in
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`actual, unauthorized copying of its copyrighted material, the Court finds that AFG is likely to
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`succeed on the merits of its underlying copyright infringement claim, and it has met its burden
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`pertaining to the first prong of the preliminary injunction analysis.
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`B.
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`AFG has shown that it will suffer irreparable harm absent the Court
`granting its requested preliminary injunction.
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`AFG must next show that “it is more likely than not to suffer irreparable harm in the
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`absence of preliminary relief.” Reilly, 858 F.3d at 179. In other words, AFG must “demonstrate
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`potential harm which cannot be redressed by a legal or an equitable remedy following a trial.”
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`Acierno, 40 F.3d at 653. This potential harm must be “immediate”—it is insufficient to warrant
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`preliminary injunctive relief “if the harm will occur only in the indefinite future.” Campbell
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`Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992) (citation omitted). To obtain
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`injunctive relief in copyright infringement suits, “a moving party must show that it will suffer
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`irreparable harm that is causally attributable to the challenged infringement.” TD Bank N.A. v.
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`Hill, 928 F.3d 259, 280 (3d Cir. 2019) (citations omitted).
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`If a plaintiff delays bringing its request for injunctive relief, a court must consider the
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`length of the alleged delay and surrounding circumstances. E.E.O.C. v. Great Atl. & Pac. Tea
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`Co., 735 F.2d 69, 81 (3d Cir. 1984). An unreasonable delay will negate the presumption of
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`irreparable harm. FMC Corp. v. Control Sols., Inc., 369 F. Supp. 2d 539, 582 (E.D. Pa. 2005).
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`For copyright infringements claims, the plaintiff’s duty to file suit “does not arise until the
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`plaintiff learns of the alleged infringement.” Id. (citing MacLean Assocs., Inc. v. William M.
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`Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 780 (3d Cir. 1991)).
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`Toloco Defendants argue that AFG delayed in asserting its claim of copyright
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`infringement, and accordingly cannot demonstrate irreparable harm. (ECF No. 59, p. 27). To
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`highlight this delay, Toloco Defendants point to their sales of the Costume first dating back to
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`March 2019, over a year before AFG obtained its copyright registration and two years after AFG
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`first published its design. (Id. at 28). AFG replies that it did not delay because it acted in
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`response to learning of Defendants’ Alien Costume Amazon listings that had first available dates
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`of September and October 2023. (ECF No. 74, p. 18).
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`Camlinbo asserts that AFG has not met its burden in showing irreparable harm because if
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`AFG were to prevail on its claim, it would “be adequately remedied by the actual and statutory
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`damages provided by the Copyright Act.” (ECF No. 62, p. 6). Additionally, Camlinbo contends
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`that AFG can only demonstrate irreparable harm if there will be “continuing infringement.”
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`(Id.). Since Camlinbo has agreed not to sell the Alien Costume pending this litigation, it argues
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`that there is no threat of continuing infringement, which it asserts is required for AFG to obtain a
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`preliminary injunction. (Id.). AFG responds that Defendants’ continued sale of the Costume
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`Case 2:23-cv-01840-WSS Document 96 Filed 12/29/23 Page 14 of 18
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`would further damage AFG’s business and intellectual property with harm taking “the form of
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`unquantifiable lost sales, loss of goodwill and loss of control of its reputation with authorized
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`licensees, retailers and consumers” as well as potential exposure to legal liability for injury.
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`(ECF No. 6, p. 46).
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` As to Toloco Defendants’ arguments of delay, the Court finds that AFG timely filed this
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`lawsuit. The record demonstrates that AFG did not receive actual knowledge of Defendants’
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`allegedly infringing conduct until AFG’s counsel began its investigation of Defendants’ products
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`by buying the Costume from Defendants’ online storefronts. See MacLean Assocs., Inc., 952
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`F.2d at 780. The first investigative purchases occurred on October 16, 2023. (ECF No. 13-1, pp.
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`7, 15, 22, 29); (ECF No. 13-2, pp. 4, 11, 18, 25); (ECF No. 13-3, pp. 5, 12, 19); (ECF No. 13-4,
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`pp. 12, 19, 26, 33); (ECF No. 13-5, pp. 6, 20, 27); (ECF No. 13-6, pp. 5, 12). AFG filed suit
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`eight days later on October 24, 2023. (ECF Nos. 2, 4). At this stage in the proceedings, the
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`Court will not discredit what AFG sets forth as the date it attained actual knowledge.
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`Additionally, as for Camlinbo’s arguments, AFG has met its burden by showing that it
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`will not receive an adequate remedy at law. As the Court discussed previously, AFG’s Costume
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`and Defendants’ Costumes are, at the very least, substantially similar. Such similarity causes
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`market confusion, leading customers to potentially associate their interaction with a product to
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`the wrong manufacturer of that product. Thus, the harm that AFG would be subjected to absent
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`the entering of a preliminary injunction goes beyond just lost profits. The risk of irreparable
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`harm to AFG’s reputation, value, and goodwill cannot be adequately remedied at law.
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`C.
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`The balance of equities weighs in favor of granting AFG’s requested
`injunctive relief.
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`The third factor requires consideration of whether, and to what extent, Defendants will
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`suffer irreparable harm from the grant of a preliminary injunction. See Kos Pharms., 369 F.3d at
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`Case 2:23-cv-01840-WSS Document 96 Filed 12/29/23 Page 15 of 18
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`727. The Court must then “balance the hardships” likely to be suffered by AFG (if an injunction
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`is denied) and by Defendants (if an injunction is granted), id. (citation omitted), and determine
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`whether the “equities tip[] in [AFG’s] favor,” Winter, 555 U.S. at 20. “[T]he more likely the
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`plaintiff is to win, the less heavily need the balance of harms weigh in [its] favor.” Kos Pharms.,
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`369 F.3d at 729 (citation omitted).
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`Defendants assert that the injunctive relief sought threatens greater harm to them than
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`AFG. Toloco Defendants specifically emphasize that the ongoing freeze of their Amazon
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`accounts is causing their businesses to suffer irreparable harm. (ECF No. 58, p. 29). Because of
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`this freeze, Toloco Defendants stress the looming threat of these storefronts’ survival. (Id.).
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`Camlinbo contends that since AFG does not have a valid copyright in the Alien Costume,
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`Camlinbo “will be excluded from the market and will lose a significant portion of its revenue
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`that is not relevant to this case.” (ECF No. 62, p. 7). AFG presents the balance of equities with
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`the continued harm “to its business, the value, goodwill and reputation built up in and associated
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`with the [Alien Costume]” on the one hand, and Defendants losing their “ability to continue to
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`offer their Infringing Products for sale, or, in other words, the loss of the benefit of being allowed
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`to continue to unfairly profit from their illegal and infringing activities” on the other hand. (ECF
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`No. 6, p. 47).
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`The Court finds that the balance of hardships weighs in favor of AFG. AFG, as the
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`holder of a valid United States copyright, is afforded certain rights and protections upon
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`registration. These protections grant the copyright owner the exclusive rights to reproduce and
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`distribute their work for sale. 17 U.S.C. § 106 (emphasis added). A company establishes itself
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`in the marketplace—through its reputation, value, and goodwill—on the assumption that it is in
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`sole control of its intellectual property. Thus, a copyright owner loses this control when an
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`Case 2:23-cv-01840-WSS Document 96 Filed 12/29/23 Page 16 of 18
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`alleged infringer enters the marketplace and seeks to reap the benefits of the owner’s work for its
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`own gain.
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`Conversely, the harm that Defendants face will be losing the revenue stream created by
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`selling these Costumes, which as Defendants have highlighted, is only one of several products
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`they sell through their storefronts. None of the Defendants demonstrate that they will be
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`irreparably harmed by enjoining them from selling the Alien Costume. The Court, however,
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`agrees that the harm that Defendants would suffer due to the continuation of the TRO as it is
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`currently in place is broader than what would be necessary to ensure that Defendants cease their
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`allegedly infringing activities. Theref