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COMPLAINT
IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION KINSLEY TECHNOLOGY CO., Plaintiff,
vs. YA YA CREATIONS, INC; THE INDIVIDUALS, BUSINESS ENTITIES, AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE A; AND DOES 1-99.
Defendants.
Case No. ______________________ COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF ARISING FROM CONDUCT ENJOINED BY THE LANHAM ACT; TRADEMARK INFRINGEMENT; TRADEMARK COUNTERFEITING; FEDERAL UNFAIR COMPETITION; AND UNFAIR COMPETITION PURSUANT TO CAL. BUS. PROF. CODE §§ 17200 ET SEQ. DEMAND FOR JURY TRIAL
Jack I. Jmaev (CA-SBN: 216,416) PURITAN LAW GROUP 500 N. STATE COLLEGE BLVD., SUITE 1100 ORANGE, CA 92868 / Phone: 909-437-8390 Attorney for Plaintiff
KINSLEY TECHNOLOGY CO., A Hong Kong Limited Liability Company
Case 2:20-cv-04310-ODW-KS Document 1 Filed 05/12/20 Page 1 of 14 Page ID #:1
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COMPLAINT
COMPLAINT
Plaintiff Kinsley Technology Co., for its Complaint against the Defendants identified on
Schedule A attached hereto and incorporated herein, alleges as follows:
THE PARTIES
1. Plaintiff Kinsley Technology Co (“Kinsley”) is a limited liability company organized under
the laws of Hong Kong with its principal place of business located in Shenzhen China.
2. On information and belief, each of the Defendants identified on Schedule A is either a
resident and citizen of the State of California and this District, subject to personal
jurisdiction in this State and District, and/or is a foreign entity of unknown origin.
3. Schedule A details the known and unknown information about the individuals, business
entities and/or unincorporated associations accused of infringing upon Kinsley’s registered
trademark rights.
4. On information and belief, Defendant #3 aka EfavorMart is a dba of Ya Ya Creations, Inc. a
California corporation with a principal place of business located at 13155 Railroad Ave.,
City of Industry, CA 91746, that does business under the name eFavorMart including on
one of its websites located at www.efavormart.com.
5. Does 1-99 are other, as of yet unidentified defendants that are also engaging in the
infringing and counterfeiting acts described herein, including the unknown vendor or
vendors that may be supplying one or more of the identified Defendants with counterfeit
and infringing products.
JURISDICTION AND VENUE
6. This is an action for trademark infringement and counterfeiting under the Lanham Act as
well as related claims.
7. This Court has original subject matter jurisdiction over the claims in this action under 15
U.S.C. § 1051 et seq., 28 U.S.C. § 1338(a)-(b), and 28 U.S.C. § 1331.
8. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because at least Defendant Ya
Ya Creations, Inc. is a citizen and resident of this District and is subject to personal
Case 2:20-cv-04310-ODW-KS Document 1 Filed 05/12/20 Page 2 of 14 Page ID #:2
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COMPLAINT
jurisdiction in this District while all other Defendants are either residents of this District or
are foreign entities subject to suit in any judicial district.
9. Additionally, each of the Defendants intentionally targets this State at least by its utilization
and exploitation of the Amazon.com marketplace that is the subject of each Defendant’s
infringing acts alleged below and the Online Marketplace Accounts identified in Schedule A
attached hereto. Specifically, Defendants are infringing upon and counterfeiting Kinsley’s
registered trademark rights in order to gain access to, and trade upon Kinsley reputation and
goodwill on, the Amazon.com Marketplace in a manner that targets residence of the State of
California and this District.
BACKGROUND
10. Kinsley is the owner, by way of assignment, of U.S. Trademark Registration No. 5,627,817
(the “SUNCOO Registration”) for the word mark SUNCOO in international class 010
(Medical Apparatus).
11. A true and correct copy of the SUNCOO Registration is attached hereto as Exhibit A and is
incorporated herein in its entirety.
12. Among the goods and services identified in the SUNCOO Registration are “Gloves for
medical purposes” and “Masks for use by medical personnel.”
13. Kinsley and its single importer/distributor have used the SUNCOO word mark in
connection with the sale of high-quality respiratory masks intended to help combat the
spread of COVID-19.
14. In response to an influx of would-be sellers of questionable quality goods and bad actors
seeking to profit off the current pandemic, online retailer Amazon.com, Inc. (“Amazon”)
implemented tight constraints over the sale of various items, including protective masks.
15. In particular, Amazon restricted the ability for sellers to create new ASINs (Amazon
Standard Identification Numbers) for protective masks implementing tight quality control
and review over the creation of any such ASINs.
16. ASINs are the product identifiers for all products sold on the Amazon Marketplace and
without an ASIN, a product cannot be listed or sold on the Amazon.com website.
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COMPLAINT
17. As a result of Kinsley’s control over its mark and its quality assurance related to the
products sold in connection with the mark, Kinsley was assigned an ASIN to list and sell its
SUNCOO branded facemasks (the “Assigned ASIN”).
18. ASINs allow a brand manager to create a product for its branded products so that individual
sellers who have the product for sale can link their products to the branded page without
creating individual product images, descriptions, and the like.
19. This process lowers the barrier for sellers and increases the control that a company has over
its brand and the manner in which its products are described, advertised, and sold. Kinsley
created a product landing page for the Assigned ASIN including product descriptions,
product images, and information noting its FDA registered importer and distributor.
20. The original supply of SUNCOO branded masks, listed for sale and tied to the Assigned
ASIN by Kinsley’s sole importer and distributer, sold out in less than four days.
21. Because a new shipment of Kinsley’s masks would take time to deliver to its sole importer
and distributor, Kinsley had its importer and distributor “deactivate” the ASIN landing page
on Amazon.com so that it would remain tied to Kinsley’s product but would not appear in
consumer searches until Kinsley was ready to deliver new masks again.
22. The “deactivation” of the ASIN does not remove the number from its relationship to
Kinsley’s product or otherwise release it from Kinsley’s control. Rather, “deactivating” the
ASIN prevents consumer frustration from seeing a listed product that is either out of stock
or shows an exceedingly long delivery time and helps hide the ASIN from unscrupulous
sellers seeking to trade on Kinsley’s success and reputation.
23. Unfortunately, despite Kinsley’s efforts, Defendants were able to locate the ASIN and, as
outlined below, fraudulently associate their counterfeit goods with Kinsley’s bona fide
ASIN to deceive consumers into purchasing the counterfeit goods.
DEFENDANTS’ INFRINGING ACTS
24. The current global pandemic associated with the COVID-19 virus has created a feverish
market of individuals seeking to cash-in on consumers’ fears and precautions.
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COMPLAINT
25. Motivated by greed, these sellers do not care about their long-term reputation with
purchasers and instead simply try to sell as much product as possible within a short window
of time.
26. Further, because the current pandemic will, presumably, end at some point, so too will the
increased need for various products, such as masks, meaning that a desire for repeat
business is not an effective market motivator.
27. In an apparent effort to curtail such predatory practices, Amazon has taken various measures
to restrict its marketplace and protect consumers. One such effort is to limit the ability of
sellers to create new ASINs for various products, including face masks.
28. By restricting the creation of ASINs, Amazon can prevent predatory sellers from creating
fake product listings or even genuine product listing for substandard, or even unsafe,
products.
29. Another consumer protection action taken by Amazon is to control seller’s profits generated
from its Marketplace. In particular, when a product is listed with a lengthy delivery
window, Amazon will hold the profits generated from sales of the product until the
consumer has received the product and had an opportunity to raise any complaints.
30. While these actions are helpful in curtailing the efforts of deceptive sellers, they are not
perfect.
31. As a result of Amazon’s restriction on the generation of new ASINs for various products
associated with the COVID-19 pandemic, including face masks, deceptive sellers often
attempt to link their inferior generic, unbranded, or even competing products to the ASINs
for existing successful products in an effective “bait and switch” sales technique.
32. The Defendants identified on Schedule A have each linked their products to the Assigned
ASIN for the SUNCOO branded masks despite not actually selling SUNCOO branded
masks.
33. Additionally, on information and belief, one or more of the Defendants, potentially one or
more of the Doe Defendants, has utilized Amazon’s direct Fulfillment Program such that
products are listed as “sold by and delivered from” Amazon or Amazon.com Services, LLC
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COMPLAINT
but are initially provided to Amazon, and eventually to the end consumer, by one or more of
the other Defendants.
34. When a consumer goes to the landing page for the Assigned ASIN, whether by searching
for “SUNCOO” or choosing the SUNCOO branded masks from a selection of available
products, they see the branding images and descriptions created for Kinsley’s SUNCOO
branded masks.
35. If the product is available for sale, a default seller is selected and, if more than one seller is
available, a hyperlink will be displayed showing the consumer how many options they have
for purchasing the product as shown in the representative screenshot below:
36. If, however, the seller is not Kinsley or its sole importer and distributor, the products being
sold are not actually SUNCOO brand mask.
37. Rather the masks being provided by the Defendants are unknown, unbranded masks of
unknown origin and quality.
38. A sample of test purchases were made from among the products/sellers deceptively
associating their products to the Assigned ASIN for the SUNCOO brand masks.
39. Upon receiving the products from the test purchases, they were confirmed to be imitation or
competing products – not SUNCOO masks from Kinsley.
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COMPLAINT
40. One such competing product being sold under the SUNCOO name and fraudulently
associated with the Assigned ASIN is shown in the images below, compared to an authentic
SUNCOO branded product:
41. In a further effort to hide their counterfeiting acts and prevent collection of evidence, some
of the Defendants have restricted shipments of their products from the State of California
knowing that Kinsley’s sole importer and distributor is located here.
42. Other Defendants, in an apparent effort to avoid collection of evidence, have canceled
orders that were placed by Kinsley’s sole importer and distributor.
ORIGINALPACKAGING
ORIGINALPACKAGING
COUNTERFEITPACKAGING
COUNTERFEITPACKAGING
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COMPLAINT
43. Likewise, the Defendants will repeatedly list and delist their counterfeit and infringing
products associated with the Assigned ASIN in an effort to generate flurries of sales while
limiting the ability for their counterfeit and infringing conduct to be detected.
CLAIM I
TRADEMARK INFRINGEMENT (15 U.S.C. § 1114)
44. Kinsley realleges and incorporates each of the allegations set forth in paragraphs 1-43 as if
restated herein in their entirety.
45. Defendants have used an exact reproduction of Kinsley’s registered SUNCOO word mark in
connection with the advertising, offer for sale, and sale of their competing products in
commerce.
46. Defendants’ use of the registered SUNCOO word mark in connection with the advertising,
offer for sale, and sale of their competing products is likely to confuse consumers, cause
them to mistakenly purchase Defendants’ products thinking them to be Kinsley’s products,
and to otherwise deceive consumers.
47. On information and belief Defendants acts have been willful and are a deliberate attempt to
trade on the success and reputation associated with Kinsley’s products.
48. Additionally, by deceptively associating their competing products with Kinsley’s Assigned
ASIN, Defendants have gained access to a market that they otherwise would not have been
able to exploit.
49. As a direct and proximate result of Defendants’ infringement of the registered SUNCOO
word mark, Kinsley has suffered irreparable harm as well as monetary and other damages in
an as-yet-undetermined amount. Furthermore, unless Defendants are enjoined by this Court
from continuing their infringement of the registered SUNCOO word mark, Kinsley will
continue to suffer additional irreparable damages and impairment of the control over the
quality of the goods associated with the registered SUNCOO word mark and the resulting
reputation and good will in the minds of consumers. Accordingly, a preliminary injunction
against further infringement, to be replaced by a permanent injunction at the conclusion of
this case, is appropriate.
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COMPLAINT
50. Unless and until enjoined, Defendants’ infringing activity will continue to cause harm to
Kinsley that is irreparable and for which there is no adequate remedy at law.
51. Additionally, unless preliminarily and permanently enjoined by this Court, Defendants’
actions will cause and continue to cause irreparable harm on the consuming public who
believe they are purchasing a Kinsley product under the registered SUNCOO word mark,
but are instead being sent a competing product from an unknown source. Such consumers
are often unaware that they are even receiving a different product.
CLAIM II
TRADEMARK COUNTERFEITING (15 U.S.C. § 1114)
52. Kinsley realleges and incorporates each of the allegations set forth in paragraphs 1-51 as if
restated herein in their entirety.
53. By associating their competing products with the Assigned ASIN for Kinsley’s SUNCOO
branded products, Defendants have counterfeited and copied the registered SUNCOO word
mark and applied that counterfeit mark to the advertisements for their competing products in
connection with the sale of those competing products.
54. Defendants’ acts of associating their competing products with the Assigned ASIN for
Kinsley’s SUNCOO branded products is likely to cause confusion among consumers, cause
consumers to mistakenly purchase the competing products thinking they are purchasing
Kinsley’s products, and to otherwise deceive consumers.
55. On information and belief, Defendants’ acts of counterfeiting have been willful and
deliberate.
56. Additionally, by counterfeiting the registered SUNCOO word mark and associating their
competing products with Kinsley’s Assigned ASIN, Defendants have gained access to a
market that they otherwise would not have been able to exploit.
57. As a direct and proximate result of Defendants’ counterfeiting of the registered SUNCOO
word mark, Kinsley has suffered irreparable harm as well as monetary and other damages in
an as-yet-undetermined amount. Furthermore, unless Defendants are enjoined by this Court
from continuing their counterfeiting of the registered SUNCOO word mark, Kinsley will
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COMPLAINT
continue to suffer additional irreparable damages and impairment of the control over the
quality of the goods associated with the registered SUNCOO word mark and the resulting
reputation and good will in the minds of consumers. Accordingly, a preliminary injunction
against further counterfeiting, to be replaced by a permanent injunction at the conclusion of
this case, is appropriate.
58. Unless and until enjoined, Defendants’ counterfeiting activity will continue to cause harm to
Kinsley that is irreparable and for which there is no adequate remedy at law.
59. Additionally, unless preliminarily and permanently enjoined by this Court, Defendants’
actions will cause and continue to cause irreparable harm on the consuming public who
believe they are purchasing a Kinsley product under the registered SUNCOO word mark,
but are instead being sent a competing product from an unknown source. Such consumers
are often unaware that they are even receiving a different product.
CLAIM III
FEDERAL UNFAIR COMPETITION (15 U.S.C. § 1125(a))
60. Kinsley realleges and incorporates each of the allegations set forth in paragraphs 1-59 as if
restated herein in their entirety.
61. Defendants acts described above, including falsely associating non-SUNCOO face masks
with Kinsley’s ASIN assigned to its SUNCOO branded facemask, thereby utilizing the
SUNCOO advertising material and marketing, constitute Federal Unfair Competition under
the Lanham Act.
62. By passing off their counterfeit or competing products as genuine SUNCOO products and
by utilizing the SUNCOO advertising and marketing material to sell their counterfeit or
competing products, the Defendants have created a false impression that their counterfeit or
competing products and the genuine SUNCOO face masks have a common origin. This
false marketing scheme is likely to cause confusion, mistake, or deception within the
relevant consuming public as to the source of the counterfeit or competing products.
63. As a direct and proximate result of Defendants’ unfair competition, Kinsley has suffered
irreparable harm as well as monetary and other damages in an as-yet-undetermined amount.
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Furthermore, unless Defendants are enjoined by this Court from continuing their unfair
competition, Kinsley will continue to suffer additional irreparable damages and impairment
of the control over the quality of the goods associated with the registered SUNCOO word
mark and its related marketing material.
64. Likewise, unless Defendants are enjoined by this Court from continuing their unfair
competition, Kinsley will lose the ability to differentiate its products as coming from a
unique source as opposed to originating from a common source with Defendants counterfeit
or competing products. Accordingly, a preliminary injunction against further unfair
competition, to be replaced by a permanent injunction at the conclusion of this case, is
appropriate.
65. Unless and until enjoined, Defendants’ unfair competition will continue to cause harm to
Kinsley that is irreparable and for which there is no adequate remedy at law.
66. Additionally, unless preliminarily and permanently enjoined by this Court, Defendants’
actions will cause and continue to cause irreparable harm on the consuming public who are
being led to believe that the counterfeit or competing products come from the same source
as genuine SUNCOO face masks. Such consumers are often unaware that they are even
being deceived.
67. On information and belief, Defendants’ acts of unfair competition have been deliberate,
intentional, and willful
CLAIM IV
UNFAIR COMPETITION UNDER CALIFORNIA STATE LAW
(BUSINESS AND PROFESSIONS CODE §§ 17200 ET SEQ.)
68. Kinsley realleges and incorporates each of the allegations set forth in paragraphs 1-67 as if
restated herein in their entirety.
69. Defendants acts described above, including falsely associating non-SUNCOO face masks
with Kinsley’s ASIN assigned to its SUNCOO branded facemask, thereby utilizing the
SUNCOO advertising material and marketing, constitute Unfair California State Law.
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70. On information and belief, Defendants have been engaged in a plan to trade off the market
success of the SUNCOO face masks by falsely associating their non-SUNCOO face masks
with the ASIN assigned to the SUNCOO face masks, thereby utilizing the advertising and
marketing material for the SUNCOO face masks to sell the non-SUNCOO face masks. By
falsely associating their counterfeit or competing product with the ASIN for the SUNCOO
face masks, Defendants are creating an impression that is likely to confuse the public as to
the origin of the products being sold in connection with the ASIN for the SUNCOO face
masks.
71. As a direct and proximate result of Defendants’ unfair competition, Kinsley has suffered
irreparable harm as well as monetary and other damages in an as-yet-undetermined amount.
Furthermore, unless Defendants are enjoined by this Court from continuing their unfair
competition, Kinsley will continue to suffer additional irreparable damages and impairment
of the control over the quality of the goods associated with the registered SUNCOO word
mark and its related marketing material.
72. Likewise, unless Defendants are enjoined by this Court from continuing their unfair
competition, Kinsley will lose the ability to differentiate its products as coming from a
unique source as opposed to originating from a common source with Defendants counterfeit
or competing products. Accordingly, a preliminary injunction against further unfair
competition, to be replaced by a permanent injunction at the conclusion of this case, is
appropriate.
73. Unless and until enjoined, Defendants’ unfair competition will continue to cause harm to
Kinsley that is irreparable and for which there is no adequate remedy at law.
74. Additionally, unless preliminarily and permanently enjoined by this Court, Defendants’
actions will cause and continue to cause irreparable harm on the consuming public who are
being led to believe that the counterfeit or competing products come from the same source
as genuine SUNCOO face masks. Such consumers are often unaware that they are even
being deceived.
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75. On information and belief, Defendants’ acts of unfair competition have been deliberate,
intentional, and willful
PRAYER FOR RELIEF
76. Wherefore, Plaintiff, Kinsley Technology Co., requests that this Court find in its favor and
against Defendants, and grant Plaintiff the following relief:
A. That Judgment be entered that Defendants have infringed the SUNCOO
Registration;
B. That Judgement be entered that Defendants have counterfeited the SUNCOO
Registration;
C. That judgment be entered that Defendants have unfairly competed with Kinsley
under Federal and State Law;
D. That, in accordance with 15 U.S.C. § 1116, Defendants and all affiliates,
employees, agents, officers, directors, attorneys, successors, and assigns and all
those acting on behalf of or in active concert or participation with any of them, be
preliminarily and permanently enjoined from (1) infringing the SUNCOO
Registration and (2) using in commerce any reproduction, counterfeit, copy, or
colorable imitation of the SUNCOO word mark;
E. An award of statutory damages for use of a counterfeit mark of up to $2,000,000
per Defendant on account of the willfulness of such counterfeiting or, in the
alternative, damages equal to Defendants’ profits, actual damages suffered by
Kinsley, and the costs of this action;
F. That all non-statutory damages granted in Paragraph E be enhanced in view of the
willful nature of Defendants’ violations up to an amount not greater than three
times such damages;
G. That all non-statutory damages be trebled and Plaintiff be awarded its attorneys’
fees on account of Defendants’ intentional use of a counterfeit mark;
H. That the case be found exceptional under 15 U.S.C. § 1117 and that Plaintiff be
awarded its attorneys’ fees;
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I. Costs and expenses in this action;
J. An award of prejudgment and post-judgment interest; and
K. Such other and further relief as the Court may deem just and proper.
JURY DEMAND
Plaintiff demands a trial by jury on all issues so triable.
DATED: MAY 12, 2020 Respectfully submitted,
/s/ Jack I. Jmaev SBN 216,416
Attorney for Plaintiff Puritan Law, PC 500 N. State College Blvd. Suite 1100 Orange, CA 92868
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