IP Law Daily, PATENT—S.D.N.Y.: Lymphatic Brush seller not entitled to sweeping TRO against multiple online sellers, (Aug 28, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

Screenshots alone did not establish likely design patent infringement, while the evidence showed that numerous defendants had not used the copyrighted marketing images.

A federal district court in New York has denied a seller of a lymphatic drainage brush an ex parte temporary restraining order against 100 predominantly foreign online sellers accused of design patent and copyright infringement. The court held that the plaintiff failed to establish a likelihood of success on its design patent claims because it deliberately canceled purchases from the defendants and therefore provided no physical products permitting a meaningful infringement comparison. Its copyright evidence was also deficient because 22 defendants apparently had not used the copyrighted images. The court additionally questioned whether the 100 defendants were properly joined in a single action under 35 U.S.C. § 299 (CJB Global Imports, Inc. v. The Individuals, Corporations, Limited Liability Companies, No. 1:26-cv-06568-NRB (S.D.N.Y. Aug. 26, 2026)).

Background. CJB sells the “Lymphatic Brush,” a device marketed for facial and body lymphatic drainage. It owns a design patent covering the brush’s ornamental design and a registered copyright covering several marketing photographs used to promote the product. CJB sued 100 defendants, believed to operate from China or other foreign jurisdictions, alleging that they sold products infringing its design patent and used its copyrighted marketing images on online storefronts.

CJB brought the action as “Schedule A” litigation, initially concealing the defendants’ identities and seeking extensive ex parte relief before they received notice. It asked the court to restrain allegedly infringing sales, authorize expedited discovery from financial institutions and online platforms, freeze defendants’ assets, and permit electronic service.

The requested discovery would have required institutions including Amazon and payment providers to identify defendants’ accounts, contact information, and assets. CJB then sought to freeze assets associated with the defendants, apparently without limiting the restraint to proceeds from allegedly infringing sales. The court stressed that such relief could substantially affect defendants’ ability to defend themselves before they even learned of the lawsuit.

Design patent. CJB failed to establish likely infringement of its design patent. Although it submitted documentation showing orders placed with 99 defendants, it had intentionally canceled every order shortly after placing it. Consequently, the record contained no physical example of CJB’s product or any allegedly infringing product for comparison, only screenshots of online listings and order confirmations.

The court described this evidentiary deficiency as “self-inflicted.” Under the ordinary-observer test articulated in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008), design patent infringement depends on whether an ordinary purchaser would consider the accused and patented designs substantially the same.

Screenshots were insufficient on this record. CJB held only a design patent protecting the ornamental aspects of the brush, rather than a utility patent preventing competitors from selling products that perform the same function. Differences in appearance were therefore particularly important. With 100 separately accused sellers and no physical products available for comparison, the court could not determine that CJB was likely to establish infringement against each defendant.

Copyright claims. CJB’s copyright allegations independently failed to justify the requested TRO. CJB alleged ownership of several marketing photographs created to promote the Lymphatic Brush and asserted that defendants reproduced those images in listings for competing products.

But CJB’s own exhibits did not establish infringement by every defendant. The evidence indicated that 22 of the 100 defendants had not used the copyrighted images at all. Because CJB sought the same broad injunctive relief against all defendants, it could not establish a likelihood of success on the copyright claims sufficient to support the requested order.

The court also observed that copyright owners have mechanisms under the Digital Millennium Copyright Act for seeking removal of infringing material directly through service providers such as online marketplaces.

Joinder concerns. Although joinder was not formally before it, the court separately questioned whether CJB could properly maintain its patent claims against all 100 defendants in one action. Under 35 U.S.C. § 299(b), accused infringers cannot be joined merely because each allegedly infringed the same patent.

CJB alleged on information and belief that defendants obtained products from common suppliers or manufacturers and sold through common retail platforms. The court found that the unsupported assertion was insufficient to establish the relationship required for joinder. As Williamson v. Verizon Communications, Inc., 2013 WL 323992 (S.D.N.Y. Jan. 18, 2013), recognized, allegations that unrelated defendants sell similar products infringing the same patent do not alone permit joinder. The court therefore observed that the defendants might be improperly joined, while leaving the issue for another stage of the case.

Outcome. Finding that CJB had not demonstrated a likelihood of success on either its design patent or copyright claims, the court denied the requested temporary restraining order. It expressly did not decide whether CJB satisfied the remaining requirements for preliminary injunctive relief.

The Case is No. 1:26-cv-06568-NRB.

Judge: Buchwald, N.

Attorneys: Keaton David Smith (Whitewood Law PLLC) for CJB Global Imports, Inc.

Companies: CJB Global Imports, Inc.

Cases: Patent NewYorkNews