Alo, LLC v. Sean Fang, et al.

• Court: District Court, N.D. California
• Decided: June 15, 2026
• Docket: 3:25-cv-11126
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION 7 8 ALO, LLC, Case No. 25-cv-11126-PHK

9 Plaintiff, ORDER GRANTING ALO LLC’S EX PARTE APPLICATION FOR LEAVE 10 v. TO SERVE THIRD-PARTY SUBPOENA 11 SEAN FANG, et al., Re: Dkt. 16 Defendants. 12

13 Now before the Court is Plaintiff Alo, LLC’s (“Alo”) Ex Parte Application for Leave to 14 Serve a Third-Party Subpoena Prior to a Rule 26(f) Conference. [Dkt. 16]. Because Defendants 15 kyy_40 and Sean Fang (“Fang”) (collectively, “Defendants”) have not been identified or served, no 16 opposition has been filed. Having reviewed Alo’s application and all supporting documents, the 17 Court GRANTS the ex parte application. 18 BACKGROUND 19 Alo alleges that it is a “premium apparel and health-and-wellness company that specializes 20 in luxury activewear,” where each Alo product “bears at least one of its distinctive trademarks.” 21 [Dkt. 7 at ¶¶ 1-2]. Alo’s products are marketed using its trademarks (“ALO Marks”), which are 22 allegedly “inherently distinctive and serve as signifiers of Alo’s premium apparel and other 23 products.” Id. at ¶ 13. Alo’s products are “exclusively sold through Alo’s website 24 (www.aloyoga.com) and its brick-and-mortar stores in the United States and abroad.” Id. at ¶ 12. 25 Alo indicates it is a California limited liability company with its principal place of business in Los 26 Angeles County, California. Id. at ¶ 4. 27 1 commerce platform hosted by EBAY INC. (“eBay”) in violation of Alo’s trademark 2 rights. See id. at ¶¶ 17-21. eBay is a well-known Internet-based online marketplace for the sale of 3 goods and services among its registered users. Gentry v. eBay, Inc., 99 Cal. App. 4th. 816, 820 4 (2002). 5 Alo alleges that Defendants, at a time unknown to Alo, “unlawfully offered to sell, facilitated 6 the sale of, sold and continue to sell goods that were neither made by Alo nor by its authorized 7 manufacturers, all by using reproductions, counterfeits, copies and/or colorable imitations of Alo 8 products” on the eBay platform. Id. at ¶¶ 17-18. On November 4, 2025, a representative of Alo 9 allegedly purchased products purporting to be “ALO Yoga Women’s Black Activewear Set Sports 10 Bra & Leggings” from Defendant kyy_40’s eBay seller page. Id. at ¶ 18. The products were 11 allegedly shipped to an address in Winnetka, California and received by Alo’s representative on 12 November 8, 2025. Id. at ¶ 19. The return sender information on the exterior packaging was listed 13 as: “Sean Feng, 233 E Harris Ave Unit C1, South San Francisco, California, 94080.” Id. These 14 products allegedly bore “at least one ALO Mark on the product itself, arrived in a plastic bag 15 displaying the ALO Mark, and had at least one ‘Alo’ branded tag.” Id. at ¶ 20. As of December 17, 16 2025, Defendants allegedly continue to maintain listings for allegedly counterfeit “Alo” Products 17 on the eBay platform, as evidenced by screenshots from Defendant kyy_40’s seller page. Id. at 18 ¶ 22; Dkt. 7-5 at 3-4. 19 Subsequent to the first instance of alleged trademark infringement, an Alo representative 20 purchased products purporting to be “Alo Yoga Women’s White 2-piece Set Sports Bra & Leggings 21 Outfit.” Id. at ¶ 23. When the Alo representative allegedly received the products on December 8, 22 2025, the return sender information on the exterior packaging was again listed as: “Sean Feng, 233 23 E Harris Ave Unit C1, South San Francisco, California, 94080.” Id. at ¶ 24. These products, like 24 the first set, “each bore at least one ALO Mark on the product itself, arrived in a plastic bag 25 displaying the ALO Mark, and had at least one ‘Alo’ branded tag.” Id. at ¶ 25. Upon information 26 and belief, Alo alleges that the sale of counterfeit Alo products was “either knowing and intentional, 27 or undertaken with willful ignorance of the counterfeit nature of the products.” Id. at ¶ 26. Alo “has 1 products in connection with the ALO Marks.” Id. at ¶ 28. Accordingly, Alo alleges that Defendants 2 are “actively using, promoting, and otherwise advertising, distributing, selling and/or offering for 3 sale Counterfeit ‘Alo’ Products bearing the ALO Marks with the intent that such goods will be 4 mistaken for genuine Alo products, despite Defendants’ knowledge that it does not have authority 5 to use the ALO Marks.” Id. at ¶ 30. Alo alleges that there is a “high likelihood of confusion between 6 the counterfeit products sold by Defendants . . . and genuine Alo products,” which will “harm[] 7 Alo’s brand and goodwill with consumers.” Id. at ¶ 31. 8 Based on these forgoing allegations, on January 2, 2026,1 Alo filed the operative Complaint 9 in this action against Defendants alleging trademark infringement under 15 U.S.C. § 1114, false 10 designation of origin under 15 U.S.C. § 1125(a)(1)(A), unfair competition under 15 U.S.C. 11 § 1125(a)(1)(B), and unfair business practices under California Business and Professions Code 12 § 17200, et seq. See Dkt. 7. On February 16, 2026, Alo filed the instant ex parte application 13 requesting leave to serve eBay with a subpoena under Fed. R. Civ. P. 45. [Dkt. 16]. Alo alleges 14 that eBay has the ability to identify Defendants discovered by the investigation discussed herein, 15 because Defendants would have “provided valid contact information—including a valid and active 16 email address and physical address for the business—to eBay when registering as a seller on the 17 platform.” Id. at 2. Alo represents that the requested subpoena will be limited to seeking from eBay 18 the “current residential or business contact information for Defendants.” Id. at 4. 19 DISCUSSION 20 I. LEAVE TO SERVE AN EARLY, LIMITED SUBPOENA ON EBAY 21 Pursuant to Rule 26(d)(1), a party may not seek discovery from any source prior to the 22 parties’ conference required by Rule 26(f). However, per Rule 26(d)(1), the Court has authority to 23 allow discovery prior to the Rule 26(f) conference and thus outside this timing limitation. See also 24 Fed. R. Civ. P. 26 advisory committee’s note (1993) (“Discovery can begin earlier if authorized . . 25 . by local rule, order, or stipulation. This will be appropriate in some cases[.]”). 26 The Court may authorize early discovery before the Rule 26(f) conference if the requesting 27 1 party establishes “good cause” for the early discovery. Semitool, Inc. v. Tokyo Electron Am. Inc., 2 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be found where the need for expedited 3 discovery, in consideration of the administration of justice, outweighs prejudice to the responding 4 party.” Id. 5 As with all discovery matters, “Rule 26 vests the trial judge with broad discretion to tailor 6 discovery narrowly and to dictate the sequence of discovery.” Crawford-El v. Britton, 523 U.S. 7 574, 598 (1998). “And the court may also set the timing and sequence of discovery.” Id. at 599 8 (citing Fed. R. Civ. P. 26(d)). Thus, the decision whether or not to grant early discovery under Rule 9 26(d) is within the Court’s discretion. Quinn v. Anvil Corp., 620 F.3d 1005, 1015 (9th Cir. 2010) 10 (“We review district court rulings on discovery matters for abuse of discretion.”). Further, a 11 decision to deny early discovery under Rule 26(d) “will not be disturbed except upon the clearest 12 showing that denial of discovery results in actual and substantial prejudice to the complaining 13 litigant.” Med Vets, Inc. v. VIP Petcare Holdings, Inc., 811 F. App’x 422, 424 (9th Cir. 2020) 14 (quoting Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). 15 In evaluating a motion for expedited discovery, the District Court in Med Vets considered 16 the following factors to determine whether good cause exists to justify the requested early discovery: 17 (1) whether a preliminary injunction is pending; (2) the breadth of the discovery request; (3) the 18 purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with the 19 requests; and (5) how far in advance of the typical discovery process the request was made. Med 20 Vets, Inc. v. VIP Petcare Holdings, Inc., No. 18-cv-02054-MMC, [Dkt. 45] at *3 (N.D. Cal. Nov. 21 28, 2018) (quoting Rovio Ent. Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 1086, 1099 (N.D. Cal. 22 2012)). The Ninth Circuit affirmed the District Court’s decision on the request for expedited 23 discovery. Med Vets, 811 F. App’x at 424. 24 A request for early discovery, such as the instant ex parte application, may arise particularly 25 in a case involving alleged wrongful conduct in connection with use of the internet. As discussed 26 by precedent:

27 With the rise of the Internet has come the ability to commit certain tortious acts, on-line. The tortfeasor can act pseudonymously or anonymously and may give 1 fictitious or incomplete identifying information. Parties who have been injured by 2 these acts are likely to find themselves chasing the tortfeasor from Internet Service Provider (ISP) to ISP, with little or no hope of actually discovering the identity of 3 the tortfeasor.

4 In such cases the traditional reluctance for permitting filings against John Doe defendants or fictitious names and the traditional enforcement of strict compliance 5 with service requirements should be tempered by the need to provide injured parties 6 with an (sic) forum in which they may seek redress for grievances. However, this need must be balanced against the legitimate and valuable right to participate in 7 online forums anonymously or pseudonymously. People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in 8 violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open 9 communication and robust debate. Furthermore, it permits persons to obtain 10 information relevant to a sensitive or intimate condition without fear of embarrassment. People who have committed no wrong should be able to participate 11 online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their 12 identity.

13 Thus some limiting principals should apply to the determination of whether 14 discovery to uncover the identity of a defendant is warranted. 15 Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999) (footnote omitted). 16 Columbia thus identified four factors to assist in determining whether a plaintiff has 17 established good cause to conduct early discovery to identify Defendants whose identities are 18 unknown. Courts look to “whether the plaintiff (1) identifies the Doe defendant with sufficient 19 specificity that the court can determine that the defendant is a real person who can be sued in federal 20 court, (2) recounts the steps taken to locate and identify the defendant, (3) demonstrates that the 21 action can withstand a motion to dismiss, and (4) proves that the discovery is likely to lead to 22 identifying information that will permit service of process.” Zoosk Inc. v. Doe 1, No. C 10-04545 23 LB, 2010 WL 5115670, at *2 (N.D. Cal. Dec. 9, 2010) (citing Columbia Ins., 185 F.R.D. at 578– 24 80). Additionally, the Ninth Circuit has relied on the first and third factors as weighing in favor of 25 granting early discovery to determine an unknown defendant’s identity. See, e.g., Young v. Transp. 26 Deputy Sheriff I, 340 F. App’x 368, 369 (9th Cir. 2009); Gillespie v. Civiletti, 629 F.2d 637, 642 27 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999). 1 Applying the Columbia factors here, the Court finds that all four factors weigh in favor of 2 the requested, limited early discovery. First, Alo alleges sufficient details to enable this Court to 3 conclude that Defendants are more than likely actual individuals who can be legally sued in federal 4 court. “A plaintiff may show that a defendant is a real person or entity by providing evidence of 5 ‘specific acts of misconduct that could only have been perpetrated by actual people, as opposed to 6 a mechanical process.’” Distinct Media Ltd. v. Doe Defendants 1-50, No. 15-cv-03312 NC, 2015 7 WL 13389609, at *2 (N.D. Cal. Sept. 29, 2015) (citation omitted). 8 Here, Alo alleges Defendants have a continued presence on eBay as “the seller kyy_40 is 9 still associated with an active eBay store,” which indicates that Defendants are real people operating 10 their eBay seller page from a physical location. [Dkt. 16 at 3]. Further, Alo alleges that the “eBay 11 platform requires its sellers to provide identification information in order to sell on the platform 12 including, but not limited to, an email address, full name, address, date of birth and social security 13 number.” [Dkt. 16-1 at 2]. Although it is possible that Defendants provided eBay with fraudulent 14 identifying information, the Court finds it reasonably plausible that the contact information that 15 Defendants would have had to provide to eBay would lead to the identification of actual individuals 16 subject to suit in federal court. Additionally, the San Francisco address provided on the packages 17 received by Alo from Defendant Fang provides at least a plausible basis to conclude that either 18 Defendants are located at that San Francisco address or, at least, are located in the Northern District 19 because they have demonstrated the kind of familiarity a locally based person would have of a 20 specific and actual location in San Francisco. Thus, Plaintiff has provided sufficient basis to 21 conclude that Defendants are likely individuals located within the jurisdiction of this Court. 22 Second, Alo provides a detailed account of steps taken in its attempts to locate and identify 23 Defendants. See Malibu Media, LLC v. Doe, No. 16CV1908-BAS(JMA), 2016 WL 6216180, at *2 24 (S.D. Cal. Oct. 25, 2016) (“Plaintiff must identify all previous steps taken to identify the Doe 25 Defendant in a good faith effort to locate and serve it.”). Here, after discovering that Defendants 26 were allegedly selling Alo-labeled products under a listed return address of 233 E Harris Ave Unit 27 C1, South San Francisco, California, 94080, Alo contacted a process server to serve Defendants. 1 find evidence Defendants are located at this address or that a unit C1 even exists at 233 E Harris 2 Ave.” [Dkt. 16 at 2]. The names “Sean Fang” and “kyy_40” were not listed in the online directory 3 for the building. [Dkt. 16-1 at 2]. 4 After attempting to serve process, Alo subsequently “attempt[ted] and fail[ed],” to find 5 additional contact information for Defendants. [Dkt. 17 at 2]. Since Alo had no IP address, phone 6 number, or other means by which to identify Defendants aside from their eBay seller names, Alo’s 7 only means of identifying Defendants was through the listed return address allegedly provided by 8 Defendant Fang. Because Alo attempted and failed to serve Defendants at the provided address, the 9 Court finds that Alo’s efforts are sufficient to satisfy this factor. See Strike 3 Holdings LLC v. Doe, 10 No. 18-CV-06938-WHO, 2019 WL 402358, at *2 (N.D. Cal. Jan. 31, 2019) (finding plaintiff’s 11 efforts sufficient, including web searches of the IP addresses, references to other sources of 12 authority, and a declaration from an IT expert stating that the service provider was the only entity 13 with the ability to identify the defendant). 14 Third, Alo’s Complaint could withstand a motion to dismiss because the Court concludes 15 that Alo sufficiently pleads trademark infringement under 15 U.S.C. § 1114. A complaint 16 underlying an application for early discovery must be able to withstand a motion to dismiss to 17 “prevent abuse of this extraordinary application of the discovery process and to ensure that plaintiff 18 has standing to pursue an action against defendant.” Columbia Ins., 185 F.R.D. at 579–80. Under 19 the familiar standards, to survive a motion to dismiss, “a complaint must contain sufficient factual 20 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To plead 22 a prima facie case of trademark infringement under the Lanham Act, 15 U.S.C. § 1114, a plaintiff 23 must establish “(1) that it has a protectible ownership interest in the mark; and (2) that the 24 defendant's use of the mark is likely to cause consumer confusion.” Good Meat Project v. GOOD 25 Meat, Inc., 716 F. Supp. 3d 783, 796-97 (N.D. Cal. 2024) (quoting Network Automation, Inc. v. 26 Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011)). 27 Here, Alo claims ownership of several trademarks registered with the U.S. Patent and 1 6137833, as well as application number 98085815, for various types of athletic wear. [Dkt. 7 at 2 ¶¶ 14-15]. Alo alleges that Defendants used one or more of the identified Alo Marks to sell allegedly 3 counterfeit Alo products to consumers on eBay. Id. at ¶¶ 17-18. As discussed above, the counterfeit 4 products purchased by Alo’s representatives “bore at least one ALO Mark on the product itself, 5 arrived in a plastic bag displaying the ALO Mark, and had at least one “Alo” branded tag.” Id. at 6 ¶ 20. Finally, Alo alleges that Defendants are “not authorized . . . to market or sell apparel or yoga- 7 related products in connection with the ALO Marks.” Id. at ¶ 28. Without ruling or expressing 8 premature opinions on the ultimate merits of this case, the Court finds that at this stage Alo’s 9 Complaint could withstand a motion to dismiss because it has established a prima facie case of 10 trademark infringement under the Lanham Act. 11 Finally, Alo has established that the requested, limited early discovery is likely to lead to 12 identifying information which will likely reveal the identity of Defendants. In order to establish this 13 factor, a Plaintiff must “provide enough concrete details about who these individuals are or how 14 they eventually could be identified, located, and served.” Biesenbach v. Does 1–3, No. 21-cv- 15 08091-DMR, 2022 WL 17371156, at *4 (N.D. Cal. July 18, 2022). Alo alleges that eBay “will 16 likely have current contact information for one or both of the[] Defendants, obtained from 17 Defendants registering and maintaining the eBay seller account used to sell the counterfeit ‘Alo’ 18 products.” [Dkt. 17 at 2]. eBay allegedly has in its possession Defendants’ names and their physical 19 address since some natural person signed up for and is paying eBay to be a registered seller on 20 eBay’s website. [Dkt. 16-1 at 2-3 (Declaration of Hillary I. Schroeder: “The eBay platform requires 21 its sellers to provide identification information in order to sell on the platform including, but not 22 limited to, an email address, full name, address, date of birth and social security number. Registered 23 businesses are required to submit additional information, including a business address.”)]. Alo 24 claims eBay is in a position to provide this limited information in response to the requested early 25 subpoena, and Alo argues that, after receipt of that information, Plaintiff will be able to identify 26 Defendants and ultimately serve process. [Dkt. 16 at 5]. Accordingly, the Court finds that Alo has 27 made a sufficient showing to satisfy this factor. 1 to the same result. Med Vets, No. 18-cv-02054-MMC, [Dkt. 45] at *3, aff’d Med Vets, 811 F. App’x 2 at 424. First, while a preliminary injunction is not pending, here the requested early discovery is 3 needed to allow the case to proceed against Defendants whose locations are currently unknown. 4 Second, Alo represents to the Court that the breadth of the proposed discovery request is limited and 5 narrow: the proposed subpoena will only seek from eBay the “active email address, a residential 6 address and/or a business address,” of the natural person who is the registered eBay seller behind 7 the seller’s page at issue. [Dkt. 16 at 4]. Third, the purpose for requesting the expedited discovery 8 is discussed above: Alo needs the discovery in order to be able to identify the locations and identities 9 of the people that are Defendants and thus to allow this case to go forward. Fourth, the burden on 10 the target of the discovery to comply with the requests appears cabined by Alo’s commitment to 11 seek only limited discovery from eBay and not free-ranging discovery to try to identify Defendants. 12 Finally, Alo’s request is presented at the outset of this case and thus far in advance of the typical 13 discovery process, but this is by necessity since Alo alleges it needs to identify and locate 14 Defendants in order to pursue the case beyond this filing and service of process stage. In sum, in 15 light of the Med Vets factors, the Court finds that Alo has demonstrated good cause warranting the 16 requested, early, and limited discovery. 17 In light of the facts and evidence presented to the Court and applying these facts to the legal 18 standards for early discovery, the Court finds that Alo has demonstrated good cause warranting the 19 requested early, limited discovery (specifically, the subpoena to eBay) to determine the location 20 information and identity of Defendants. Here, in consideration of the administration of justice, the 21 need for the requested discovery (to identify and locate the defendants and allow the case to go 22 forward) outweighs the prejudice to eBay (the target of the requested discovery) in light of the 23 limited and narrow nature of the requested subpoena. Semitool, 208 F.R.D. at 276. Indeed, here the 24 trademark infringement claims are supported by evidence of physical products and packaging 25 bearing Alo’s registered trademarks. Cf. id. (“It should be noted that courts have recognized that 26 good cause is frequently found in cases involving claims of infringement and unfair competition.”). 27 Therefore, the Court GRANTS leave to serve the limited, proposed third-party subpoena on eBay 1 CONCLUSION 2 Pursuant to the discussion herein, the Court GRANTS Alo’s ex parte application for leave 3 || to serve a limited, early third-party subpoena to eBay seeking only the specific information 4 || described herein. 5 This RESOLVES Dkt. 16. 6 7 || ITISSO ORDERED. 8 Dated: June 15, 2026 Eg 4 10 , PETER H. KANG □ United States Magistrate Judge a 12 2

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