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Design Furnishings v Zen Path TRO Extension

Design Furnishings v Zen Path TRO Extension

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Published by Eric Goldman
Court enjoins company from sending further eBay NOCIs over furniture auctions
Court enjoins company from sending further eBay NOCIs over furniture auctions

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Published by: Eric Goldman on Nov 15, 2010
Copyright:Attribution Non-commercial


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123456789101112131415161718192021222324252627281UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA----oo0oo----DESIGN FURNISHINGS, INC., aCalifornia corporation, Plaintiff,v.ZEN PATH LLC, a Nevada limitedliability company and DOES 1through 20, inclusive,Defendant./NO. CIV. 2:10-02765 WBS GGHMEMORANDUM AND TEMPORARYRESTRAINING ORDER----oo0oo----Plaintiff Design Furnishings, Inc. filed this action instate court against defendant Zen Path LLC alleging federal andstate law claims arising from defendant’s notices to eBay thatplaintiff’s auctions for wicker patio furniture infringe ondefendant’s pending copyright applications for the furnituredesigns and photographs of the furniture. Defendant has removedthe action to this court, and plaintiff now requests to continuethe state court’s temporary restraining order (“TRO”) based onthe filings in state court. This court heard oral arguments on
Case 2:10-cv-02765-WBS-GGH Document 9 Filed 10/21/10 Page 1 of 11
There are many black-and-white photocopies of thepictures, some more viewable than others.2the request from counsel for both sides on October 18, 2010. Thestate court’s TRO expires on October 22, 2010, when a state courthearing for a preliminary injunction was to be held.I. Factual and Procedural BackgroundBoth plaintiff and defendant sell wicker patiofurniture from the same Chinese manufacturer on eBay. (HayesDecl. ¶ 2 (Docket No. 1 Ex. 8).) In or about June of 2010,defendant contacted plaintiff, indicating that plaintiff’s saleof the furniture violated copyright or patent law and plaintiff’spictures of the furniture violated copyright law. (Id. 3.)Jennifer Hayes, the owner and president of plaintiff, stoppedusing the pictures, but refused to stop selling the furnitureunless presented with proof of defendant’s intellectual propertyrights in the furniture. (Id. ¶¶ 4-5.) On August 27, 2010,defendant filed copyright applications for (1) a round sectionalwicker furniture collection, (2) a U-shaped sectional wickerfurniture collection, (3) a modern boxy sectional wickerfurniture collection, and (4) a Capri sectional wicker furniturecollection. (Banuelos Decl. 2 (Docket No. 1 Ex. 9).) Theapplications identified the works as “sculpture/3-D artwork,Ornamental Design” and attached pictures of the furniture.
(Id.Exs. A-E.)On September 22, 2010, defendant notified eBay thatplaintiff was selling furniture within the scope of thecopyrights. (Messenger Decl. 3 (Docket No. 1 Ex. 10).) Evenif a seller does not intend to cause eBay to temporarily or
Case 2:10-cv-02765-WBS-GGH Document 9 Filed 10/21/10 Page 2 of 11
It is not clear whether plaintiff is still unable tolist new items.3permanently suspend another seller’s account, eBay temporarilyand permanently suspends a seller’s account based on notices ofclaimed infringement. (Hayes Decl. 9.)Pursuant to eBay’s policies, plaintiff has hadapproximately thirty-five auctions terminated and been preventedfrom listing new items, even non-furniture items.
(Id. ¶ 13.)Plaintiff alleges that defendant is still submitting notices toeBay, sixty-three as of the motion for a TRO in state court, andhas caused plaintiff’s policy violation rating with eBay to gofrom “high” to “very low” on one account and “high” to “low” on asecond account. (Id. 14.) The owner and president ofplaintiff states:If Defendant is not stopped from submitting repeatednotices of claimed infringement when there is absolutelyno basis to claim that DFI’s auctions are infringing onDefendant’s intellectual property rights, then eBay couldvery well permanently suspend DFI’s accounts. If thatoccurs, then my entire business will cease to exist sinceI rely on eBay for 95% of the company’s revenues. I willbe out of work and I will be forced to lay off DFI’semployees.(Id. ¶ 15.)In its Complaint originally filed in state court,plaintiff asserts claims for (1) misrepresentation ofintellectual property infringement in violation of 17 U.S.C. §512(f) of the Digital Millennium Copyright Act (“DMCA”), (2)tortious interference with a contract, (3) tortious interferencewith prospective economic advantage, (4) a violation ofCalifornia’s Unfair Competition Law, Cal. Bus. & Prof. Code §§17200-17210, and (5) declaratory and injunctive relief. (Docket
Case 2:10-cv-02765-WBS-GGH Document 9 Filed 10/21/10 Page 3 of 11

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