Anova Applied Electronics Inc v. Perch Acquisition Co 1 LLC

• Court: District Court, W.D. Washington
• Decided: August 11, 2023
• Docket: 2:23-cv-00843
• Status: Unknown

Opinion

1 2

3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 ANOVA APPLIED CASE NO. C23-0843JLR ELECTRONICS, INC., 11 ORDER Plaintiff, 12 v.

13 PERCH ACQUISITION CO 1 LLC, et al., 14 15 Defendants.

16 I. INTRODUCTION 17 Before the court is Anova Applied Electronics, Inc.’s (“Anova”) renewed ex parte 18 motion for injunctive relief to enjoin the distribution of certain products that Anova 19 alleges infringe upon its patent and trademarks. (Mot. (Dkt. # 20).) Although most 20 Defendants have received notice of the motion (see 7/24/23 Billick Decl. (Dkt. # 25 at 21 7-11)), none have appeared in this case or responded to the motion (see Dkt.). The court 22 has considered Anova’s motion, its filings in support of its motion, the balance of the 1 record, and the governing law. Being fully advised,1 the court DENIES Anova’s motion 2 for injunctive relief.

3 II. BACKGROUND 4 Anova asserts that it is “a global leader in kitchen appliances and accessories” and 5 that its Precision Cooker sous vide2 cooking device “has become the best-selling sous 6 vide device on the market today.” (Compl. (Dkt. # 1) ¶ 16.) Anova holds United States 7 Reissue Patent No. RE49,267 (the “RE267 Patent”) that “relates generally to food 8 cooking devices, and more specifically, to precision temperature control water heaters

9 and water pump circulator appliances having an alarm system, or alert system, or both” 10 and covers the Precision Cooker. (Compl. ¶ 17; see id., Ex. 1 (“RE267 Patent”).) Anova 11 also holds two registered trademarks in its Precision brand: Reg. No. 4,989,116 for 12 “PRECISION” in connection with constant temperature immersion circulators for use in 13 cooking and Reg. No. 6,392,242 for “PRECISION” in connection with sous vide

14 machines and electric sous vide cookers (together, the “PRECISION Marks”). (Compl. 15 ¶¶ 18-19; see id., Exs. 2-3 (registration certificates).) 16 This case arises from alleged infringements of Anova’s patent and trademarks by 17 Defendants Perch Acquisition Co 1 LLC d/b/a “Sousvide Art” (“Sousvide Art”); Wedge 18

19 1 Although Anova has requested oral argument (see Mot. at 1), the court finds that oral 20 argument would not be helpful to its resolution of the motion, see Local Rules W.D. Wash. LCR 7(b)(4).

21 2 “The ‘sous vide’ technique of cooking involves cooking ingredients in a vacuum-sealed pouch submerged in water, typically at a long time at a low temperature.” (Compl. (Dkt. # 1) 22 ¶ 15.) 1 and Wagon LLC (“Wedge and Wagon”); Dmytro Makarov; Iryna Voloshyna; 2 jinantaizhuofurundianzishangmaoyouxiangongsi, doing business on Amazon.com as

3 “Lekoza Direct” (“Lekoza”); Maksym Mosinian, doing business on Amazon.com as 4 “Garnease” (“Garnease”); HONG KONG XING HUA TECHNOLOGY CO., LIMITED, 5 doing business on Amazon.com as “Upesitom” (“Upesitom”); and dongguanshi 6 yingsheng keji youxiangongsi, doing business on Amazon.com as “Caukins” (“Caukins”) 7 (together, “Defendants”). (See generally Compl.) According to Anova, Defendants 8 infringed its patent and trademarks by manufacturing, importing, offering for sale, and

9 selling “certain ‘Sousvide Art Precision Cooker’ products” (the “Accused Products”) in 10 the United States. (Id. at 2.) Specifically, Anova alleges claims against Defendants for 11 infringement of the RE267 Patent and the PRECISION Marks; unfair competition, false 12 designation of origin, and false and misleading representation in violation of Section 13 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); dilution in violation of Section 43(c) of

14 the Lanham Act, 15 U.S.C. § 1125(c); trademark infringement and unfair competition in 15 violation of Washington common law; and violation of the Washington Consumer 16 Protection Act, ch. 19.86 RCW. (Id. ¶¶ 27-92.) Anova seeks, among other relief, 17 preliminary and permanent injunctions enjoining Defendants from infringing the RE267 18 Patent and PRECISION Marks; damages; treble damages for willful infringement; and

19 attorney’s fees and costs. (Id. at 26-28.) 20 On June 20, 2023, Anova filed an ex parte motion for a preliminary injunction in 21 which it asked the court to order Defendants “to immediately cease advertising, offering, 22 selling, and importing . . . in the United States” the Accused Products. (6/20/23 Mot. 1 (Dkt. # 14).) The court denied the motion on June 22, 2023. (6/22/23 Order (Dkt. # 18).) 2 The court explained that it “may issue a preliminary injunction only on notice to the

3 adverse party” and instructed Anova that it could either renew its motion with proof that 4 it had given notice to Defendants pursuant to Federal Rule of Civil Procedure 65(a)(1) or 5 file a motion for a temporary restraining order (“TRO”) without notice pursuant to 6 Federal Rule of Civil Procedure 65(b) and Local Rules W.D. Wash. LCR 65(b). (Id. 7 (quoting Fed. R. Civ. P. 65(a)(1)).) 8 Anova has now filed a renewed motion seeking (1) a preliminary injunction

9 against Defendants Sousvide Art, Wedge and Wagon, Mr. Makarov, Ms. Voloshyna, 10 Garnease, and Lekoza and (2) a TRO against Upesitom and Caukins. (See generally 11 Mot.) It again asks the court to “order all Defendants to immediately cease advertising, 12 offering, selling, and importing” the Accused Products in the United States, and it states 13 that it is prepared to post a bond pursuant to Federal Rule of Civil Procedure 65(c). (Id.

14 at 19.) Anova represents that (1) it has given notice of this motion for preliminary 15 injunction to all of the Defendants except Upesitom and Caukins; (2) Sousvide Art has 16 waived service of process; (3) Wedge and Wagon has been served through its registered 17 agent; and (4) Anova has initiated the process of serving Upesitom and Caukins via the 18 Hague Convention. (See generally 7/24/23 Report (Dkt. # 25 at 1-6); 7/24/23 Billick

19 Decl. (Dkt. # 25 at 7-11).) So far, however, none of the Defendants have appeared in this 20 action. (See Dkt.) 21 22 1 III. ANALYSIS 2 Federal Rule of Civil Procedure 65 empowers the court to issue preliminary

3 injunctions and TROs. Fed. R. Civ. P. 65. Preliminary injunctions and TROs are 4 “extraordinary remed[ies] never awarded as of right.” Winter v. Nat. Res. Def. Council, 5 Inc., 555 U.S. 7, 24 (2008); Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). 6 The court applies the same standards when evaluating motions for preliminary 7 injunctions and motions for TROs. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 8 240 F.3d 832, 839 n.7 (9th Cir. 2001). A party seeking these forms of injunctive relief

9 “must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer 10 irreparable harm in the absence of preliminary relief, that the balance of equities tips in 11 [its] favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. The 12 Ninth Circuit also employs a sliding scale approach under which “‘serious questions 13 going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can

14 support issuance of a preliminary injunction, so long as the plaintiff also shows that there 15 is a likelihood of irreparable injury and that the injunction is in the public interest.” All. 16 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). For the reasons set 17 forth below, the court concludes that Anova has not established a likelihood that it will 18 suffer irreparable harm in the absence of preliminary relief and DENIES Anova’s motion

19 for injunctive relief. 20 A plaintiff seeking an injunction “must make a clear showing that it is at risk of 21 irreparable harm, which entails showing a likelihood of substantial and immediate 22 irreparable injury.” Apple Inc. v. Samsung Elecs. Co., 695 F.3d 1370, 1374 (Fed. Cir. 1 2012); see also Herb Reed Enters., LLC v. Fla. Ent. Mgmt., Inc., 736 F.3d 1239, 1251 2 (9th Cir. 2013). The plaintiff must demonstrate that: (1) “absent an injunction, it will

3 suffer irreparable harm”; and (2) “a sufficiently strong causal nexus relates the alleged 4 harm to the alleged infringement.” Apple Inc., 695 F.3d at 1374. The movant “must 5 proffer evidence sufficient to establish a likelihood of irreparable harm”; it cannot rely on 6 “unsupported” or “conclusory” assertions of harm. Herb Reed Enters., 736 F.3d at 7 1250-51. It must also establish that remedies available at law, such as monetary 8 damages, are inadequate to compensate for the harm caused by continued alleged

9 infringement. Id. at 1250; see Celsis in Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 10 (Fed. Cir. 2012) (“[T]he irreparable harm inquiry seeks to measure harms that no 11 damages payment, however great, could address.”). 12 Anova asserts that absent an injunction and TRO, it will “continue to lose market 13 share and reputation as an industry leader.” (Mot. at 17.) It reasons that because

14 households rarely purchase multiple sous vide devices, “when a person purchases a lower 15 cost competing device that infringes Anova’s intellectual property, Defendants gain an 16 unfair advantage by effectively removing that person from the potential buyer . . . pool 17 until a need to buy a new sous vide arises.” (Id.) It also asserts that “regardless of the 18 volume sold of Accused Products, Anova losing control over its PRECISION Marks is

19 sufficient basis to find the likelihood of irreparable harm.” (Id. (citing 2Die4Kourt v. 20 Hillair Capital Mgmt., LLC, 692 F. App’x 366, 369 (9th Cir. 2017)).) 21 Anova does not, however, present sufficient evidence to support its assertions of 22 irreparable harm. First, the only evidence Anova cites in its discussion of harm is an 1 exhibit to its complaint comprised of screenshots of Defendants’ Amazon storefronts and 2 product listing pages showing that the alleged infringing products had “garnered a

3 substantial volume of reviews on Amazon.com.” (Mot. at 17 (citing Compl., Ex. 5 at 3 4 (screenshot showing that the Sousvide Art Precision Cooker Kit has received 4,698 5 reviews)).) The mere fact that Amazon customers have reviewed Defendants’ products, 6 however, is not enough to support a finding that Anova will be irreparably harmed absent 7 an injunction. Second, contrary to Anova’s assertion that “losing control” over its 8 PRECISION Marks is enough to establish a likelihood of irreparable harm (id.), the

9 Ninth Circuit has made clear that a finding of irreparable harm cannot be based “solely 10 on a strong case of trademark infringement;” rather, the movant must establish 11 irreparable harm with evidence. Herb Reed Enters., 736 F.3d at 1251 (reasoning that 12 inferring irreparable harm from a strong case of infringement “collapses the likelihood of 13 success and the irreparable harm factors” of the preliminary injunction test). Finally,

14 even if Anova could establish its claimed harms, it does not address, let alone provide 15 evidentiary support for, the requirement that monetary damages be inadequate to 16 compensate those harms. (See generally Mot.) Because Anova’s assertions of harm are 17 merely conclusory statements without evidentiary support, the court finds that Anova has 18 not met its burden to establish that it is likely to suffer irreparable harm in the absence of

19 // 20 // 21 // 22 // 1 an injunction. Accordingly, the court DENIES Anova’s renewed motion for injunctive 2 relief.3

3 IV. CONCLUSION 4 For the foregoing reasons, the court DENIES Anova’s renewed ex parte motion 5 for injunctive relief (Dkt. # 20). 6 Dated this 11th day of August, 2023. 7 A 8 9 JAMES L. ROBART United States District Judge 10 11 12 13 14 15 16 17 18

19 20

21 3 Because Anova fails to demonstrate irreparable harm, the court need not address the other factors of the preliminary injunction test. See, e.g., Perfect 10, Inc. v. Google, Inc., 653 22 F.3d 976, 982 (9th Cir. 2011).