FINDINGS OF FACT AND CONCLUSIONS OF LAW IN CONNECTION WITH PRELIMINARY INJUNCTION Plaintiff, Smart Study Co., Ltd., commenced this copyright and trademark infringement action with the filing of its Complaint [ECF #6] on February 27, 2020. The case concerns the trademark and copyright rights to commercial use of the “Baby Shark” image and name. See Complaint 8-14. Baby Shark, as explained further below, is a worldwide sensation geared at toddlers and young children that has been marketed and licensed by Plaintiff following the release of a viral video on the internet in 2016. See Complaint 8-9. Plaintiff claims that Defendants, more than 100 individuals, companies, and other business entities, sell counterfeit Baby Shark products through Alibaba and AliExpress (Chinese marketplaces and e-commerce platforms), infringing on its intellectual property. See Complaint
26-27, 30-45. On the same day the Complaint was filed, Plaintiff filed an application for a temporary restraining order and preliminary injunction [ECF #12-16] seeking to enjoin the sale of allegedly counterfeit Baby Shark products, which Plaintiff claims infringe on Plaintiff’s intellectual property rights. The temporary restraining order (“TRO”) was granted that day [ECF #21]. The TRO, inter alia, allowed alternative email service on Defendants, retailers who sell allegedly counterfeit products through internet retail platforms related to Chinese company Alibaba, and set dates for briefing and a hearing on the motion for a preliminary injunction. However, as a result of the global COVID-19 pandemic and the ensuing shutdown of most business in China, more time than originally allowed was needed to locate service email addresses for the Defendants. As a result, the Court modified the TRO to allow Plaintiff more time to serve the Defendants, and for the Defendants to file oppositions to the preliminary injunction motion. See ECF #18 at 1. On March 16, 2020, all Defendants were served,1 see ECF #20, and oppositions from Defendants were due April 24, 2020. None were filed. On May 5, 2020, the Court held a hearing on the application for a preliminary injunction. Only counsel for Plaintiff appeared; no representatives of any Defendant participated in the hearing or have appeared in this action. At the hearing, following argument and questioning of counsel for Plaintiff, the Court granted the motion for a preliminary injunction, and a written Order was entered shortly thereafter. See ECF #23 (the “Preliminary Injunction Order”). At the May 5 hearing, the Court summarized its findings of fact and conclusions of law which lead it to grant the injunction, see Fed. R. Civ. P. 52(a)(2), but noted a full opinion would follow. FACTUAL FINDINGS No Defendant has appeared in this action, and no opposition briefing was filed in advance of the May 5 hearing. Thus, the facts as stated in Plaintiff’s Complaint are undisputed. For the purposes of the motion for a preliminary injunction, the Court adopts all of the facts as stated in the Complaint and the papers in support of the motion. See Featherstone v. Barash, 345 F.2d 246, 250 (10th Cir. 1965) (“[I]f there is no dispute between the parties about the facts, allegations of the complaint may be accepted as true, thus eliminating the necessity of formal findings.”); Carpenters’ Dist. Council, Detroit, Wayne & Oakland Ctys. & Vicinity, of United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. Cicci, 261 F.2d 5, 8 (6th Cir. 1958) (“It is true that if there is no dispute between the parties about the facts, the allegations of a complaint may be accepted as true, thus eliminating the necessity of formal findings….”). While not an exhaustive recitation, the Court summarizes the facts here. Plaintiff is a South Korean company that develops entertainment and gaming content for a global audience. Complaint 7. Plaintiff produces content directed at preschool-aged children through a single brand, Pinkfong. Complaint 8. In 2016, Pinkfong released the “Baby Shark” song and music video on YouTube. Id. The song and video soon went viral, and today the video has over 3.1 billion views on YouTube. Complaint 8.2 After the video’s release, Plaintiff developed a worldwide licensing program for Baby Shark products, including toys, clothing, and entertainment. Complaint 9. After the products were introduced to the market, Plaintiff also applied for and received various trademark and copyright registrations for Baby Shark and other related concepts like “Mommy Shark,” “Daddy Shark,” and “Baby Shark (Motion Picture).” Complaint 13, 15. Today, Baby Shark remains a widely popular brand for young children. Defendants, who are individuals and business entities located in China, see Complaint 26, attempted to capitalize on the Baby Shark phenomenon by selling allegedly counterfeit Baby Shark products. Complaint 27. The products are sold on Alibaba and AliExpress, e-commerce platforms that allow merchants to sell goods to a global audience. Complaint 23. The sites annually have over $1 billion in sales internationally, including to the United States, see Complaint 24, but allegedly have also become known as a marketplace for counterfeit and trademark/copyright infringing goods. See Complaint 25. Confirming that reputation, Defendants here, rather than proceed through Plaintiff’s licensing program, manufactured, marketed, and sold Baby Shark products that appear to infringe on Plaintiff’s intellectual property. See Complaint
