In Shenzhen Chengront Technology Co., Ltd v. Besign Direct et al, 1-22-cv-10281 (SDNY Dec. 9, 2022) (Jennifer L. Rochon), Judge Rochon of the Southern District of New York denied a Plaintiff’s request for a temporary restraining order (“TRO”) and cited the Plaintiff’s ten-month delay in filing suit as the primary reasoning for denying the TRO.

On December 5, 2022, Plaintiff Shenzhen Chengront Technology Co., Ltd (“Plaintiff”) brought suit against Defendants Besign Direct and Shenzhen JianYi KeJi Youxian Gongsi (“Defendants”) alleging infringement of Plaintiff’s patent for an adjustable laptop stand. That same day, Plaintiff also filed an emergency motion for an ex parte TRO prohibiting the Defendants from selling the accused products online.

Under Federal Rule of Civil Procedure 65(b), the Court may issue an ex parte TRO only if “specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition,” and the moving party’s attorney has “certified in writing any efforts made to give notice and the reasons why it should not be required.” Typically, in most jurisdictions, and as is the case here, the same legal standard governs the issuance of preliminary injunctions and TROs.

To obtain an injunction, the moving party must demonstrate (1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the movant’s favor; and (3) that the public’s interest weighs in favor of granting an injunction. A plaintiff’s delay in seeking a TRO after being put on notice of the alleged harm is “compelling evidence” that there is no irreparable harm. For example, the Court noted that generally speaking, several months’ delay in seeking injunctive relief indicates a plaintiff will not be irreparably harmed by further delay in getting injunctive relief.

In this case, the Court first found that Plaintiff had been in a prior business relationship with the Defendants and that information regarding the patented invention was shared between the parties in 2020. Shortly thereafter, the Defendants began purchasing the invention from the Plaintiff and reselling it through Amazon.

However, the Plaintiff asserts that starting in about February 2022, the Defendants ceased purchasing the invention from Plaintiff and instead began selling a similar infringing product on Amazon. Thus, the Court found that Plaintiff was aware that Defendants were allegedly infringing Plaintiff’s patent since February 2022. Yet, the Court also found Plaintiff waited ten months – until December 5, 2022 – to file suit and seek a TRO.

The Court reasoned even if Plaintiff and Defendants were attempting to resolve the dispute during that time as Plaintiff asserts, or Plaintiff was looking for counsel, the significant delay supports the inference that Plaintiff is not currently being irreparably harmed by the Defendants’ actions. Thus, the Court found that the ten-month delay demonstrates that immediate relief through a TRO is not warranted. Accordingly, the Court denied Plaintiff’s motion for a TRO.

This case is a strong reminder to always be diligent in seeking relief and asserting your rights, as a failure to do so may result in a waiver of some of those rights.