None of the answers filed pleaded invalidity under § 171 as a defense or counterclaim – including the operative answers at the time of trial.

The Court may award attorneys’ fees in “the rare case in which a party’s unreasonable conduct – while not necessarily independently sanctionable – is nonetheless so ‘exceptional’ as to justify an award of fees.” Id. at 555.

Noting the issue had likely been waived because it was omitted from the Final Pretrial Order, the Court nonetheless provided Defendants with an opportunity to present any Markman issues that, in their view, required resolution before ...

Based on Gavrieli's Motion and supporting documents, and for the reasons discussed during the March 28, 2018 teleconference, the Court finds that Gavrieli has demonstrated: (a) that a temporary restraining order should be issued without further notice to Defendants given that Gavrieli will continue to suffer irreparable harm in absence of immediate relief, (b) a likelihood of success on the merits by establishing that it will likely prove infringement and will likely withstand challenges, if any, to the validity of the design patent claims asserted in its Verified Complaint; ( c) that it will suffer irreparable harm in the form of loss of customer goodwill and brand reputation if immediate injunctive relief is not granted; ( d) that Defendants will not suffer harm if injunctive· relief is granted; and (e) that entry of a temporary restraining order is in the public's interest.

Effective at 12:01 a.m. EDT on Friday, March 30, 2018, Defendants, along with their officers, directors, principals, agents, representatives, servants, employees, affiliates, successors, or assigns, and any person or entity acting on their behalf of in concert or participation with them, are hereby TEMPORARILY RESTRAINED from engaging in the manufacture, sale, offer for sale, or importing into the United States of "Terzetto Milano" shoes.

Defendants are further TEMPORARILY RESTRAINED from transferring out of the United States, assigning, conveying, encumbering, pledging, or otherwise disposing of any interest in the $694,417 of funds to be received from Kickstarter until further order of the Court.

The Temporary Restraining Order effective March 30, 2018 at 12:01 a.m. EDT entered for the good cause set forth above is hereby extended until Friday April 27, 2018 at 12:01 a.m. EDT unless modified by subsequent Order of the Court.

A hearing on Gavrieli's Motion for Preliminary Injunction is hereby set for April 16, 2018 at 10:00 a.m. EDT in Courtroom 4A.

Moreover, while the products at issue are intended to be one of many different brands of similar “ballet flats” in a crowded marketplace (a market which dates back to the 1950’s), Soto Massini’s shoes have distinctive features including a unique “orthotic” in-sole having a 3D arch support and a raised heel, which provides an additional level of comfort.

Once Defendants received Plaintiff’s original letter raising the dispute in this action less than a month ago (even though Mr. Pichler was and is on a business trip out of the country), they immediately dropped any “blue-color” option for its soles as a compromise.

Third, Plaintiff proposes that the Court enjoin Defendants from “transferring ... or otherwise disposing of any interest in the $694,417 of funds received from Kickstarter ... .” In the abstract, without any connection to any potentially infringing activity in the United States, this provision is overbroad.

The public has no interest in such rough justice, particularly in a purely commercial dispute where money damages are perfectly adequate to remedy any infringement of valid rights that is ultimately proven on a fair record.

Federal Rule of Civil Procedure 65(c) states that the “court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” The Third Circuit “interpret[s] this requirement strictly.” Globus Med., Inc. v. Vortex Spine, LLC, 605 F. App’x 126, 129 (3d Cir. 2015).

Based on Gavrieli’s Motion and supporting documents, and for the reasons discussed during the March 28, 2018 teleconference, the Court finds that Gavrieli has demonstrated: (a) that a temporary restraining order should be issued without further notice to Defendants given that Gavrieli will continue to suffer irreparable harm in absence of immediate relief, (b) a likelihood of success on the merits by establishing that it will likely prove infringement and will likely withstand challenges, if any, to the validity of the design patent claims asserted in its Verified Complaint; (c) that it will suffer irreparable harm in the form of loss of customer goodwill and brand reputation if immediate injunctive relief is not granted; (d) that Defendants will not suffer harm if injunctive relief is granted; and (e) that entry of a temporary restraining order is in the public’s interest.

Effective at 12:01 a.m. EDT on Friday, March 30, 2018, Defendants, along with their officers, directors, principals, agents, representatives, servants, employees, affiliates, successors, or assigns, and any person or entity acting on their behalf of in concert or participation with them, are hereby TEMPORARILY RESTRAINED from engaging in the manufacture, sale, offer for sale, or importing into the United States of “Terzetto Milano” shoes.

Defendants are further TEMPORARILY RESTRAINED from transferring out of the United States, assigning, conveying, encumbering, pledging, or otherwise disposing of any interest in the $694,417 of funds to be received from Kickstarter until further order of the Court.

The Court finds there is good cause for this extension given the Court’s unavailability to hold a hearing in this matter until after April 13, 2018.

A hearing on Gavrieli’s Motion for Preliminary Injunction is hereby set for April 16, 2018 at 10:00 a.m. EDT in Courtroom 4A.