AMENDED MEMORANDUM AND POINTS OF AUTHORITIESIN SUPPORT OF AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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Laura A. Thomas (SBN 226028)BRANNON SOWERS HUGHEL P.C.5217 Locksley AvenueOakland, CA 94618Tel: (510) 547-8848Fax (317) 630-2813lthomas@brannonsowers.comPatricia A. Hughel (

pro hac vice

application pending)BRANNON SOWERS HUGHEL P.C.1 North Pennsylvania Street, Suite 520Indianapolis, IN 46204Tel: (317) 630-2819Fax: (317) 630-2813 phughel@brannonsowers.comAttorneys for the Plaintiff, Earthstone International, LLCUNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIAEarthstone International, LLC, ) CASE NO. CV11 – 01990)Plaintiff, )) PLAINTIFF’S AMENDEDv. ) MEMORANDUM AND POINTS OF) AUTHORITIES IN SUPPORT) OF AMENDED MOTION FOR Alibaba Group Holding Limited ) TEMPORARY RESTRAININGd/b/a AliExpress, and Alibaba.com, ) ORDER AND PRELIMINARY) INJUNCTIONDefendant. )Plaintiff Earthstone International, LLC (hereinafter “Earthstone”), owns U.S.Trademark Registration No. 2,459,853 for the mark GRILLSTONE in connection withgoods described as “Abrasive preparation for cleaning hard surfaces.” Earthstone has awell-known reputation in their industry for having excellent quality goods.Defendants, Alibaba Group Holding Limited d/b/a AliExpress and Alibaba.com(hereinafter “Alibaba.com” or “Defendant”), are actively promoting a counterfeit product

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AMENDED MEMORANDUM AND POINTS OF AUTHORITIESIN SUPPORT OF AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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bearing Plaintiff’s GRILLSTONE trademark as well as offering for sale what purports to beEarthstone’s actual product without Earthstone’s authorization. Further, Defendant’sdescription of the counterfeit product is identical to the bullet point description used byEarthstone in promotion of Earthstone’s GRILLSTONE product. Rather than create its own brand identity, Defendant is marketing a product that appears to be manufactured by aChinese company named Guangxi Nanning Dalande Energy-Saving Technology Co., Ltd.Plaintiff brings this Motion for Temporary Restraining Order in an effort to put animmediate halt to the ongoing sales and distribution of these infringing goods of unknownquality and composition since these goods are made for direct contact with surfaces used for food preparation. If Defendant’s counterfeit product contains unsafe materials, such asarsenic, as found in a prior counterfeit product, consumers may be at risk for serious healthrisk or even death. Further, current and continued use of the GRILLSTONE mark by theDefendant in connection with a similar or identical product as Earthstone’s could bedevastating to Earthstone’s reputation; as well, the Defendant’s selling the counterfeit product, or Earthstone’s actual product, at a cost below that of Earthstone’s product woulddraw business away from Earthstone.I.

BackgroundA.

Earthstone’s Extensive Product Development and Promotion EffortsEarthstone has been promoting its high quality GRILLSTONE product since February2000. Through considerable effort and expense, Earthstone has developed wide-spread brand recognition for quality and safety and promotes and distributes the GRILLSTONE product both in the United States and overseas.B.

Defendant’s Wrongful Acts

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AMENDED MEMORANDUM AND POINTS OF AUTHORITIESIN SUPPORT OF AMENDED MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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On or about March 10, 2011, Plaintiff’s discovered Defendant’s promotion of thecounterfeit product on their websitewww.aliexpress.com. Defendant is not authorized touse the GRILLSTONE trademark as evidenced by the Affidavit submitted herewithexecuted by Earthstone’s Executive Chairman, George Morandin. Not only does theDefendant use the GRILLSTONE trademark in connection with a product that looks similar,if not identical to the Plaintiff’s product, but the Defendant’s description of the product isidentical to the bullet point description used by the Plaintiff.The Plaintiff’s description, copied by the Defendant, is as follows: NO MORE WIRE BRUSHES!



Grill cleaning 4 times faster than wire brushes

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Non-toxic, odorless and without harmful chemicals

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May be used for grill cleaning on hot or cold grill surfaces

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Keeps your grill free from bacteria attracted by food residue

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Will not clog like wire brushes

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Outperforms wire brushes and scrub pads for grill cleaning!Defendant uses the above description verbatim in its promotion of its counterfeit product.Further, Defendant is offering for sale what purports to be Plaintiff’s actual product on their websitewww.alibaba.com. The photo of the product looks identical to Plaintiff’s packageand the “Supplier” information to the right of the picture actually identifies EarthstoneInternational, LLC. Earthstone has not authorized the Defendant to sell their GRILLSTONE product or any other product.II.

Argument

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