PageID #: 7626

EMS submitted this affidavit, in part, to provide facts about Procom’s chargeback debt, but none of this information is alleged in the first amended complaint.

P. 6(b)(1)(A) and Local Rule 7.1(d), Plaintiff The NOCO Company (“NOCO”) respectfully requests this Court enter an order enlarging the period of time Plaintiff has to respond to Intervenors Nice Well Limited and Smart Well International Development Limited’s Motion to Modify the Default Judgment (ECF # 162) (the “Motion”), which was filed on October 10, 2023.

Under Local Rule 7.1(d), NOCO’s response to the Motion is due on or before October 24, 2023.

NOCO seeks a brief extension of seven (7) days, up to and including October 31, 2023, to file its response.

NOCO requests this extension of time in good faith and due to the heavy press of business.

Accordingly, the Court should enlarge NOCO’s response time to the Motion up to and including October 31, 2023.

In this case the Court has stated, “it is certainly a rare circumstance to have a party move to set aside or modify an injunction against another party.” (ECF No. 159) However, here a clarification of the Nice Team Default Judgment is warranted.

PageID #: 7923 For these reasons and as set forth in more detail below, the Court should modify the Nice Team Default Judgment to lift any restrictions placed on the sellers of the Imazing branded jump starters, especially Intervenors.

Intervenor’s Motion establishes that Intervenors’ interest of selling the “Imazing” branded jump starter products on Amazon has been restricted by the Nice Team Default Judgment, which was not and should not be entered against Intervenors.

As the Sixth Circuit has indicated, a court properly acts under Rule 60(a) when it is necessary to correct mistakes or oversights that cause the judgment to fail to reflect what was intended at the time of trial.

Conclusion For the foregoing reasons, Intervenors respectfully request that the Court grant their Motion to Modify the Default Judgment and lift any restrictions on the “Imazing” branded stores on the Amazon Marketplace.

TOPVISION is without information sufficient to answer the allegations of this paragraph with respect to the other parties and therefore denies them.

TOPVISION is without information sufficient to answer the allegations of this paragraph with respect to the other parties and therefore denies them.

TOPVISION is without information sufficient to answer the allegations of this paragraph with respect to the other parties and therefore denies them.

TOPVISION is without information sufficient to answer the allegations of this paragraph with respect to the other parties and therefore denies them.

TOPVISION requests a finding that this case is exceptional and award its costs and reasonable attorneys' fees incurred in connection with this action; and such further and additional relief as the Court deems just and proper.

Defendants respond by contending that because Plaintiff brought the action without an objective basis for relief, the sham litigation exception applies, and therefore the Noerr-Pennington doctrine is not applicable.

The court began by restating the principle that, “[i]n order to establish a claim of unfair competition through malicious litigation, the plaintiff must plead facts establishing the sham exception [to the Noerr-Pennington doctrine], that the opposing party filed an objectively baseless lawsuit with the subjective intent to injure the party’s ability to be competitive.” Id. After reviewing the plaintiff’s complaint and defendant’s counterclaim, the court concluded that the defendant had not pled sufficient facts to plausibly infer that the plaintiff’s trademark infringement lawsuit was objectively baseless because plaintiff had a good faith basis to file its claim when it alleged numerous facts to suggest an objective basis for the lawsuit, such as the plaintiff’s belief that defendant was misappropriately using its registered trademark in advertisements that was resulting in customer confusion.

The court stated that, “[defendant] has not pled facts sufficient to plausibly infer that a reasonable litigant would not expect success on the merits of a trademark infringement suit based on these allegations.” Id.

However, Defendants’ allegations are devoid of sufficient facts to plausibly infer that a similarly-situated litigant would not file suit to protect their intellectual property interest in their products, and that Plaintiff could not reasonably expect success on the merits of their claims.

In their Counterclaim, Defendants allege that, “[u]pon information and belief, NOCO, or its agents, are making false and misleading statements to the public ... .” (Answer at PageID #7472, ECF No. 129) (emphasis added).

83.9, attorney David A. Bernstein gives notice that he is withdrawing as counsel for Shenzhen Gooloo E-Commerce Co., Ltd. and Guangzhou Unique Electronics Co., LTD..

Defendants have been informed of counsel’s withdrawal.

Defendants will remain represented by attorneys Jay R. Campbell of Tucker Ellis LLP and Peter J. Curtin.

The foregoing was filed electronically on August 7, 2023.

Service of this filing will be made by operation of the Court’s electronic filing system upon the following counsel of record

W. Ruge to appear pro hac vice and participate in the above-captioned matter as counsel for TOPVISION, and further states in support thereof as follows:

Alex W. Ruge is of counsel for the law firm of Sheridan Ross P.C., located at 1560 Broadway, Suite 1200, Denver, CO 80202.

Mr. Ruge is licensed and admitted to practice law before the Supreme Court of Colorado (Bar No. 47830, admitted on November 3, 2014) and he is in good standing with United States District Court for the District of Colorado.

Mr. Ruge has never been disbarred or suspended from practice before any court, department, bureau or commission of any State or the United States and has never received any reprimand from any such court, department, bureau or commission pertaining to conduct or fitness as ~ member of the bar.

Alex S. Rodger, an active Shia attorney in goad standing, has agreed to associate with movant on this case.

P. 6(b)(1)(A) and Local Rule 7.1(d), Plaintiff The NOCO Company (“NOCO”) respectfully requests this Court enter an order enlarging the period of time Plaintiff has to respond to Defendant Shenzhen Jieqi Digital Technology Co., Ltd.’s (“Topvision”) Motion to Set Aside Default Judgment (the “Motion”), which was filed on March 27, 2023 (ECF # 150).

Under Local Rule 7.1(d), NOCO’s response to the Motion is due on or before April 10, 2023.

NOCO seeks an extension of fourteen (14) days, up to and including April 24, 2023, in which to file its response.

NOCO requests this extension of time in good faith and due to the heavy press of business.

Accordingly, the Court should enlarge NOCO’s response time to the Motion up to and including April 24, 2023.

Nonetheless, perhaps because of the above referenced inaccuracies, the Court determined that an "alternative means of service is permissible." (Id. at 3).

Nevertheless, even if Intervenors would have brought their Motion under Fed. R. Civ. P. 60(b), it still fails, as none of the six categories outlined in Fed. R. Civ. P. 60(b) are applicable here.

Here, even if Intervenors had alleged any grounds for setting aside the Default Judgment under Fed. R. Civ. P. 60(b)—which they have not—none apply.

Nonetheless, Plaintiff failed to do its due diligence and investigate the public record prior to filing its complaint and only named Nice Team in its Complaint.

However, none of these happened.

P. 6(b)(1)(A) and LR 7.1(d), Plaintiff The NOCO Company (“NOCO”) respectfully requests this Court enter an order enlarging the period of time Plaintiff has to respond to Non-Party Intervenors Nice Well Enterprise Limited (“Nice Well”) and Smart Well International Development Limited’s (“Smart Well”) Motion to Intervene and Set Aside or Modify the Default Judgment Against Defendant Nice Team Enterprise Limited, which was filed on January 9, 2023 (ECF No. 145).

Plaintiff seeks an extension of fourteen (14) days, up to and including February 6, 2023, in which to file its response.

Plaintiff requests this extension of time due to the heavy press of business.

NOCO’s counsel has been engulfed in preparing for trial for another matter, which was just recently resolved.

Rather, Plaintiff was initially operating under the stipulated extension until Nice Well and Smart Well withdrew their consent only four days prior to NOCO’s original response date.