AFG v. Poptrend-Official - Plaintiff Reply Re PI

Case 2:23-cv-01840-WSS Document 74 Filed 12/04/23 Page 1 of 25
REDACTED BY COURT ORDER
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AFG MEDIA LTD, Civil Action No. 23-cv-1840
Plaintiff,
(Judge Stickman)
v.
POPTREND-OFFICIAL, et al.,
Defendants.
PLAINTIFF’S REPLY TO OPPOSITION BY TOLOCO DEFENDANTS [ECF No. 58]

AND DEFENDANT CAMLINBO [ECF No. 62] TO MOTION FOR PRELIMINARY
INJUNCTION
Plaintiff, through undersigned counsel, now files its Reply to the Toloco Defendants’
Opposition 1 (ECF No. 58) and the Opposition of Camlinbo (ECF No. 62). Each of the
oppositions includes similar arguments concerning copying of AFG Media Ltd’s (“Plaintiff”)
copyrighted Alien Sculpture, validity of the copyright, and whether the Plaintiff meets the
standard to obtain injunctive relief. Thus, this reply addresses each of these arguments below and
distinguishes the facts that apply to Camlinbo where necessary for clarity.
I. INTRODUCTION
The defendants who have appeared to oppose the entry of a preliminary injunction have
one agenda – obtain control of the funds held by Amazon under the Temporary Restraining
Order so that these funds may be transferred outside the United States and thereby become
judgment proof. Indeed, counsel for the Toloco Defendants has refused engage in any settlement
1
The seven replying defendants are: Poptrend-Official (Defendant No. 1 on Schedule A to Complaint (“Schedule
A”)); Decalare (Schedule A, Defendant No. 5); Easy-Fit (Schedule A, Defendant No. 6); Hacosoon Flagship
Store (Schedule A, Defendant No. 8); Hacosoon Shop (Schedule A, Defendant No. 9); Stegosaurus (Schedule
A, Defendant No. 17); and YEAHBEER store (Schedule A, Defendant No. 21)(“the Defendants”).
discussions until Plaintiff has dismissed this lawsuit against the Toloco Defendants, thereby
lifting the restraint on the funds held by Amazon. In other cases, once the amount of the
restrained funds was lowered, the defense lawyers have been fired, and the defendants have
defaulted, viewing the loss of the funds left with the online marketplace (e.g., Amazon) as a cost
of doing business.2 The defendants then set up new stores on Amazon, having successfully
limited their losses for violating the intellectual property rights of others and depriving the
intellectual property owner of a remedy for the defendants’ infringement.
AFG media brought this case to fight a scourge of online counterfeiting and knock-offs of
its Alien “Pick me up” costume. Defendants are China-based sellers on the Amazon.com
marketplace whom have sold over 165,000 infringing costumes and received almost $8 million
in revenue from these infringing sales. (Malkin Dec., ¶ 3) Seven of the eight appearing
defendants attempt to portray themselves as unrelated sellers on Amazon. Yet, their counsel has
represented that they have one client – Toloco. (Malkin Dec., Ex. 1) One of the defendants
states that “[t]he Company has consistently built its own brand, TOLOCO, through high-quality
products and effective marketing.” (Declaration of Liu Ping, ¶ 16 [ECF No. 58-1]) The
TOLOCO trademark, however, is owned in the United States by Toloco Inc., a California
corporation. (Malkin Dec., ¶ 5, Ex.; 2) In fact, Toloco Inc. is the owner of 6 registered U.S.
trademarks and 2 pending U.S. trademark applications. (Id.) Although the defendants do not
attempt to explain this discrepancy, this group of 7 defendants will hereinafter be referred to as
2
Volkswagen AG v. DXZ Official Store, No. 18-cv-6611 (N.D. Ill). In that online counterfeiting case, there were
198 defendants, counsel appeared for 2 of the defendants (Second Malkin Dec., Ex. 5) and convinced the Court
to lift the restraints on the 2 defendants’ accounts, and severed the action against the two appearing defendants.
[ECF Nos. 56 and 57] The severed case at Volkswagen AG v 18-cv-7621 saw the two defendants, who had
promised the court to keep $26,000 in the accounts, deplete their accounts in 2 days, making themselves
judgment proof. The case concluded with defense counsel withdrawing, the defendants defaulting, and the Court
entering a final judgment in which the Court found “Defendants took deliberate action to avoid the asset restraint
imposed in this case.” Copies of the relevant documents are attached to the Second Malkin Dec., Ex. 6.
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“the Toloco defendants,” using the terminology of their own counsel. Moreover, since this
lawsuit was filed, AFG Media has noticed that the sale of various TOLOCO branded products
has been shifted from the defendants’ stores on Amazon to other stores, including Eaglewood
Trading (displaying the TOLOCO brand on its about page) and Tolocoinc. (Second Smeaton
Dec3, ¶¶ 26 - 27) Eaglewood Trading and Tolocoinc are not currently Defendants in this lawsuit.
The Court previously entered a Temporary Restraining Order [ECF No. 20] against
defendants. The Court also granted AFG media’s Motion for Alternative Service permitting
electronic service of process under Fed. R. Civ. Pro. 4(f)(3) (hereinafter the “Alternative Service
Order”). [ECF No. 21] On October 31, 2023, AFG Media electronically served all of the
defendants listed on Schedule A with the Summons, Complaint, Requests for Admission, and the
Temporary Restraining Order, including the Toloco Defendants. [ECF No. 34] On October 30,
2023, counsel for AFG Media was contacted by Mainleaf Law and informed Mainleaf Law was
representing the Toloco Defendants. (Malkin Dec., ¶ 6) Subsequently, Mainleaf Law advised
they were no longer representing the Toloco Defendants. (Id.)
On November 2, 2023, counsel for AFG Media was advised by Dentons Cohen & Grisby
that they were representing the Toloco Defendants. (Id. at ¶ 8) At Denton’s request, the Show
Cause Hearing schedule for November 6, 2023, was moved to December 7, 2023, and counsel
for the Toloco Defendants consented to the Temporary Restraining Order remaining in effect
until the new hearing date. (Id. at ¶ 9)
The appearing defendants now advance several arguments why a preliminary injunction
should not be entered. First, defendants argue this Court may not enter a preliminary injunction
without service of process having been completed. This argument is incorrect, and ignores the
3
Refers to the Second Declaration of Fraser Smeaton filed herewith.
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plain language of Rule 65(a)(1) – ‘[t]he court may issue a preliminary injunction only on notice
to the adverse party.” Second, defendants argue Plaintiff’s registered copyright is invalid and is
not infringed. Again, this argument is incorrect. The invalidity argument ignores the
presumption of validity (17 U.S.C. § 410(c)), ignores the Third Circuit decision affirming the
issuance of a preliminary injunction in a costume infringement case (Silvertop Assocs. Inc. v.
Kangaroo Mfg. Inc., 931 F.3d 215 (3d Cir. 2019) (Hardiman, J.), and improperly attempts to
import the patent novelty requirement to copyright law. The non-infringement argument is based
upon the incredulous coincidence that each defendant independently created the exact same
costume as Plaintiffs’ costume. Finally, defendants argue Plaintiff has not met the standards for
a preliminary injunction. Yet again, this argument is incorrect as explained in detail in the
Plaintiff’s opening brief. Furthermore, in making this argument, defendants have failed to
disclosure relevant information, thereby supporting the issuance of a preliminary injunction as
proposed by Plaintiff.
The Court should reject all of the defendants’ arguments as not persuasive and grant the
Plaintiff the preliminary injunction it seeks to protect its business from any further irreparable
harm the Defendants’ continuing conduct will cause. Chinese manufacturers like Defendants are
well-known to conduct their online businesses to the detriment of legitimate rights holders like
Plaintiff. Further, Judges in the Western District presented with inconstancies have denied
defendants motions. See, e.g., Aquapaw Brands LLC v. Yan-Peng, No. 21-1784 (W.D. Pa. May
18, 2023)(Wiegand, J) [ECF No. 88] (denying motion to set aside default after finding Defendant
made misrepresentations to the Court) and Pawesome Pet Products LLC v. COLORFLOWERS,
No. 22-629 (W.D. Pa. June 22, 2023) (Hornak, CJ) [ECF No. 153] (same). Similarly, this Court
should grant the Preliminary Injunction and deny the Defendants the relief they are seeking.
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II. BACKGROUND
1. AFG Media’s Carried by Alien “Pick Me Up” Inflatable Costume
AFG Media is the owner of US Copyright Registration No. VA 2-261-150 entitled
“Carried by Alien ‘Pick me Up’ Inflatable Costume.” (Complaint, Ex. 3B) Per the Copyright
Registration, the costume was completed in 2016 and first published in August 2017.
Each of the Defendants claim that they did not copy Plaintiff’s copyrighted Alien
Costume, but the evidence shows otherwise when viewing the point of sale products. It is
undisputed that each defendant had access to AFG Media’s copyrighted costume and the
costumes are substantially similar. The copying is demonstrative of their access to the Plaintiff’s
product prior to creating the copies they made. They deliberately used the same configurations,
same coloring for the pants and shirt of the human being hugged the alien, and, same distinct
white shoes with black laces:
Plaintiff’s Point of Sale Alien Costume

Defendant Easy Fit Infringing Product
Complaint, Exhibit 1
Second Odell Dec.4 ¶
First published August 2, 2017
First Available October 12, 2023
4
Refers to the Declaration of Dee Odell, ¶¶ 1 – 4 and Exhibit 1 filed therewith.
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Plaintiff’s Point of Sale Alien Costume Defendant YEAHBEER Infringing Product

Complaint, Exhibit 1 Second Odell Dec. ¶
First published August 2, 2017 First Available October 7, 2023

Complaint, Exhibit 1 Defendant Decalare Infringing Product
First published August 2, 2017 Second Odell Dec. ¶
First Available October 2, 2023
Defendant Hacosson Shop Infringing Product

Plaintiff’s Point of Sale Alien Costume Second Odell Dec. ¶
Complaint, Exhibit 1 First Available September 21, 2023
First published August 2, 2017
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Complaint, Exhibit 1 Defendant Hacosson Flagship Store
First published August 2, 2017 Infringing Product
Second Odell Dec. ¶
First Available September 21, 2023
Plaintiff’s Point of Sale Alien Costume Defendant Camlinbo Infringing Product

First published August 2, 2017 First Available June 8, 2022
Defendant Poptrend-Official Infringing

Plaintiff’s Point of Sale Alien Costume Product
First published August 2, 2017 First Available April 28, 2021
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Plaintiff’s Point of Sale Alien Costume Defendant Stegosauras Infringing Product

Complaint, Exhibit 1 ¶
First published August 2, 2017 First Available (Not Declared)
The evidence demonstrates that all the Defendants copied the Plaintiff’s Point of Sale
Alien Costume after they saw it. Further, there is no way that the TOLOCO Defendants all
independently created the identical costumes. All claim that they designed the product in 2018,
making the alien head more rounded than triangular, after reviewing the identical Youtube
videos (ECF No. 58-1, ¶¶ 10, 26 ECF No. 58-2, ¶¶ 24, 26 ECF No. 58-3, ¶¶ 22, 26, ECF No. 58-
4, ¶¶23, 24, ECF No. 58-5, ¶¶ 31, 32, ECF No. 58-6, ¶¶ 28, 29 (incorrectly numbered as 26),
ECF No. 58-7, ¶¶ 21, 22). The only logical explanation for all of these coincidences is that the
Declarants were related and working together when they designed their product in 2018 and were
well aware of the Plaintiff’s product when they did. This is consistent with their Counsel’s
affirmation that they are related and why Counsel referred to them TOLOCO despite Lu Ping
claiming it as Easy Fit’s brand for massage apparatus and inflatable costumes, but this is yet
another inconsistency.
2. Other Alien Costumes Being Sold on Amazon
The copying of AFG Media’s copyrighted costume by defendants becomes even more
apparent when examples of other alien costumes being sold on Amazon are viewed. Examples
of some such costumes appear below (See Malkin Dec., ¶ 9).
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https://www.amazon.com/dp/B0CCJ9DCRL/
https://www.amazon.com/dp/B0CFXLL333/
https://www.amazon.com/dp/B07TFTG735/
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https://www.amazon.com/dp/B0CG4GVN7K/
https://www.amazon.com/dp/B0CC2DWCT7/
https://www.amazon.com/dp/B0CC2C1SDW/
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These example costumes highlight the Third Circuit’s comments in affirming the
issuance of a preliminary injunction for infringement of a copyright in a banana costume.
“Although a banana costume is likely to be yellow, it could be any shade of yellow – or green or
brown for that matter. Although a banana costume is likely to be curved, it need not be – let
alone in any particular manner. And although a banana costume is likely to have ends that
resemble a natural banana’s, those tips need not look like [Plaintiff’s] black tips (in color, shape,
or size).” Silvertop Assocs. Inc. v. Kangaroo Mfg. Inc., 931 F.3d 215, 223 (3d Cir. 2019).
3. The Defendants Did Not Independently Create The Infringing Costumes
The defendants assert by way of declarations that in 2018 they each independently
created the identical costumes now accused of infringement. One of the declarations submitted
is the Declaration of Weiwei Wang [ECF No. 58-2] on behalf of defendant Poptrend-Official. It
turns out that Weiwei Wang is also the applicant for European Design No. 007076039-0001 for
INFLATABLE TOYS. In 2022, this Design Registration was declared invalid by the European
Intellectual Property Office. (Malkin Dec., Ex. 3) The EUIPO found that Weiwei Wang’s
design copied Plaintiff’s costume – the same copyrighted costume at issue in this litigation. The
EUIPO noted the following common features:
• the overall shape of the ‘alien’ part of the design is identical;

• the overall shape of the ‘human’ part of the design is identical;
• the proportions of the designs are identical;
• the positioning of the inflation fan is identical or at least close to identical;
• the shape and positioning of the mouth and nose on the ‘alien’ part of the designs are
identical;
• the shape and positioning of the eyes on the ‘alien’ part of the designs are near identical,
with the only minor difference being in the direction of the slant of the eyes;
• the number and shape of the fingers on the ‘alien’ part of the designs are identical;
• the shape of the shoes on the ‘human’ part of the design are identical; and
• the lines on the shoes of the ‘human’ part of the design are identical.
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A copy of the EUIPO invalidity decision, which includes a detailed analysis, is attached to the
Malkin Declaration, submitted herewith.
Given that the EUIPO has already found that Weiwei Wang copied Plaintiff’s
copyrighted costume, and the Toloco Defendants (and other Amazon sellers) are interrelated, res
judicata precludes these defendants from asserting they independently created the costumes
accused of infringing in this lawsuit. At a minimum, the EUIPO decision – which was not
disclosed by either Weiwei Wang in his declaration or any of the Toloco Defendants – is strong
evidence of copying and calls into question the veracity of the statements made in the
declarations submitted by the Toloco Defendants in this litigation.
III. ARGUMENT
A preliminary injunction should be entered in favor of Plaintiff against all Defendants.
Rule 65(a) of the Federal Rules of Civil Procedure authorizes the entry of a preliminary
injunction upon notice, not service of process. The Plaintiff has shown a likelihood of success
on the merits – Plaintiff’s copyright on its costume is both valid and infringed by all defendants.
The evidence shows Plaintiff is being irreparably harmed and the balance of hardships is in
Plaintiff’s favor. The Toloco Defendants’ request to delay the preliminary injunction hearing for
4 weeks cuts against there being irreparable harm to the defendants if a preliminary injunction is
entered.
A. Service of Process is Not Required for the Court to Enter a Preliminary

Injunction.
The Preliminary Injunction sought by Plaintiff would apply to the parties (e.g., the
Defendants) and non-parties that have notice of the injunction. Such a non-party in this case is
Amazon, which controls both the Defendants’ listing for sale of the infringing product and the
Defendants’ funds. Amazon is subject to the jurisdiction of the Court as Amazon is registered to
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do business in Pennsylvania and is a licensed money transmitter in Pennsylvania. ECF No. 10, ¶
10.
Fed. R. Civ. Pro. 65(a) provides that “[t]he court may issue a preliminary injunction only
on notice to the adverse party.” Even the case cited by the Toloco Defendants supports the
issuance of a preliminary injunction. “It is worth noting, however, that the issue of personal
jurisdiction does not need to be fully litigated before a court may issue a preliminary injunction.
Even if there is a dispute about whether the facts provide a basis for the court’s jurisdiction over
the defendant, a court may issue a preliminary injunction binding that defendant as long as there
is ‘a reasonable probability of ultimate success upon the question of jurisdiction when the action
is tried on the merits.’” 2011 WL 3678144 n.8 (E.D. Va. Aug. 19, 2011). The Court, however,
declined to enter a preliminary injunction finding “there is doubt as to whether there is a
‘reasonable probability’ that personal jurisdiction exists over each defendant.” Id. at *5. That is
not the case in the present case – personal jurisdiction does exist. See also H-D Michigan, LLC
v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 842 (7th Cir. 2012) (“DFS’s argument is
preposterous. … [B]ecause formal service of process under the Hague Convention or other
provisions of law can take months, acceptance of DFS’s argument would have the unfortunate
effect of immunizing most foreign defendants from needed emergency injunctive relief. There is
a reason Rule 65 allows emergency injunctive relief before service of process, and this case
provides a good example.”).
Moreover, in the online counterfeiting context, courts routinely enter preliminary
injunctions before service of process. Notice under Rule 65(a), however, is required. Whirlpool
Corp. v. Shenzhen Sanlida Electrical Technology Co., Ltd., 80 F.4th 536, 543 (5th Cir. 2023)
(Although defendant contended that the district court simply had to wait until service of process
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was perfected before ordering any, even emergency relief, “we find that the district court did not
err in concluding that a preliminary injunction requires only notice, not perfected service of
process”). Indeed, in Smart Study Co., Ltd. v. Acuteye-Us, 620 F.Supp.3d 1381 (S.D.N.Y. 2022)
– the case relied upon by the Toloco Defendants – the court entered a preliminary injunction that
has been in place since August 3, 2021 [SDNY 21-cv-5860 EFC No. 16], the court has now
entered a default judgment with a permanent injunction against 49 of the 51 defendants
referenced in the case [SDNY 21-cv-5860 EFC No. 134], and is considering how to proceed
against the two remaining defendants.
The appropriate manner for the Toloco Defendants to contest personal jurisdiction is a
Rule 12 motion to dismiss, not in the context of a preliminary injunction hearing where it is
undisputed that the Toloco Defendants have had the notice required under Rule 65(a).
B. Plaintiff has Shown Likelihood of Success on the Merits.
The Defendants all contend that the Court incorrectly found that the Plaintiff is likely to
succeed on the merits of its claim of copyright infringement. However, all the evidence of record
establishes that the Plaintiff has a valid and enforceable copyright registration and that the
Defendants, having clear access to the published version of Plaintiff’s work, all made
substantially similar copies. Further, Plaintiff through its own evidence and now that of the
Defendants’ declarations handily proves irreparable harm. The Defendants dominated and
controlled the market with copies of the Plaintiff’s copyrighted Alien Costume.
1. The Court Concluded that Plaintiff’s Evidence Supports the Finding that
Plaintiff is Likely to Succeed on the Merits
This Court already reviewed all of the evidence of record and concluded that the Plaintiff
established a likelihood of success on the merits and entered the Temporary Restraining Order in
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this case. [ECF No. 20] Defendants now seek a reversal of that finding arguing Plaintiff’s
sculpture is utilitarian and not novel.
2. The Plaintiff’s Copyright Registration is Valid
Since the Plaintiff first published its copyrighted Alien Costume sculpture on August 2,
2017 and registered it September 16, 2020 (Second Fraser Dec., ¶¶ 1 – 6), the Plaintiff is entitled
to a statutory presumption of validity. See 17 U. S. C. § 410 (c)( “In any judicial proceedings the
certificate of a registration made before or within five years after first publication of the work
shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the
certificate.”).
According to the Copyright Compendium 924.2, the design of a useful article may be
considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design
incorporates pictorial, graphic, or sculptural features that can be identified separately from, and
are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101.
Here, the various sculptural features of the Alien Costume may be viewed separately from the
notion that the item may be worn as a costume. Thus, the Plaintiff’s sculpture is not merely
utilitarian and such an argument should be rejected by the Court.
In addition to the presumption of validity accorded Plaintiff’s copyright registration,
Plaintiff obtained and filed herewith the Expert Declaration of Frederick H. Colen, Esq. (“Colen
Dec.”). Attorney Colen has been a practicing attorney since 1975 and was a partner for more
than 28 years in the Intellectual Property Group at the law firm now known as Reed Smith LLP.
Colen Dec , ¶¶ 1 – 6. He held various positions at Reed Smith, including, Head and Deputy Head
of the Intellectual Property Group. Id. After reviewing the Plaintiffs’ Copyright Registration, the
Correspondence from the Copyright Office, and applying all of his legal expertise and
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knowledge, Attorney Colen concludes that the Plaintiff’s Copyright Registration is valid. See
Colen Dec., generally, including ¶¶ 9 – 16. Colen attests that the usefulness of an item does not
disqualify it from being registered as a copyright. Id., ¶ 11. Colen also attests that novelty is not
a requirement in order to obtain a Copyright Registration. Id., ¶ 12.
Likewise, the Defendants’ argument that the Plaintiff’s copyright is invalid because it is
not novel is not supported by the law and they do not and cannot cite a single case in support of
their novelty argument. As set forth in the Colen Declaration, copyright law merely requires that
the work satisfy the originality requirement. Id. The U.S. Copyright Office will examine each
work in isolation to determine whether it satisfies the originality requirement. Id., citing
Copyright Compendium 310.1. The fact that a work may be novel, distinctive, innovative, or
even unique is irrelevant to this analysis. Id., citing H.R. REP. NO. 94-1476, at 51 (1976),
reprinted in 1976 U.S.C.C.A.N. at 5664 (stating “the standard of originality established by the
courts . . . does not include requirements of novelty [or] ingenuity” and that Congress did not
intend “to enlarge the standard of copyright protection” to impose these requirements). Id.
Defendant Camlimbo incorrectly argues that Plaintiff is not entitled to a copyright
registration on its Alien Costume sculpture. The Toloco Defendants also argue incorrectly that
Plaintiff’s copyright is invalid as being utilitarian and not novel. Since Plaintiff’s copyright
meets the originality requirement of the Copyright Act, the Defendants’ arguments fail.
Camlinbo relies on inapplicable law from the Second Circuit and argues that the Plaintiff
was not entitled to a copyright on its Alien Costume sculpture. The Toloco Defendants cite the
case of Lanard Toys Ltd. v. Dolgencorp LLC, 958 F. 3d 1337, 1345 (Fed. Cir. 2020), in which
the Federal Circuit applies the law of the 11th Circuit (the regional circuit) on the copyright
claim, and to support their argument that Plaintiff’s copyright is invalid. No defendant, however,
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addresses the Third Circuit decision, which is the appropriate precedential decision for this
Court, affirming the district court’s preliminary injunction for copyright infringement of a full-
body banana costume. Silvertop Associates Inc. v. Kangaroo Manufacturing Inc., 931 F. 3d 215
(3d Cir. 2019).
In affirming the district court’s grant of a preliminary injunction based upon the banana
costume, the Third Circuit rejected the defendant’s argument that the plaintiff could not hold a
valid copyright in a costume’s pictorial, graphic, or sculptural features. 931 F. 3d at 218. Judge
Hardiman, writing for the Court, concluded that plaintiff’s costume’s non-utilitarian features are
copyrightable. Id. The Court reasoned that, though the banana costume was a “useful” article, the
artistic features of the costume, in combination, prove separable and capable of independent
existence as a copyrightable sculpture. Id at 221. While the Court noted that certain cutout holes
for the wearers arms, legs, and face are not copyrightable, one could still imagine the banana
apart from the costume and it would not be intrinsically utilitarian. Id. AFG’s inflatable costume
has necessarily even more artistic features than a banana costume. The Court should thus reject
the Defendants’ arguments that are counter to the Third Circuit law on copyrighting the artistic
features of a costume.
3. Defendants’ Self-Serving Declarations Do Not Absolve Them from the

Evidence that Shows They Copied Plaintiff’s Copyrighted Sculpture
As noted above, each of the Toloco Defendants (now selling on 7 separate stores) claim
to have “independently created” their alien costumes. See ECF No. 58, p. 18 -19. Camlinbo
argues that it does not copy Plaintiff’s copyrighted sculpture (but does not produce any evidence
to support its argument). Defendants make such an argument despite the obvious copying of the
artistic elements demonstrated above by all the Defendants found in Plaintiff’s Copyrighted
Sculpture and the blatant copying of the Plaintiff’s chosen color scheme for its point of sale
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product. Despite the blatant illegal copying of Plaintiff’s Copyrighted Sculpture, all the
Defendants now contend that they are the parties being harmed by the properly supported
injunction against further sales of their infringing products.
Although copying is an element of copyright infringement, it is rare that there is direct
evidence of copying. Thus, copying is generally shown through a combination of access to a
Plaintiff’s work and substantial similarity (or probative similarity) between the accused work and
a Plaintiff’s work. As noted above, Plaintiff’s copyrighted costume was publicly available in
2017, prior to each defendant’s alleged independent creation in 2018. Furthermore, a
comparison of Plaintiff’s copyrighted costume with the costumes of each defendant clearly
shows that numerous aspects of Plaintiff’s copyrighted costume are included in each defendant’s
costumes. Additionally, as set forth in the Silvertop Associates Inc. v. Kangaroo Manufacturing
Inc., 931 F. 3d 215 (3d Cir. 2019), case, the protectible elements of Plaintiff’s copyrighted
costume appear in the defendants’ costumes (material appropriation). A bland, self-serving
declaration by a defendant is not enough to overcome Plaintiff’s evidence of copying and
infringement.
C. Plaintiff Has Already Demonstrated Irreparable Harm
The Plaintiff has already demonstrated and the Court has already determined that without
the carefully tailored injunctive relief ordered by the Court, the Plaintiff would suffer irreparable
harm to its business and its intellectual property. (ECF No. 20). Defendants claim that the
Plaintiff delayed asserting its claim, notwithstanding that a number of Amazon Standard
Identification Numbers (“ASINs”) on which Plaintiff acted were first available on Amazon in the
September-October 2023 time frame (as discussed above). The evidence above shows that
Plaintiff acted quite promptly.
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However, the Defendants, who admit they knew of the case as of October 27, 2023, and
knew of the show cause hearing as of November 1, 2023, asked for and received a continuation
from the earlier scheduled show cause hearing, delaying for an additional 4 weeks. ECF Nos. 50,
51 (moving Show Cause Hearing from November 7, 2023 to December 7, 2023).
Moreover, the Defendants have actually offered additional evidence of irreparable harm
to Plaintiff. As discussed above, defendants have dominated the market by offering products that
infringe upon Plaintiff’s copyright registration. In this lawsuit, which includes all the Amazon
sellers during the time of the investigation, information obtained from Amazon establishes that
the Toloco Defendants are China-based sellers on the Amazon.com marketplace whom have sold
over 165,000 infringing costumes and received almost $8 million in revenue from these
infringing sales. Second Malkin Dec., ¶ 3. They have dominated and controlled the market for
the product created by Plaintiff and protected by the copyright. Second Fraser Dec. ¶ 25.
Plaintiff has a large line of costumes and each time one of the Defendants takes a sale away from
Plaintiff, there is little chance that the customer will return to Plaintiff’s shop to buy their next
costume. Id. The repeat business is lost for good. Id.
Further, as already established in the Declaration of Fraser Smeaton, the Plaintiff
attempted to use the online policing provided by Amazon, but to no avail. (“Plaintiff has had
varied success in identifying and requesting takedowns of the various unlawful listings and as
soon as one is taken down another lawful listing replaces it.”)(ECF No. 8, p. 5, ¶ 15). Moreover,
Plaintiff was concerned that enforcement efforts would result in retaliation by sellers whose
infringing listings were removed, as there are multiple attacks against an Amazon seller that can
bring down a legitimate listing and jeopardize the entire Amazon store. Second Declaration of
Fraser Smeaton, ¶¶ 7 -8.
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Mr. Smeaton is aware that Weiwei Wang has filed a declaration in this case. Id., ¶ 9.
Wang is known to Mr. Smeaton because he was listed as the owner of design registrations that
purported to claim invention of the Alien Costume that is the subject of AFG’s copyright
registration for the Alien Costume at issue in this case. Id. Plaintiff first became aware of
Weiwei Wang’s EU design registration in late 2020 when somebody claiming they owned the
patent used it to attempt to get our Chinese factory to stop manufacturing our Alien Costume
product. Id., ¶ 10. The EU design registration was invalidated because Plaintiff’s publication of
its Alien Costume predated the filing of the design patents. Id., ¶¶ 12 – 15. Even after Mr. Wang
received the European invalidation decision, somebody attempted to use the design on August
25, 2023, to deactivate Plaintiff’s Amazon listing for its Alien Costume. Id., ¶ 17.
Finally, the Defendants tout their “high” Amazon ratings and higher price points, but
both of these, placed in context do not hold up. In his declaration, Smeaton attests that during his
experience working for AFG, he has become aware that Amazon product reviews and product
rankings for stores and products are notoriously inaccurate. Id. ¶ 18. Such rankings are subject to
multiple methods of manipulation. Id. ¶ 19 and Exhibit 5 (discussing brokers who sell fake
reviews). Additionally, the lower a product is priced on Amazon the easier it will be to get better
reviews because customers have lower expectations at lower prices and it will be easier for the
product to rank more highly for a given search term. For a very similar product, the lower the
price the more it will sell and the higher it will rank. Id. ¶ 20. Because the Defendants have sold
their Infringing Copies at a lower price than AFG, they have obtained higher ratings, further
damaging AFG’s position in the market. Id. ¶ 21. A review of keepa printouts (the same source
used by the Defendants in their declarations) shows that outside of the month of October each of
the Defendants generally price their Infringing Alien Costumes at around $29.99 (and sometimes
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lower) before stepping up the price through October ahead of the peak selling days. Id. ¶¶ 22 –
23 and Exhibit 5. This allows the Defendants to gain a high rank at a low price and then hold it
for the peak selling days at a high price as the Amazon Algorithm does not have time to react. Id.
If the Defendants were not able to unfairly compete by selling their Infringing Products of the
Alien Costume, AFG would have sold more and its ranking would have been higher. Id. ¶ 24. In
this way, the Defendants have dominated and controlled the market for the product created by
AFG and protected by the copyright. Id. at ¶ 25. AFG has a large line of costumes and each time
the defendants take a sale away from us this is one less customer who is aware of our brand and
one less customer who could become a repeat customer. Id.
After the Court entered its restraining order, AFG observed that an infringing Alien
Costume originally sold under the Toloco brand by Easy-fit [currently retrained], was shifted and
began selling on the same Toloco brand listing on a Toloco Costume storefront, not currently a
Defendant. That product was purchased on November 1, 2023, and examined. It was determined
that it was infringing like the rest of the Defendants’ products. Id., ¶ 26. AFG has observed that
Eaglewood Trading (displaying the TOLOCO brand on its about page) and Tolocoinc, not
currently Defendants, were selling Toloco items that were previously sold by Easy -Fit almost
immediately after the Easy Fit store front was restrained. Id., ¶ 27. Smeaton attests that for
another example, seller account Hacosoon Shop who is currently a defendant is currently (3rd
December 2023) selling another infringing product:
- 21 -
Id., ¶ 28.
In sum, the Defendants’ arguments and evidence merely demonstrate the irreparable
harm they have caused to Plaintiff and reveal the mechanisms they used to cause that damage.
C. The Balance of Harm Tilts in Plaintiff’s Favor and Against the Defendants
The Defendants also complain here that the injunctive relief is “overly broad” despite the
fact that this is the identical relief granted by our Courts in the Western District of Pennsylvania.
See Request for Judicial Notice (ECF No. 7) and Plaintiff’s Memorandum (ECF No. 6, p.
47)(collecting cases where identical relief was granted). Defendant’s also complain that the
amount restrained is too great compared to the harm that they have caused. However, our Courts
in the Western District have consistently awarded damages of at least $2,000,000.00 as final
- 22 -
judgments based upon the type of evidence that the Defendants have produced. See, e.g., Doggie
Dental, Inc. v AVANTDIGITAL, No. 21-cv-271 (W.D. Pa., February 23, 2022) (Hornak, CJ);
Doggie Dental, Inc. v CDOFFICE, No. 21-cv-565 (W.D. Pa., February 23, 2022) (Hornak, CJ);
Doggie Dental, Inc. v Ahui, et al., No. 19-cv-1627 (W.D. Pa., Sept. 27, 2021 (Hornak, CJ);
Doggie Dental v. Anywill, No. 19-cv-682 (W.D. Pa., August 14, 2020) (Hornak, CJ); Doggie
Dental v. Max_Buy, 19-746 (W.D. Pa., August 14, 2020) (Hornak, CJ); Doggie Dental v. Go
Well, 19-1282 (W.D. Pa., August 14, 2020) (Hornak, CJ); and Doggie Dental v. Worthbuyer, 19-
1283 (W.D. Pa., August 14, 2020) (Hornak, CJ). See Airigan Solutions, LLC v. Belvia, No. 20-
cv-284 (W.D. Pa., April 21, 2020) (Schwab, J.) ($2 million in damages against each defendant)
[DE 34]; Airigan Solutions, LLC v. Abagail, No. 19-cv-503 (W.D. Pa., Aug 13, 2019) (Fischer,
J.) (same) [DE 52], Rapid Slicer LLC v. Art-House, No. 19-411 (W.D. Pa., Jan. 9, 2020) (Horan,
J.) (same) [DE 44].5
Further, it is too early to tell if the restrained funds are sufficient to pay for the damages
that Plaintiff may ultimately prove. Indeed, the Toloco Defendants have refused to provide any
sales or revenue information to Plaintiff’s counsel.6 Because these are China-based defendants,
the U.S.-based Amazon accounts are the only means of satisfying any eventual damage award
from this Court. As Plaintiff has already demonstrated, there is good cause for keeping the
accounts restrained throughout the litigation.
5
Courts in other districts have likewise made similar awards of statutory damages in cases involving sellers on
online marketplaces. See Juul Labs, Inc. v. The Unincorporated Associations Identified in Schedule A, No. 18-
cv-1287 (E.D. Va., April 5, 2019) ($2,000,000.00 in damages against each defendant per mark) [DE 64]; and
Michael Kors, L.L.C. v. The Partnerships and Unincorporated Associations Identified on Schedule “A”, Case
No. 15-cv-00124 (N.D. Ill. Mar. 25, 2015 and May 12, 2015) (same) [DE 44 and 61.]
6
Although Defendant Camlinbo has provided sales and revenue figures, Plaintiff has reason to believe such
numbers are not accurate.
- 23 -
As the Court may imagine, it is not unusual for defendants in cases like the present one to
disagree over the asset restraint. In Gianni Versace, S.p.A. v. Zuo Youlan, et al., No. 17-cv-7869
(N.D. Ill.), the plaintiff sued over one thousand (1,000) online counterfeiters and obtained a
Temporary Restraining Order with a restraint on defendants’ assets. The bond amount was
$10,000. Seven (7) of the defendants appeared at the Preliminary Injunction hearing and
contested the asset restraint. The appearing defendants argued the restrained assets were not
limited to the profits derived from their counterfeiting as they had only made nominal sales of
counterfeit products. The amounts of the appearing defendants’ restrained assets ranged from
$9-82,000. The Court rejected the appearing defendants’ position and entered a Preliminary
Injunction continuing the asset restraint. The case concluded with the Court entering Default
Judgment against hundreds of defendants, awarding in excess of $600M in statutory damages,
and transferring the restrained assets to plaintiff is partial satisfaction of the damage award. For
the Court’s convenience, a copy of the transcript from the Preliminary Injunction hearing in the
Gianni Versace case along with a copy of the Order granting the Preliminary Injunction is
attached as Exhibit 4 to the Second Malkin Dec. submitted herewith.
Nonetheless, Plaintiff would be open to discussing alternatives to ensure there is a corpus
of funds in the United States to satisfy an ultimate judgment. Such alternatives include: 1)
Defendants posting a bond to ensure suitable funds remain in the United States subject to this
Court’s jurisdiction and 2) Defendants depositing suitable funds with either the Clerk of Court or
into their counsel’s IOLTA trust account.
IV. CONCLUSION
These Defendants like so many before are asking the Court to give them a free pass for
the damages they cause in the US Marketplace by infringing on US intellectual property. These
- 24 -
behaviors are well documented and even the U.S. Government has studies and has warned about
the effects on the U.S. Market. Though these defendants choose to sell into the United States and
this district, they are now attempting to escape the Court’s jurisdiction based on almost
universally rejected legal arguments. The Court need not decide on personal jurisdiction in order
to issue a preliminary injunction. The Court should not allow the Defendants to use the Great
Wall of China as a means of avoiding the Plaintiff’s request for relief for the Defendants’
infringement of Plaintiff’s Sculpture. Moreover, the notion that the Defendants together
“independently” created an identical product to Plaintiff’ copyrighted work is a non-sequitur and
is counter to the evidence of record. Likewise, the Defendants’ argument that the Plaintiffs’
copyright is invalid should be rejected based upon the facts and law before the Court. The
Plaintiff continues to meet the elements necessary to grant a Preliminary Injunction to continue
the relief currently in place through the Court’s Temporary Restraining Order and the Court
should so order.
Respectfully submitted,
Dated: December 4, 2023 /s/ Stanley D. Ference III

Stanley D. Ference III
Pa. ID No. 59899
courts@ferencelaw.com
Brian Samuel Malkin

Pa. ID No. 70448
bmalkin@ferencelaw.com
FERENCE & ASSOCIATES LLC

409 Broad Street
Pittsburgh, Pennsylvania 15143
(412) 741-8400 – Telephone
(412) 741-9292 – Facsimile
Attorneys for Plaintiff
- 25 -

AFG v. Poptrend-Official - Plaintiff Reply Re PI

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Case 2:23-cv-01840-WSS Document 74 Filed 12/04/23 Page 1 of 25

REDACTED BY COURT ORDER

IN THE UNITED STATES DISTRICT COURT

AFG MEDIA LTD, Civil Action No. 23-cv-1840

PLAINTIFF’S REPLY TO OPPOSITION BY TOLOCO DEFENDANTS [ECF No. 58]

REDACTED BY COURT ORDER

intellectual property owner of a remedy for the defendants’ infringement.

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they were no longer representing the Toloco Defendants. (Id.)

until the new hearing date. (Id. at ¶ 9)

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issuance of a preliminary injunction in a costume infringement case (Silvertop Assocs. Inc. v.

disclosure relevant information, thereby supporting the issuance of a preliminary injunction as

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1. AFG Media’s Carried by Alien “Pick Me Up” Inflatable Costume

AFG Media is the owner of US Copyright Registration No. VA 2-261-150 entitled

white shoes with black laces:

Plaintiff’s Point of Sale Alien Costume

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Plaintiff’s Point of Sale Alien Costume Defendant YEAHBEER Infringing Product

Plaintiff’s Point of Sale Alien Costume

Defendant Hacosson Shop Infringing Product

REDACTED BY COURT ORDER

Plaintiff’s Point of Sale Alien Costume

Plaintiff’s Point of Sale Alien Costume Defendant Camlinbo Infringing Product

Defendant Poptrend-Official Infringing

REDACTED BY COURT ORDER

Plaintiff’s Point of Sale Alien Costume Defendant Stegosauras Infringing Product

2. Other Alien Costumes Being Sold on Amazon

of some such costumes appear below (See Malkin Dec., ¶ 9).

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issuance of a preliminary injunction for infringement of a copyright in a banana costume.

3. The Defendants Did Not Independently Create The Infringing Costumes

EUIPO noted the following common features:

• the overall shape of the ‘alien’ part of the design is identical;

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Malkin Declaration, submitted herewith.

declarations submitted by the Toloco Defendants in this litigation.

A preliminary injunction should be entered in favor of Plaintiff against all Defendants.

A. Service of Process is Not Required for the Court to Enter a Preliminary

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declined to enter a preliminary injunction finding “there is doubt as to whether there is a

provides a good example.”).

Moreover, in the online counterfeiting context, courts routinely enter preliminary

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entered a default judgment with a permanent injunction against 49 of the 51 defendants

against the two remaining defendants.

B. Plaintiff has Shown Likelihood of Success on the Merits.

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sculpture is utilitarian and not novel.

2. The Plaintiff’s Copyright Registration is Valid

utilitarian and such an argument should be rejected by the Court.

In addition to the presumption of validity accorded Plaintiff’s copyright registration,

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a requirement in order to obtain a Copyright Registration. Id., ¶ 12.

Defendant Camlimbo incorrectly argues that Plaintiff is not entitled to a copyright

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(3d Cir. 2019).

3. Defendants’ Self-Serving Declarations Do Not Absolve Them from the

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injunction against further sales of their infringing products.