Category: Design Patent / Schedule A TRO / Preliminary injunction defense
Reading Time: 4 minutes
Overview
Schedule A litigation allows intellectual property owners to sue multiple online sellers in a single action and, in some cases, obtain an ex parte temporary restraining order (TRO) before defendants have an opportunity to respond. For overseas sellers, the immediate result may include frozen payment accounts, restricted storefronts, and significant settlement pressure.
A recent Federal Circuit decision illustrates an important point: appearing in court does not guarantee that a seller will defeat a TRO, but it can force the plaintiff to move from generalized allegations to defendant-specific evidence.
On August 14, 2026, the Federal Circuit decided Jacki Easlick, LLC v. CJ Emerald, affirming a district court’s refusal to enter a preliminary injunction against Chinese seller AccEncyc US.
From an Ex Parte TRO to an Adversarial Proceeding
The plaintiff owned U.S. Design Patent No. D695,526 covering the ornamental design of a handbag hook. In 2023, it sued 67 online sellers and obtained an ex parte TRO affecting defendants’ assets and online storefronts.AccEncyc, however, actively defended the case.That changed the evidentiary dynamic.
At the ex parte stage, the court generally hears only the plaintiff’s case. Once the defendant appears, the plaintiff must defend its allegations against competing evidence and establish the requirements for continued injunctive relief.
Two issues proved particularly important: likelihood of infringement and irreparable harm.
Similar Function Does Not Necessarily Mean Design Patent Infringement
The design patent protected the product’s ornamental appearance, not the general concept of two vertically connected hooks.
After separating functional aspects from protected ornamental features, the district court identified meaningful differences between the patented and accused designs, including their central structures and hook configurations. It concluded that an ordinary observer could readily distinguish the products.
For sellers, the lesson is straightforward: performing the same function does not by itself establish design patent infringement. The relevant question is whether the accused product appropriates the protected visual impression of the patented design.
Irreparable Harm Requires Evidence
The plaintiff also alleged lost customers, declining profits, consumer confusion, price erosion, and damage to goodwill.
But the court found insufficient evidence connecting those harms specifically to AccEncyc. General assertions about the types of harm infringement may cause were not enough.
The Federal Circuit also rejected the argument that the earlier TRO effectively established the need for continued relief. An ex parte TRO is based on a one-sided record. Once the defendant appears and the record develops, the court must reassess whether a preliminary injunction remains justified.
What This Means for Cross-Border Sellers
The decision does not invalidate Schedule A litigation, nor does appearing in court automatically lift an asset freeze.
Instead, it demonstrates the practical value of active defense.
A seller facing a TRO should promptly preserve the complaint and court orders, accused product information, supplier records, invoices, design materials, and sales data. Counsel can then evaluate infringement, irreparable harm, jurisdiction, service, and the appropriate scope of any asset restraint.
Depending on the facts, an active defense may help prevent a preliminary injunction, narrow an asset freeze, improve settlement leverage, or establish non-infringement.
The Bottom Line
An ex parte TRO can make a seller feel that the case has already been decided. It has not.Jacki Easlick v. CJ Emerald demonstrates that once a defendant appears and challenges the record, the plaintiff may have to prove infringement and irreparable harm against that particular seller—not simply rely on the generalized allegations that supported the original TRO.
Disclaimer
This article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Businesses should consult a licensed before legal or commercial decisions.
Contributors
Jane (Jie) Li
Founding Attorney
California | +1. 213. 774. 2132
jli@innoslaw.com
Kefei Wu
Director of Global Operations
Paris | +33. 6. 98. 12. 89. 80
kwu@innoslaw.com
