Jetchill Ltd. v. Shenzhen Jiarui Minghui Trading Co., Ltd. et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:25-cv-23377-DSL
JETCHILL LTD,
Plaintiff,
v.
SHENZHEN JIARUI MINGHUI
TRADING CO., LTD., and
EXPLONOVA STORE,
Defendants.
____________________________________/
REPORT AND RECOMMENDATIONS
THIS CAUSE is before the Court upon Plaintiff Jetchill Ltd’s Motion for Preliminary
Injunction, (ECF No. 21). Named Defendants Shenzhen Jiarui Minghui Trading Co., Ltd. and
Explonova Store (collectively, “Defendant”)1 filed a Response in Opposition to the Motion, (ECF
No. 51), to which Plaintiff filed a Reply, (ECF No. 56). The undersigned convened an evidentiary
hearing on Plaintiff’s Motion on October 23, 2025, a transcript of which has been filed on the
docket. (ECF No. 77). The Court permitted the Parties, upon their request, to file written closing
arguments in lieu of oral closings, (id. at 128), and the Parties submitted their Closing Briefs on
November 3, 2025. (ECF Nos. 78, 80). Having reviewed the Parties’ briefing, the oral argument
and evidentiary proffers at the October 23 Hearing, and the record as a whole, and based on the
reasoning set forth below, the undersigned respectfully recommends that Jetchill’s Motion for
Preliminary Injunction be DENIED.
1 Explonova Store is the seller name of Jiarui Minghui Trading Company, Ltd. (ECF No. 22 at 1). Accordingly, this
Report and Recommendation refers to the two named Defendants, collectively, as a single party.
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I. 	BACKGROUND AND PROCEDURAL HISTORY
This action concerns aroma guns—bubble-making machines for use in beverage and
cocktail mixing—and bubble mixtures and cocktail aromas designed for use therewith. Jetchill, a
UK manufacturer of tools, accessories, and ingredients for the hospitality industry.
On July 28, 2025, Jetchill filed a Complaint seeking damages and injunctive relief against
Defendant. (ECF No. 1). The Complaint alleges, broadly, that Defendant has promoted, advertised,
sold and/or offered for sale “counterfeits and infringements of Plaintiff’s high-quality patented
aroma guns, and bubble mixtures and cocktail aromas[.]” (Id. ¶ 104). Plaintiff asserts six Counts
against Defendant: Trademark Infringement (Count I); False Designation of Origin (Count II);
Common Law Trademark Infringement (Count III); Design Patent Infringement (Count IV);
Utility Patent Infringement (Count VI); and Deceptive or Unfair Trade Practices in violation of
Florida Law (Count VII).2 (Id. at 22–27). Plaintiff seeks entry of a preliminary injunction premised
on its trademark infringement and patent infringement claims. (ECF No. 21).
Plaintiff registered the “FLAVOUR BLASTER” trademark, Registration No. 7,367,037,
on April 23, 2024. (ECF No. 73-1). Plaintiff also owns a design and a utility patent for its Flavour
Blaster aroma gun. Plaintiff registered the design patent, entitled “Bubble Maker,” U.S. Patent No.
D960,994 S, on August 16, 2022. (ECF No. 73-4). Plaintiff registered the utility patent, entitled
“Device or System for Creating a Vapour Filled Bubble,” U.S. No. 11,944,994 B2, on April 2,
2024. (ECF No. 73-5). Defendant registered a design patent for its own aroma gun, the Aroma
Blaster, on October 29, 2024. Defendant’s design patent is entitled “Smoke Device,” U.S. Patent
No. D1,049,471 S. (ECF No. 78-1).
2 Plaintiff’s Complaint omits Count V.
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On August 13, Plaintiff moved to impose an ex parte temporary restraining order (TRO)
on Defendant, (ECF No. 5), which motion the Court granted on August 27. (ECF No. 11). The
TRO as first issued was set to expire on September 10. (Id.). Subsequently, and while the TRO
was pending, Plaintiff filed the present Motion for Preliminary Injunction, (ECF No. 21). After
entering the litigation, Defendant filed a Motion to Dissolve the TRO, (ECF No. 22). Plaintiff filed
a Motion to Extend the TRO beyond its September 10 date of expiry, (ECF No. 24). Plaintiff’s
Motion was granted, in part, (ECF No. 28), whereupon the Plaintiff’s request for continued
extension of the TRO, its Motion for Preliminary Injunction, and Defendant’s Motion to Dissolve
were referred to the undersigned for a report and recommendation. (ECF No. 34).
On October 13, 2025, the undersigned recommended that Defendant’s Motion to Dissolve
be denied, as moot, and that Plaintiff’s Motion to Extend the TRO be denied. (ECF No. 52). On
October 21, the District Court adopted the undersigned’s Report and Recommendation. (ECF No.
67). Still to be resolved was Plaintiff’s Motion for Preliminary Injunction.
An evidentiary hearing on the Motion was held on October 23. At the hearing, information
came to light that had not been presented to the Court when it ruled on Plaintiff’s ex parte Motion
for Temporary Restraining Order, (ECF No. 11). First, it was revealed that Plaintiff had first
learned of Defendant’s alleged infringement of Plaintiff’s intellectual property rights “sometime
in 2023.” (ECF No. 77 at 110). Second, the Parties advanced evidence demonstrating that
Defendant’s seller name, “Explonova,” is prominently displayed upon its Aroma Blaster products
and packaging. See (id. at 92–93).
At the hearing, Plaintiff relied on the testimony of Mr. Robert Flunder, the Company’s co-
founder, as well as on the testimony of Plaintiff’s lead counsel. See (ECF No. 77 at 26–27). In
support of Plaintiff’s position on its trademark claim, Mr. Flunder testified as to the FLAVOUR
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BLASTER’s conception and launch in 2019, how the device functions, (id. at 29–30), core buyer
base (id. at 30), sales and distribution channels and practices, (id. at 30–31), and marketing and
advertising channels, (id. at 32–33).
Plaintiff sells its Flavour Blaster aroma gun in the business-to-business hospitality space.
Specifically, Plaintiff proffers that its consumers include “all types of hospitality venues; whether
it is restaurants, bars, clubs, hotels, all the way from small bars . . . that hold 20 people all the way
up to multinational companies such as Disney . . . . An example would be PF Chang’s, which has
220 venues across the USA.” (ECF No. 77 at 30). Plaintiff’s Exhibit No. 13—representing
Defendant’s proprietary webpage for the Aroma Blaster—advertises the product as “[p]erfect for
bar counters, outdoor picnics, and family gatherings,” and as “a unique and thoughtful gift for any
occasion, including weddings, housewarmings, anniversaries, Christmas, Thanksgiving, and
birthdays.” (ECF No. 73-13, Pl’s Ex. No. 13 at 1). Both parties sell their product online, through
their own company webpages, e-commerce markets such as Amazon, and, in Plaintiff’s case,
through distributors. (Id. at 30–31).
Mr. Flunder testified that Jetchill became aware of suspected “copycat” products infringing
on its trademark “around 2022” (id. at 35–36, 54–55). Plaintiff became aware of Defendant’s
marketing and sale of the AROMA BLASTER “sometime in 2023,” (id. at 110). He further spoke
to the effect of these copycat products’ availability in the marketplace on its business reputation,
revenues, and annual marketing and promotional spend, (id. at 36–40, 43–52, 56–57), and on its
efforts to combat alleged infringement—initially through the Amazon Grand Registry and later
through litigation—and remediate perceived or anticipated confusion among its products and
alleged infringers’ goods, (id. at 55–59, 65).
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On cross-examination, Defense counsel elicited Mr. Flunder’s testimony regarding
trademark confusion. For example, Defense counsel referred to images of the Flavour Blaster and
Aroma Blaster product kits and questioned Mr. Flunder regarding the kits’ display of the Parties’
respective brand logos. (Id. at 92–93). Defense counsel also suggested that Jetchill’s loss in
revenues could be owing to factors other than competitive entry; for example, the Flavour Blaster’s
comparatively high sales price point in the market. See (id. at 125).
Concerning Plaintiff’s design patent claim, Mr. Flunder testified as to the inspiration for
the Flavour Blaster’s ornamental design. See, e.g., (id. at 59). Originally inspired by the Dewalt
Drill, the Flavour Blaster was repeatedly described as lending a unique tone of theatricality to the
mixology space. See, e.g., (id. at 59–60, 61, 69, 139). The device was designed to appear “a bit
Sci-Fi” and reminiscent of “Star Wars,” wherein a “blaster” is a futuristic gun. (Id. at 62).
On cross-examination, Defense counsel sought to distinguish the Flavour Blaster and
Aroma Blaster’s ornamental designs. Mr. Flunder testified that, whereas the Aroma Blaster could
conceivably be designed to resemble a wand rather than a gun, both products shared the overall
“look” of a gun or a hand drill—hence their “blaster” nomenclature. (Id. at 96–99). Mr. Flunder
conceded that specific features of the Aroma Blaster differ from those of the Flavour Blaster. For
example, the Flavour Blaster has arrows on its nozzle, whereas the Aroma Blaster does not. (Id. at
98, 102). Mr. Flunder acknowledged numerous discrete differences amongst the products but
maintained that the overall looks of the devices were very similar. (Id. at 98–99, 104).
Defense counsel further queried Mr. Flunder as to why Plaintiff had waited longer than one
year from the date of its patent registration to bring its claims. Mr. Flunder testified that Jetchill
did try to take action against various companies, and that it had attempted to combat suspected
infringement through the Amazon web marketplace’s Grand Registry before bringing suit.
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As to Plaintiff’s utility patent claim, Mr. Flunder testified that the Flavour Blaster and
Defendant’s Aroma Blaster perform the same function in the same way. (Id. at 69). Plaintiff moved
into evidence an exhibit comparing the language of the Flavour Blaster’s utility patent to the
functions of the Aroma Blaster; the exhibit was used as a demonstrative, (id. at 81–82).
Defense counsel questioned Mr. Flunder regarding the patent prosecution—specifically, on
Flavour Blaster’s resemblance to certain prior art and the extent of Jetchill’s awareness that such
prior art existed at the time of its design patent, (id. at 112–117), and utility patent applications,
(id. at 121–123). The Court observed that Mr. Flunder’s personal familiarity with the patent
prosecution was limited. (Id. at 117).
Because issues not raised in the briefing had arisen during the evidentiary hearing—chiefly
that of Plaintiff’s delay in pursuing this injunction—the Court permitted the Parties to waive oral
closing argument and submit closing briefs encapsulating their positions instead. The Parties’
closing briefs, (ECF Nos. 78, 80), largely reiterate their positions on the merits of each claim. The
Parties also address delay. In tandem with Plaintiff’s filing of its closing brief, (ECF No. 80),
Plaintiff moved the Court to take judicial notice of the record of a lawsuit initiated in November
2024 in the Northern District of Illinois. (ECF No. 79). In that lawsuit, Plaintiff had asserted
trademark and design patent infringement claims against 90 different defendants, including
Defendant here. (ECF No. 80-2 at 1–2). The action was dismissed in March 2025 for improper
joinder of parties under Federal Rule of Civil Procedure 19. (ECF No. 80-7). Plaintiff claims that
this litigation supplies an additional temporal link—as yet unmentioned in the Parties’ briefing or
at the hearing—resolving the Court’s concerns with Plaintiff’s delay in bringing its trademark,
design patent, and utility patent claims against Defendant here.
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II. 	LEGAL STANDARD
In order to obtain a preliminary injunction, a plaintiff must demonstrate: (1) a substantial
likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not
granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-
movant; and (4) that granting the relief would not be adverse to the public interest. Scott v. Roberts,
612 F.3d 1279, 1290 (11th Cir. 2010); see Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,
1225–26 (11th Cir. 2005)). A movant must “clearly establish” all four of the above-listed
prerequisites. Café 207, Inc. v. St. Johns Cnty., 989 F.2d 1136, 1137 (11th Cir. 1993). “Injunctive
relief may not be granted unless the plaintiff establishes the substantial likelihood of success
criterion.” Schiavo, 403 F.3d at 1226 (citations omitted); see Grupo Mexicano de Desarrollo v. All.
Bond Fund, Inc., 527 U.S. 308, 339 (1999) (Ginsburg, J., concurring) (“Plaintiffs with questionable
claims would not meet the likelihood of success criterion.”).
A preliminary injunction is “an extraordinary and drastic remedy” which a court should
grant only when the movant clearly carries the burden of persuasion as to each of the four
prerequisites. See Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205,
1210 (11th Cir. 2003); ACLU v. Miami-Dade Cnty., 557 F.3d 1177, 1198 (11th Cir. 2009) (internal
citations omitted). Put otherwise, injunctive relief is never granted as of right but rather upon a
clear showing of entitlement. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
III. 	DISCUSSION
The Parties dispute whether entry of a preliminary injunction is warranted on Plaintiff’s
three core claims: Trademark Infringement under the Lanham Act, 15 U.S.C. § 1114; Design Patent
Infringement under 35 U.S.C. § 271; and Utility Patent Infringement under 35 U.S.C. § 271. See
infra, Parts III(C)(1)–(3). Plaintiff moves pursuant to 15 U.S.C. § 1116, Federal Rule of Civil
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Procedure 65, 35 U.S.C. §§ 281, 283, and the All Writs Act, 28 U.S.C. § 1651(a). (ECF No. 21 at
1). Before considering whether Plaintiff has met its burden under the four-factor test, the
undersigned evaluates the issues of personal jurisdiction and delay.
A. 	Defendant Has Waived Any Objection to the Court’s Exercise of Personal
Jurisdiction
Courts in the Eleventh Circuit may consider jurisdictional issues in analyzing a Rule 65
movant’s likelihood of success on the merits of their claims. See, e.g., Liberty Media Holdings,
LLC v. Letyagin, No. 11-62107-CV, 2011 WL 13217328, at *3 (S.D. Fla. Dec. 14, 2011) (denying
motion for TRO where Plaintiff failed to show “that Defendant’s conduct can, in line with the
Constitution, subject it to jurisdiction in this forum”). Plaintiff avers in its Motion that the Court
possesses personal jurisdiction over Defendant. (ECF No. 21 at 2–5). In addition to placing the
Court’s personal jurisdiction in issue by its pleadings and Motion, at the October 23 hearing,
counsel for Plaintiff gave testimony to substantiate Plaintiff’s proffer that he had successfully
executed a “test purchase” of Defendant’s Aroma Blaster product, and successfully had the product
shipped to Florida, prior to bringing suit. See (ECF No. 77 at 127–28). Plaintiff relies on this test
purchase, and other allegations premised on information and belief, to demonstrate that Defendant
has in fact sold its allegedly infringing products into the state of Florida.
Without deciding the sufficiency of the facts substantiating Plaintiff’s assertion of personal
jurisdiction, the undersigned concludes that Defendant has waived personal jurisdiction by
appearing in this litigation, arguing the merits of its position, and failing to object to personal
jurisdiction in its responsive papers. “[A] party’s right to dispute personal jurisdiction is waived if
the party fails to assert that objection in its first Rule 12 motion, other responsive pleading or
general appearance.” Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1218 n.21 (11th Cir.
2009) (citing Fed. R. Civ. P. 12(h)); Guarantee Ins. Co. v. Brand Mgmt. Serv., Inc., No. 12-61670,
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2012 WL 12837296, at *2–3 (S.D. Fla. Dec. 11, 2012) (“The filing of a preliminary-injunction
motion . . . can require a party to raise its process-based defenses prior to filing a Rule 12(b)
motion.”) (citations omitted); see also Am. Airlines, Inc. v. Spada, No. 23-21844-CIV, 2024 WL
2797379, at *3–4 (S.D. Fla. May 1, 2024) (collecting cases).
Defendant entered this litigation after receiving notice of the Court’s issuance of an ex parte
TRO against it on September 4. (ECF No. 13). Upon entry, Defendant sought to dissolve the TRO
on merits-based grounds. (ECF No. 22). Concurrently, Defendant opposed extension of the TRO
and Plaintiff’s request for a preliminary injunction. (ECF No. 25). Counsel for Defendant offered
no rebuttal to Plaintiff’s counsel’s jurisdictional testimony at the October 23 evidentiary hearing.
See (ECF No. 77 at 128).
Defendant has summarily denied Plaintiff’s allegations regarding personal jurisdiction in
its Answer. Compare (ECF No. 1 ¶¶ 6–16), to (ECF No. 65 at 2). Defendant filed the Answer on
October 20, 2025, approximately a month and a half after it made its appearance in this action,
(ECF No. 13), after the undersigned had issued a report and recommendation on the Parties dueling
motions to dissolve or extend the TRO entered against Defendant, (ECF No. 52), and after briefing
on Plaintiff’s Motion for Preliminary Injunction had ripened, (ECF No. 56). The Answer
summarily denies Plaintiff’s allegations regarding personal jurisdiction, (ECF No. 65 at 2), but
neither levies argument nor advances authority calling the Court’s personal jurisdiction into doubt.
Based on the foregoing, the undersigned finds that Defendant has waived the right to object to the
Court’s personal jurisdiction; Defendant is subject to the Court’s personal jurisdiction by virtue of
such waiver.
Where a party has waived the defense of personal jurisdiction, district courts need not
undertake a sua sponte personal jurisdiction analysis before ruling on a motion for preliminary
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injunction. See Muldrow v. EZ E-File Tax Preparers, Inc., No. 22-12108, 2023 WL 3476416, at
*3–4 (11th Cir. May 16, 2023) (affirming district court denial of motion to vacate entry of
preliminary injunction where defendant waived defense of lack of personal jurisdiction and district
court ruled solely on the issue of waiver); cf. Celgard, LLC v. LG Chem, Ltd., 624 F. App’x 748,
751 (Fed. Cir. 2015) (holding, where issue had been raised, that district court “legally erred by
failing to consider whether it had personal jurisdiction over [the defendant] before granting [a]
preliminary injunction”). Because the undersigned concludes that the Court possesses personal
jurisdiction over Defendant through waiver, the Court need not further evaluate Plaintiff’s primary
theory of personal jurisdiction in this matter. See Muldrow, 2023 WL 3476146, at *3–4.
B. 	Plaintiff’s Proffer of the Prior Litigation in the Northern District of Illinois
Alleviates the Court’s Concerns, in Part
At the hearing, I advised the Parties of my concern that Plaintiff may have unduly delayed
bringing this lawsuit against Defendant. (ECF No. 77 at 130). This concern arose from the
testimony of Plaintiff’s witness, Mr. Flunder, who testified that Jetchill first learned of alleged
infringement 	of 	its 	“FLAVOUR 	BLASTER” 	trademark, 	including 	Defendant’s 	alleged
infringement, “sometime in 2023.” (Id. at 110). Plaintiff procured its design and utility patents in
April 2024. (Id.). Plaintiff appeared to have filed this action over two years after its proffered
discovery of trademark infringement, and over a year after its patent registrations, in late July
2025. (ECF No. 1); (ECF No. 77 at 130). When I stated my concerns regarding delay, Mr. Flunder
testified that Jetchill had sought to remedy suspected infringements of its intellectual property
through the Amazon Grand Registry in 2024, before deciding to pursue relief through the courts.
(ECF No. 77 at 110, 133).
In part because I had advised the Parties of my concerns regarding an issue that had not
been briefed by the Parties, I provided the Parties with a deadline of November 3, 2025 to submit
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closing briefs in which they could conclude the arguments made at the hearing and advance
argument on the issue of delay. (Id. at 143–44).
Plaintiff timely submitted its Closing Argument Brief on November 3. (ECF No. 80).
Plaintiff maintained that it had made efforts to “use its Amazon agent to obtain cessation of the
infringement short of filing suit.” (Id. at 3). Plaintiff additionally notified the Court of a prior
lawsuit in the United States District Court for the Northern District of Illinois, captioned C.J. LTD
v. The Individuals, Partnerships, and Unincorporated Associations Identified on Schedule “A”,
Case No. 1:24-cv-12293 (N.D. Ill. Nov. 27, 2024) (the “Illinois Action”). There, Plaintiff sued 90
alleged infringers of its products for trademark infringement, including Defendant here. That case
was filed in November 2024, (ECF No. 80-2 at 31), and was dismissed, for improper joinder of
defendants, in March 2025, (ECF No. 80-7 at 5). After dismissal, Plaintiff avers, Plaintiff “re-
investigated the case to capture new evidence of Explonova’s infringement, determine the addition
of the utility patent claim, and file this case in the Southern District of Florida a few months later
on July 28, 2025.” (ECF No. 80 at 2); see also (ECF No. 80-1 at 4) (following dismissal,
“Plaintiff’s counsel gathered new evidence,” “considered the addition of a utility patent
infringement claim,” made test purchases of Defendant’s product on July 17, and, “[u]pon receipt
and inspection of the item,” concluded “that Defendant[] [was] in fact infringing Plaintiff’s utility
patent”).
Plaintiff asks, in its Closing Brief and by separate motion, that the Court take judicial notice
of the record of the Illinois action. (ECF Nos. 79, 80, 80-1). Plaintiff argues that evidence of its
effort to prosecute the unsuccessful Illinois action, taken together with Mr. Flunder’s testimony,
mitigates the undersigned’s concern with Jetchill’s apparent delay in bringing this action by filling
in the temporal gap separating Plaintiff’s initial discovery of alleged infringers from the date on
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which the present action was filed. (ECF No. 80 at 3). Defendant has not responded to Plaintiff’s
request.
“A district court may take judicial notice of public records within its files relating to the
particular case before it or other related cases.” Cash Inn of Dade, Inc. v. Metro. Dade Cnty., 938
F.2d 1239, 1243 (11th Cir. 1991); see also Lockett v. Experian Info. Sols., Inc., No. 20-CV-1427,
2021 WL 4815898, at *1, *12 n.9 (N.D. Ga. Jun. 30, 2021) (“The Court may take judicial notice
of public records, such as court filings on public dockets.”). The undersigned takes judicial notice
of the documents for the limited purpose of establishing the dates on which the Illinois action was
filed and later dismissed, as well as the fact that Plaintiff levied trademark and design patent
infringement claims relating to suspected infringement of its “FLAVOUR BLASTER” mark and
design patent. See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (“[A] court may take
judicial notice of a document filed in another court ‘not for the truth of the matters asserted in the
other litigation, but rather to establish the fact of such litigation and related filings.”) (internal
quotation marks and citations omitted).
Pursuit of the Illinois action addresses the Court’s concerns that Plaintiff unduly delayed
in bringing its trademark and design patent infringement claims, to a degree. Consideration of the
Illinois action does not, however, assuage my concerns that Plaintiff delayed in bringing its utility
patent claim. Indeed, that Plaintiff filed, in November 2024, an action demonstrating that it knew
Defendant was selling an alleged counterfeit of its aroma gun raises questions about why Plaintiff
waited—concededly until mid-July 2025, (ECF No. 80-1 at 4)—to investigate and conclude that
it could levy a utility patent claim as well. Moreover, Mr. Flunder testified that it had learned of
ExploNova’s market presence from customers “sometime in 2023.” (ECF No. 77 at 110). On
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balance, I recognize that the Illinois action at least shows that Plaintiff was actively pursuing relief
in federal court for the core of the misconduct it attacks in this Action.
C. 	Plaintiff’s Likelihood of Success on its Trademark, Design Patent, and Utility
Patent Claims
1. 	Plaintiff Has Not Met Its Burden to Show a Substantial Likelihood of
Success on Its Trademark Claim
Plaintiff argues that it has met its burden to demonstrate (1) its ownership of the
“FLAVOUR BLASTER” trademark at issue; (2) Defendant’s use of the trademark; and (3) that
Defendant’s use of the trademark is likely to cause confusion, mistake, or deception as to the
source, affiliation, or sponsorship of Defendant’s goods. (ECF No. 21 at 6). Plaintiff asserts that
the first element is met because its mark is registered with the USPTO on the Principal Register,
(ECF No. 5-7 ¶ 19), and has been continuously used. (ECF No. 21 at 6) (citing (ECF No. 5-7 ¶¶
20–26, 32)). The second element is met because Plaintiff has not licensed or authorized Defendant
to use its Mark, meaning any use by Defendant of the mark is without Plaintiff’s authorization.
(Id.) (citing (ECF No. 5-7 ¶¶ 43, 75)). As for the third factor, Plaintiff argues that Defendant’s use
of its mark is likely to cause confusion under the applicable seven-factor test. (ECF No. 21 at 6).
Defendant does not dispute Plaintiff’s satisfaction of the first or second elements. Rather,
Defendant argues that Plaintiff has not met its burden to demonstrate a likelihood of confusion
under the applicable seven factor test, primarily because (a) Defendant’s use of the descriptive
term “AROMA BLASTER” is not confusingly similar to Plaintiff’s “FLAVOUR BLASTER”
mark, and instead constitutes “fair use” pursuant to 15 U.S.C. § 1115(b)(4), (ECF No. 51 at 5–7);
and 	(b) 	Defendant 	has 	mitigated 	any 	confusion 	shown 	by 	prominently 	displaying 	the
“EXPLONOVA” brand name on its products and product packaging, (id. at 7). “Whether in
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product packaging or listings,” the descriptive term “Aroma Blaster” is “always used together with
“Explonova[.]” (Id. at 5).
The likelihood of confusion is established under a seven-factor test. See Ross Bicycles, Inc.
v. Cycles USA, Inc., 765 F.2d 1502, 1506 (11th Cir. 1985). These factors are: (1) the strength of
the mark; (2) the similarity of marks; (3) the similarity of the goods; (4) similarity of the sales
methods; (5) the similarity of advertising media; (6) Defendant’s intent; and (7) evidence of actual
confusion. See Safeway Store, Inc. v. Safeway Discount Drugs, Inc., 675 F.2d 1160, 1164 (11th Cir.
1982). The seven factors are weighed and balanced; no single factor is dispositive. Id. Below, the
undersigned first evaluates the Parties’ presentations under the seven-factor test, then considers
Defendant’s arguments that any likelihood of confusion is mitigated such that injunctive relief is
unwarranted.
i. 	Strength of the Mark
Plaintiff asserts that its “FLAVOUR BLASTER” mark is a strong mark. (ECF No. 21 at 7)
(citing ECF No. 5-7 ¶¶ 17–19, 22, 23, 26–28, 31, 32–34, 37). Plaintiff adds that the mark has
“acquired secondary meaning resulting from Plaintiff’s extensive [marketing] efforts” regarding
the mark, and that, as a result, the mark “enjoys widespread recognition in the minds of consumers.
(Id.) (citing (ECF No. 5-7 ¶ 34)).
The Motion cites paragraphs of the Flunder Declaration describing Plaintiff’s ownership
of its “FLAVOUR BLASTER” trademark, (id. ¶¶ 17–19), stating that the mark has been used in
interstate commerce to distinguish Plaintiff’s “high-quality goods” and “is a symbol of Plaintiff’s
quality goods, reputation and goodwill,” (id. ¶¶ 22, 23), confirming that the mark is exclusive to
Plaintiff and displayed extensively on Plaintiff’s products, (id. ¶ 26), stating that Plaintiff has
incurred hundreds of thousands in expense to advertise and market its aroma guns, bubble
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mixtures, and cocktail aromas, (id. ¶¶ 26–27, 31, 32, 37), claiming that its sales in recent years
have “exceeded several millions of dollars within the United States,” (id. ¶ 33), and claiming that
“members of the consuming public readily identify” Plaintiff’s trademarked goods as being of high
quality, (id. ¶ 34).
Based on the evidence and testimony advanced at the evidentiary hearing, the FLAVOUR
BLASTER mark appears to qualify as a descriptive mark entitled to intermediate weight. A
descriptive mark “identifies a characteristic or quality of an article or service as, for example, its
color, odor, function, dimensions, or ingredients.” Hard Candy LLC v. Anastasia Beverly Hills,
Inc., 921 F.3d 1343, 1363 (11th Cir. 2019) (quoting Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178,
1185 (5th Cir. 1980)) (marks omitted). While Plaintiff advanced evidence demonstrating that its
product has had success within the hospitality industry, the product Plaintiff sells is known as an
aroma gun. See, e.g., (ECF No. 77 at 99). The “FLAVOUR BLASTER” mark describes the Flavour
Blaster’s function and dimensions. That is, the product literally blasts flavored vapor into cocktails
and other mixed drinks, creating an aesthetically pleasing edible bubble. The product’s designation
as a “blaster” bears upon its function and its dimensions: it resembles a theatrical, “Sci-Fi”
handgun. (Id. at 62).
Nor has Plaintiff clearly shown that consumers identify the Flavour Blaster aroma gun with
Jetchill itself. If a descriptive mark acquires “secondary meaning,” then the descriptive mark is
strong enough to merit protection under the Lanham Act. FCOA LLC v. Foremost Title & Escrow
Servs LLC, 57 F.4th 939, 949 (11th Cir. 2023) (citing Royal Palm Props., LLC v. Pink Palm Props.,
LLC, 950 F.3d 776, 782–83 (11th Cir. 2020)). “[A] mark has secondary meaning when consumers
view the mark as synonymous with the mark holder’s goods or services.” Id. (“For example,
American Airlines could theoretically refer to any airline based in North or South America. But
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with the mark holder’s time and effort, American Airlines now calls to mind a specific airline
through its secondary meaning.”).
Jetchill has undisputedly invested time, effort, and resources into building the FLAVOUR
BLASTER into a prominent product. At the hearing, Mr. Flunder testified extensively as to
Jetchill’s use of social media, including “Facebook, Instagram, TikTok, [and] YouTube channels
where [it] publish[es] content and interact[s] with [its] customers.” (ECF No. 77 at 32). Mr. Flunder
spoke to its FLAVOUR BLASTER-branded YouTube page,” (id. at 	33), its FLAVOUR
BLASTER-branded Instagram page, (id. at 35), its FLAVOUR BLASTER-branded Facebook
page, (id. at 38), and its FLAVOUR BLASTER-branded TikTok page, (id. at 40). Plaintiff uses its
social media presence to advertise the Flavour Blaster—including through influencer and celebrity
sponsorships—and to educate consumers. Mr. Flunder estimated that Plaintiff expects to spend
approximately £500,000 on paid advertising this year. (Id. at 42) (noting that, “in 2022, before
[Plaintiff] saw the copycats, we were spending half that amount. So we’ve really had to ramp up
our ‘paid out spend’ to make sure that our brand is at the forefront of customers’ minds”).
Notwithstanding 	Plaintiff’s 	commitment 	to 	effectively 	marketing 	its 	product, 	and
testimony as to the product’s success, the evidence submitted at the hearing does not establish that
the Flavour Blaster aroma gun is recognized as the definitive aroma gun. See, e.g., (ECF No. 73-
10) (Instagram page describing the Flavour Blaster as the “OG Aroma Gun [].”). Mr. Flunder’s
testimony that “we believe that it is a very strong brand,” (ECF No. 77 at 33), is of limited probative
value and does not confer secondary meaning on Jetchill’s product.
Nor does Plaintiff’s evidence of a strong social media presence demonstrate that consumers
identify the Flavour Blaster with Jetchill itself. With the exception of its YouTube page, (ECF No.
73-9)—its least trafficked social media page, which holds itself out as “[t]he Official Jetchill &
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Flavour Blaster YouTube Channel”—Plaintiff’s submissions of its several social media pages
demonstrate a concentration on the Flavour Blaster aroma gun product itself. Plaintiff’s Instagram
page is titled “theflavourblaster,” (ECF No. 73-10); its Facebook page is titled “Flavour Blaster,”
(ECF No. 73-12); and its TikTok page is titled “flavourblaster,” (ECF No. 73-16). The undersigned
concludes that Plaintiff’s evidentiary proffer fails to demonstrate the strength of the “FLAVOUR
BLASTER” mark through a showing that the mark is source-identifying and, therefore, entitled to
increased protection.
At this early stage of the proceedings, Plaintiff has not met its evidentiary burden to show
that “FLAVOUR BLASTER” constitutes a strong, source-identifying mark in the league of a
“Verizon” telecommunications or “Apple” computers. See Engineered Tax Servs., Inc. v. Scarpello
Consulting, Inc., 958 F.3d 1323, 1327–28 (11th Cir. 2020) (quoting and discussing Royal Palm
Props., 950 F.3d at 783). Based on Plaintiff’s evidentiary showing, and in its present posture, the
undersigned concludes that the mark is descriptive in nature and entitled to intermediate weight.
ii. 	Similarity of Marks
Plaintiff acknowledges that the likelihood of confusion is greater when an infringer uses
an exact trademark, but asserts that Defendant is using a “confusingly similar mark, ‘AROMA
BLASTER,’ to the FLAVOUR BLASTER Mark.” (ECF No. 21 at 7). As support, Plaintiff asks
the Court to compare its own Trademark Registration, (ECF Nos. 1-1, 73-1), to screen captures of
Defendant’s products in the Flunder Declaration, (ECF No. 5-7).
While Defendant does not respond to Plaintiff’s articulation of the seven-factor analysis,
Defendant does emphasize that its use of the term “AROMA BLASTER” is not identical to
Plaintiff’s “FLAVOUR BLASTER” mark and is descriptive of its own aroma gun.
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Based on the evidence adduced at the hearing, the undersigned concludes that Plaintiff has
not met its burden to show that the marks are confusingly similar. Plaintiff does show some basis
for its claim that the marks marshal similar language—both products are designated “[Descriptor]
Blaster.” As noted above, however, that similar language is descriptive in nature.
Plaintiff levies a scientific and linguistic argument linking “flavor” to “aroma.” (ECF No.
21 at 6). Plaintiff argues that “[f]lavor refers to the overall perception of taste, which—as
established in food science and by regulatory authorities—is largely determined by [] aroma (sense
of smell).” In turn, “[r]esearch demonstrates that up to 80% or more of what people perceive as
‘flavor’ actually comes from the aroma.” (Id.). Plaintiff further proffers that, “[i]n the context of
product marketing . . . consumers generally understand that flavor and aroma are interrelated.” (Id.
at 6–7).
Plaintiff has not substantiated these assertions with evidence suggesting that reasonable
consumers have or would intermingle the descriptive terms “FLAVOUR” and “AROMA” and
conclude, based on such confusion, that two products bearing the respective names originated from
the same source. Additionally, the undersigned finds persuasive Defendant’s argument, relayed
below, that the prominent display of the products’ respective brand logos on certain of the products
themselves, their packaging, and their web marketplace postings, mitigates what confusion may
result 	from 	the facial 	similarity 	of 	“FLAVOUR 	BLASTER” and 	“AROMA BLASTER”
considered alongside each other. (ECF No. 77); see (ECF Nos. 73-13, 73-15, 73-18) (Defendant’s
product kit); (ECF No. 73-8) (Plaintiff’s product kit).
iii. 	Similarity of Goods
Plaintiff reiterates its claim that Defendant is “selling counterfeit Jetchill products using
marks identical or confusingly similar to the FLAVOUR BLASTER Mark.” (ECF No. 21 at 7). In
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support, Plaintiff again directs the Court to compare its own Trademark Registration, (ECF No. 1-
1), with screen captures of Defendant’s products contained in the Flunder Declaration, (ECF No.
5-7). Plaintiff adds that, use of a similar trademark aside, Defendants’ products and Plaintiff’s
goods are indistinguishable. (ECF No. 21 at 7) (citing (ECF No. 5-7 ¶ 58)).
The aroma guns at issue here are doubtless similar. Both Parties’ products fulfill the same
function and share the same overall design. The undersigned concludes that this factor favors the
Plaintiff. The products’ resemblance dovetails with the undersigned’s analysis of Plaintiff’s
likelihood of success on the merits of its design patent claim below.
iv. 	Similarity of Sales Methods
Plaintiff emphasizes that both it and Defendant sell their products using “at least one of the
same marketing channels, the Internet,” adding that the Parties do so in the same geographical
distribution areas within the United States, including the Southern District of Florida. (ECF No.
21 at 7) (citing (ECF No. 5-7 ¶¶ 9, 11, 32, 50, 51, 57, 79)). Further, Plaintiff notes that the Parties’
sales channels directly overlap because they both sell their products through Amazon. (Id.) (citing
(ECF No. 5-7 ¶¶ 9, 50)).
The cited paragraphs of the Flunder Declaration state that Jetchill sells its products through
Amazon and its own website, as well as other authorized distributors, (ECF No. 5-7 ¶ 9), that it
sells its products in Florida, (id. ¶ 11), that it has “extensively used, advertised, and promoted the
FLAVOUR BLASTER Mark in the United States,” (id. ¶ 32), that its investigations of Defendant
revealed that they are using Shopify and Amazon to sell their products, (Id. ¶ 50), Plaintiff’s
identification of Defendant’s seller identification names through Shopify and Amazon, (id. ¶ 51),
that Plaintiff analyzed Defendant’s webpages on Shopify and Amazon and determined that
counterfeits of its products were being sold, (id. ¶ 57), and that Plaintiff executed test purchases of
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Defendant’s goods through “the e-commerce store pertaining to each Defendant, (id. ¶ 79).
Defendant does not contest that the Parties sell through the same online channels.
The undersigned concludes that this factor favors Plaintiff. Both Parties sell through
proprietary webstores as well as major e-commerce platforms. However, because the shared
channels through which the Parties market their products for sale (i.e., Amazon and other large
webstores) are ubiquitous, I accord this factor only moderate weight.
v. 	Similarity of Advertising Media
Plaintiff’s sole argument on this factor is that “both parties advertise online.” (ECF No. 21
at 7–8) (citing (ECF No. 1 ¶¶ 41, 46, 60, 62, 67, 108); (ECF No. 5-7 ¶¶ 9, 11, 32, 57, 60, 77)).
The cited paragraphs of the Flunder Declaration state that Jetchill sells its products through
Amazon and its own website, as well as other authorized distributors, (ECF No. 5-7 ¶ 9), that it
sells its products in Florida, (id. ¶ 11), that it has “extensively used, advertised, and promoted the
FLAVOUR BLASTER Mark in the United States,” (id. ¶ 32), that it analyzed Defendant’s
webpages on Shopify and Amazon and determined that counterfeits of its products were being
sold, (Id. ¶ 57), a summary of its trademark infringement claim, (id. ¶ 60), and that it “continues
to have difficulty selling its authentic products online because of the price pressure and price
erosion” caused by Defendant’s alleged illegal activity, (id. ¶ 77).
At 	the 	hearing, 	Plaintiff 	offered 	neither 	testimony 	nor 	documentation 	regarding
Defendant’s own mode or scale of advertisement. The Parties have not submitted evidence on
Defendant’s use of advertising media, beyond the undisputed fact that it lists its products on
Amazon. Plaintiff, in contrast, demonstrated at the hearing that it spends significant sums on
extensive advertising campaigns via social media and at trade shows. Whereas Plaintiff’s social
media profile includes celebrity cameos, including a TikTok video featuring Taylor Swift and
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promoting “th[e] Bubble cocktail that Taylor Swift was drinking,” (ECF No. 73-16), Plaintiff has
not demonstrated that Defendant avails itself of advertising media of similar type, scope, or degree.
Based on this showing, the undersigned cannot conclude that the fifth confusion factor—similarity
of advertising media—tilts in Plaintiff’s favor.
vi. 	Defendant’s Intent
Plaintiff’s briefing on this factor lacks citation to any evidence. Instead, Plaintiff states its
conclusion that Defendant infringed and adopted Plaintiff’s mark “with the intent of obtaining
benefit from the plaintiff’s business reputation.” (ECF No. 21 at 8) (citation omitted). Plaintiff
states that Defendant’s “clear-cut copying and infringement here to sell counterfeit goods” give
rise to an inference that they intended to benefit from Plaintiff’s reputation and thereby cause
Plaintiff reputational and competitive harm. (Id.) (citation omitted).
At the hearing, Plaintiff proffered evidence of images of Google search results for the
“FLAVOUR BLASTER” and “AROMA BLASTER.” The evidence was not ultimately admitted.
Mr. Flunder testified based on these images that search returns occasionally mismatched aroma
gun products, such that a search return featuring an image of one product would contain a hyperlink
to a webpage offering the other product for sale. (ECF No. 77 at 15–16). Or, for example, an aroma
gun would be designated, in text, as a Flavour Blaster, but the attendant image would be of
“someone else’s product.” (Id.). Plaintiff’s counsel proffered, in response to the undersigned’s
query, that Defendant would have exercised some control over these results and the deficiencies
therein. (Id. at 15).
This factor favors Defendant. Plaintiff’s counsel’s proffer, even if taken as true, is
speculative: it requires the undersigned to infer an intent to infringe from the fact that Defendant
is to some degree capable of influencing Google search results for its products. Absent an
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additional evidentiary proffer substantiating Mr. Flunder’s assertion, the undersigned cannot find
Plaintiff’s counsel’s or Mr. Flunder’s testimony sufficient to support a finding that Defendant has
consciously manipulated Google search results and therefore demonstrated an intent to infringe
Plaintiff’s mark.
vii. 	Evidence of Actual Confusion
Plaintiff makes no claim of evidence of actual confusion in its briefing. Nor do Plaintiff’s
supportive materials set forth that actual confusion has occurred. Plaintiff instead argues that it
“does not need to prove the likelihood of confusion” with such evidence. (Id.) (citing Frehling
Enters. v. Int’l Select Grp., Inc., 192 F.3d 1330, 1340 (11th Cir. 1999)) (quoted for the proposition
that “such evidence is not a prerequisite, and thus it is up to individual courts to assess this factor
in light of the particular facts of each case”).
Nevertheless, at the hearing, Plaintiff advanced one exhibit apparently demonstrating that
actual confusion has occurred: an email from a business customer who contacted Jetchill about
procuring a replacement part for its “Explonova Aroma Blaster.” Plaintiff advanced the email to
show “the irreparable harm [Plaintiff’s] brand is suffering.” (ECF No. 77 at 73–75). The Court
admitted the email into evidence to show the fact that the communication was made. (Id. at 75).
(ECF No. 73-14). In its Closing Brief, Defendant argues that, “[f]ar from demonstrating confusion,
this email actually highlights the customer’s awareness of [Defendant’s] brand: the sender
explicitly references ‘[the] Explonova Aroma Blaster” and contacts Plaintiff’s email address []
only after failing to find the part on Defendant’s website.” (ECF No. 78 at 3). Defense counsel
concludes, from that interpretation, that “[o]ne ambiguous email does not constitute substantial
evidence of actual confusion[.]” (Id.).
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The undersigned agrees with Defendant on this front. Plaintiff’s isolated email exhibit does
not suffice to demonstrate actual confusion at this early stage of the proceedings. To be entitled to
extraordinary, preliminary injunctive relief, Plaintiff must meet its burden to clearly show a
likelihood of success on its infringement claim. Plaintiff’s Exhibit No. 13 arguably corroborates
Defense counsel’s suggestion that customers recognize the Aroma Blaster as Explonova’s, not
Jetchill’s, product. See (ECF No. 73-13 at 2) (reflecting customer review of the Aroma Blaster that
refers to the reviewing customer’s “first experience with the ExploNova brand”).
To the extent that Plaintiff considers the Google search results as indicative of actual
confusion, it has likewise not substantiated its proffer that erroneous search returns have resulted
in actual confusion among its consumers.
* 	* 	*
As indicated above, Defendant’s first argument against Plaintiff’s trademark claim is that
its use of the words “flavour/flavor” and “blaster” constitutes descriptive fair use. (ECF No. 51 at
5–7). Defendant asserts that it is free to use a trademarked “name, term, or device” because it “can
demonstrate that such use ‘is descriptive of and used fairly and in good faith only to describe the
goods or services of [Defendant].’” (Id. at 6) (citing KP Permanent Make-Up, Inc. v. Lasting
Impression I, Inc., 543 U.S. 111, 124 (2004) (cited for the proposition that a party asserting fair
use under 15 U.S.C. § 1115(b)(4) “has no independent burden to negate any likelihood in raising
the affirmative defense that a term is used descriptively, not as a mark, fairly, and in good faith”)).
The core of Defendant’s argument is that both the words “flavour” and “blaster” are
descriptive in nature when applied to the product at issue: a bubble gun that produces bubbles
filled with fragrant smoke. (ECF No. 51 at 6). Defendant accordingly relies on Dictionary
definitions of “flavour” and “blaster.” (Id. at 6–7). Further, Defendant contends that its use of two
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spellings: the British “flavour” and the American “flavor” in describing their products “indicates
that Defendant has no intention of using “flavour/flavor” as a source-identifying mark.” (Id.).
In its Reply, Plaintiff counters Defendant’s fair use defense in its own linguistics-based
terms. (ECF No. 56 at 4–5). Plaintiff makes scientific claims about the sensory overlap of flavors
and aromas, concluding without citing to any factual or legal authority that “[d]evices described
as ‘blasters’ for either flavor or aroma will likely deliver related sensory effects,” and that
“distinction between the claimed functions of ‘flavor’ and ‘aroma’ blasters” is therefore blurred.
(Id. at 6–7). Plaintiff contends that because both Plaintiff’s and Defendant’s products utilize the
format “[Descriptive Term] BLASTER,” and because humans’ senses of taste and smell overlap,
the risk of confusion for consumers searching or referring to these products is heightened. (Id. at
4). Finally, Plaintiff argues that Defendant’s fair use defense is unavailing because Defendant’s use
of the British English spelling of “flavour,” and inclusion of the descriptive term “Blaster” indicate
an intent to mimic Plaintiff’s mark.
Defendant’s second defense follows from the first: Defendant contends that when
Explonova does use the descriptive words “flavour/flavor” or “blaster,” their “registered trademark
‘Explonova’ always appears in a more prominent manner.” (Id. at 7). In its closing brief, Defendant
renews this argument with reference to exhibits admitted at the October 23 hearing. (ECF No. 78
at 2–3) (“Defendants’ products, as shown in [(ECF No. 73-15)] (screenshots of the Explonova
Amazon storefront), prominently feature the distinctive “Explonova” mark—with “E” and “N”
capitalized in bold red lettering—front and center. This clear source identifier appears repeatedly:
in the logo, product titles, and descriptions.”).
The undersigned finds persuasive Defendant’s second defense, that the prominent display
of its brand name and logo mitigates Plaintiff’s showing of a likelihood of confusion. Accordingly,
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I do not reach Defendant’s fair-use defense3 and instead find that Plaintiff has failed to meet its
high burden to demonstrate a likelihood of success on the merits.
In the trademark infringement context, “a distinctive logo’s application can . . . be
significant evidence that there will be no consumer confusion as to a product’s source, and
therefore no infringement.” Columbia Sportswear N. Am., Inc. v. Seirus Innovative Accessories,
80 F.4th 1363, 1382–83 (Fed. Cir. 2023) (collecting cases); Grubhub Inc. v. Kroger Co., No. 21-
cv-05312, 2022 WL 2774986, at *4 (N.D. Ill. May 25, 2025) (“It is well established that prominent
display of different brand names with marks reduces the likelihood of confusion, ‘even where . . .
the marks are otherwise similar.’”) (quoting Ziebart Int’l Corp. v. After Mkt. Assocs., 802 F.2d 220,
227 (7th Cir. 1986)), aff’d, 80 F.4th 835 (7th Cir. 2023); see also Guantanamera Cigars Co. v.
SMCI Holding, Inc., No. 21-cv-21714, 2023 WL 3781628, at *7 (S.D. Fla. Jun. 2, 2023) (finding
that Plaintiff failed to establish a likelihood of confusion where, inter alia, alleged infringer’s
conspicuous and repeated use of its brand name “strongly mitigate[d] against confusion as to the
source of the goods”). As the Eleventh Circuit has explained, “[i]f a trademark operates in a
crowded field of ‘similar marks on similar goods or services,’ slight differences in names may be
meaningful because consumers ‘will not likely be confused between any two of the crowd and
may have learned to carefully pick out one from the other.’” Fla. Int’l Univ. Bd. Of Trustees v. Fla.
Nat’l Univ., Inc., 830 F.3d 1242, 1260 (11th Cir. 2016) (quotation omitted). Granted, two marks
need not be identical to support a finding of infringement; “the key question remains whether the
marks are sufficiently similar ‘to deceive the public.’” Id; see Vital Pharms., Inc. v. Monster Energy
Co., 553 F. Supp. 3d 1180, 1264–65 (S.D. Fla. Aug. 3, 2021) (finding “widespread confusion is
unlikely” where, “[s]tarting with the obvious, both drinks prominently display their names and
3 The undersigned does find the substance of Defendant’s fair-use defense probative in the analysis, as set forth above,
of the strength of Plaintiff’s “FLAVOUR BLASTER” mark.
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logos, and [one party’s] and [] logo look and sound nothing like [the other party’s] name and []
logo”).
Both parties prominently display their brand names and logos on their respective aroma
gun products. At the hearing, Defense counsel elicited acknowledgement from Mr. Flunder that
Plaintiff’s Flavour Blaster products bear Plaintiff’s stylized product logo, (ECF No. 77 at 92–93),4
whereas Defendant prominently displays its “EXPLONOVA” brand name and logo on its
packaging and product, (id. at 93). Plaintiff’s Exhibit No. 8 does indeed depict the prominent
display of Plaintiff’s marks and brand logo on its product kit. (ECF No. 73-8). Based on Plaintiff’s
evidence advanced at the hearing, which includes contrasting images of Defendant’s and its
webstore listings, (ECF Nos. 73-13, 73-15, 73-18), a consumer surveying aroma guns will
encounter images of the aroma guns alongside their packaging and, hence, with the products’
distinct brand names and logos in plain view. Defendant’s prominent display of its source, brand
name, and logo, mitigates the likelihood of confusion on these facts. See Guantanamera Cigars,
2023 WL 3781628, at *7.
Plaintiff’s claim of trademark infringement represents a close call. With Defendant’s
prominent display of its brand name and logo considered alongside the seven factors analyzed
above, the undersigned concludes that any confusion otherwise likely to arise from Defendant’s
marketing of the AROMA BLASTER is lessened. At this early stage in these proceedings, Plaintiff
has not met its evidentiary burden to show that Defendant’s product is likely to cause confusion.
Therefore, Plaintiff has not demonstrated likelihood of success on the merits of its trademark
infringement claim. Accordingly, with respect to that claim, the undersigned need not consider the
4 Earlier at the hearing, Mr. Flunder volunteered that the strength of the “FLAVOUR BLASTER” mark was supported
by the fact that “it’s clearly branded,” and “has got a logo on [it].” (ECF No. 77 at 33).
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remaining factors in the preliminary injunction test. See GeorgiaCarry.Org, Inc. v. U.S. Army
Corps of Eng'rs, 788 F.3d 1318, 1329 (11th Cir. 2015).
2. 	Plaintiff has Met its Burden to Demonstrate a Substantial Likelihood of
Success on the Merits of its Design Patent Claim
Plaintiff claims that Defendant’s aroma gun infringes its design patent under the “ordinary
observer test,” i.e., that “in the eye of an ordinary purchaser, giving such attention as a purchaser
usually gives, [Plaintiff’s and Defendant’s] two designs are so similar that the purchaser, familiar
with the prior art, would be deceived by the similarity between the claimed design and the accused
designs, inducing him to purchase one supposing it to be the other.” (ECF No. 21 at 8–9) (citing
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 684 (Fed. Cir. 2008) (en banc)). Plaintiff
argues that the ornamental designs of Plaintiff’s aroma gun and Defendant’s aroma gun, considered
as a whole, are deceptively similar to the ordinary observer. Plaintiff relies, again, on the Flunder
Declaration and attached screen capture exhibits therein. (ECF No. 21 at 9) (citing (ECF No. 5-7
¶ 56–58, Ex. 1); (ECF No. 1 Ex. 4)).
In its Response, Defendant notes that its product design holds a valid and enforceable U.S.
design patent and that Defendant has obtained a license for this patent. (ECF No. 51 at 7) (citing
Declaration of Rui Guo, (ECF No. 38-1 ¶ 7); (ECF No. 38-4)). Defendant further argues that the
ordinary observer comparison favors a finding of noninfringement. (ECF No. 51 at 8–11). In
contrast to Plaintiff’s assessment of the product as a whole, Defendant highlights discrete
differences between the two product designs: Differences in the products’ (a) upper body, (b)
handle design, and (c) base.
Plaintiff replies that Defendant misconstrues the ordinary observer test, which per Plaintiff
“‘requires the fact finder to “compar[e] similarities in overall designs, not similarities of
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ornamental features in isolation.”’ (ECF No. 56 at 10) (quoting Lanard Toys, Ltd. v. Dolgencorp
LLC, 958 F.3d 1337, 1343 (Fed. Cir. 2020)).
“Determining whether a design patent has been infringed is a two-part test: (1) the court
first construes the claim to determine its meaning and scope; [and] (2) the fact finder then compares
the properly construed claim to the accused design.” Acufloor, LLC v. Eventile, Inc., No. 21-cv-
802, 2022 WL 861575, at *3 (M.D. Fla. Mar. 23, 2022) (quoting Lanard Toys, 958 F.3d at 1341).
Regarding the first step of the test, the Parties do not affirmatively argue or request claim
construction. “A district court has no obligation to definitively construe claims at the preliminary
injunction stage.” Natera, Inc. v. NeoGenomics Lab’ys, Inc., 106 F.4th 1369, 1375 (Fed. Cir. 2024)
(citing Sofamor Danek Grp., Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1221 (Fed. Cir. 1996)
(holding that district court did not commit an abuse of discretion “by not engaging in explicit claim
construction before evaluating the likelihood of [patent] infringement”) (“This is undoubtedly true
here, where the parties did not present a claim construction dispute.”)); see also Ultimate
Combustion Co., Inc. v. Fuecotech, Inc., No. 12-60545-CV, 2013 WL 12091158, at *3 (S.D. Fla.
Nov. 4, 2013) ([A] trial court has no obligation to interpret [a] claim [] conclusively and finally
during a preliminary injunction proceeding . . . . [Rather], [a] trial court may exercise its discretion
to interpret the claims at a time when the parties have presented a full picture of the claimed
invention and prior art.”) (quoting Sofamor, 74 F.3d at 1221)); cf. Fusilamp, LLC v. Littelfuse, Inc.,
No. 10-20528-CIV, 2010 WL 3446913, at *3 (S.D. Fla. Aug. 31, 2010) (holding that while the
Court need not determine the scope of the patent claims conclusively at the preliminary injunction
stage, “a district court must ‘make an assessment of the persuasiveness of the challenger’s
evidence, recognizing that it is doing so without all evidence that may come out at trial’”) (citation
omitted).
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Absent any dispute over claim construction, the words of a claim “are generally given their
ordinary and customary meaning.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.
Cir. 1996). “[T]he ordinary and customary meaning of a claim term is the meaning that the term
would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as
of the effective filing date of the patent application.” Phillips v. AWH Corp., 415 F.3d 1303, 1313
(Fed. Cir. 2005).
The Parties agree that the “ordinary observer” test, as clarified by the Federal Circuit’s
decision in Egyptian Goddess, governs the Court’s analysis here. The Parties disagree as to how
that test proceeds. It is true that, under Lanard Toys, “the ‘ordinary observer’ test for design patent
infringement requires the fact finder to ‘compar[e] similarities in overall designs, not similarities
of ornamental features in isolation.’” See 958 F.3d at 1343. On the other hand, under Egyptian
Goddess, “the ordinary observer is deemed to view the differences between the patented design
and the accused product in the context of the prior art.” Egyptian Goddess, 543 F.3d at 676. This
is because when the differences between the claimed and accused design are viewed in such light,
“the attention of the hypothetical ordinary observer will be drawn to those aspects of the claimed
design that differ from the prior art.” Id. (“[W]hen the claimed design is close to the prior art
designs, small differences between the accused design and the claimed design are likely to be
important to the eye of the hypothetical ordinary observer.”); see also Delta T, LLC v. Dan’s Fan
City, Inc., No. 19-cv-1731, 2021 WL 2284134, at *3 (M.D. Fla. Jun. 4, 2021) (same) (quoting
Lanard Toys, 958 F.3d at 1344) (additional quotation omitted)). The key criterion is whether the
ordinary observer would be deceived so as to confuse the claimed design with the accused product.
See Shenzhen Z Tech Co. Ltd. v. Partnerships & Unincorporated Ass’ns Identified on Schedule A,
No. 25-cv-21474, 2025 WL 3840693, at *2 (S.D. Fla. Oct. 3, 2025) (citation omitted).
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Defendant submitted several exhibits at the hearing, each of which depicts a design patent
registered prior to Plaintiff’s registration of its own, and each of which represents a device that
creates smoke or vapor-filled bubbles. See (ECF Nos. 78-2–5). While there is some functional
overlap between certain of the exhibits and Plaintiff’s product, courts are instructed to disregard
functional similarities and instead focus on ornamental similarities among products during the
design patent analysis. See Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1293–94 (Fed. Cir.
2010) ([A] design patent, unlike a utility patent, limits protection to the ornamental design of the
article.”). From an ornamental standpoint, and without the benefit of a full evidentiary record, the
undersigned sees little resemblance between Plaintiff’s product and the prior art advanced by
Defendant. The closest resemblance is borne by the Fusco design patent, which resembles a two-
handed toy power drill. See (ECF No. 78-2). The undersigned limits its analysis of Plaintiff’s and
Defendant’s products accordingly—the attention of the hypothetical ordinary observer, here, will
be drawn to those aspects of Plaintiff’s aroma gun that differ from the Fusco patent’s design. See
Egyptian Goddess, 543 F.3d at 676.
Even with the analysis thus cabined, however, the overall “looks” of Plaintiff and
Defendant’s respective aroma guns are remarkably similar. On this front, the undersigned credits
the testimony of Mr. Flunder, who, while not an ordinary observer, credibly testified as to the
intended Flavour Blaster’s “theatrical,” “Sci-Fi,” and “Star Wars” look. (ECF No. 77 at 139). The
Court observed at the close of the hearing that “[t]he theater of the device” is that it is meant “to
be used in front of patrons, not applied in the back” of a given business consumer’s venue. (Id.).
Defendant’s aroma gun bears a strong overall resemblance to Plaintiff’s. Compare (ECF
No. 73-8), to (ECF No. 73-13). Both products resemble handheld guns with a sleek, matte finish.
Each features a flat base, a single handle, and a bulbous top from which a nozzle protrudes. From
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an ordinary observer’s standpoint, each embodies the “Sci-Fi” aesthetic that Mr. Flunder
characterizes as the Flavour Blaster’s core aesthetic trait. Finally, although it did not suffice as
evidence of confusion for purposes of Plaintiff’s trademark claims, the undersigned notes the fact
of the email communication sent to Plaintiff on September 22, 2025, (ECF No. 73-14) as support
for the proposition that the Parties market their goods to at least one common consumer. The
undersigned concludes that a reasonable observer in that customer’s shoes, viewing the products,
themselves, in isolation, could be deceived into thinking that Defendant’s product embodies
Plaintiff’s claimed design. See Shenzhen Z Tech Co., 2025 WL 3840693, at *2.
While Defendant identifies distinguishing adornments among the two products, (ECF No.
77 at 98, 101–104), these constitute minor deviations from the overall ornamental design before
the Court. Absent a showing otherwise, which with the benefit of further discovery Defendant may
well attempt to make, the undersigned concludes that a hypothetical ordinary observer familiar
with the prior art advanced by Defendant would fixate less on those minor deviations and more on
the “Star Wars” blaster look as a whole.
Defense accurately challenged Mr. Flunder’s testimony because he is not an ordinary
observer. (Id. at 139–40). Discovery may yet yield different information. At this early stage of the
proceedings, requiring an overly robust evidentiary proffer supporting Plaintiff’s claim under the
ordinary observer test would place preliminary injunctive relief out of reach of design patent
plaintiffs for whom preliminary injunctive relief must be attainable. Accordingly, the undersigned
concludes that Plaintiff has met its burden to show a likelihood of success on the merits of its
design patent infringement claim. Both Parties’ products share a futuristic “gun” design that
Plaintiff highlights as the Flavour Blaster’s aesthetic anchor. An ordinary observer choosing
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amongst the two products with awareness of the prior art, could reasonably be deceived into
believing that Defendant’s Aroma Blaster manifests Plaintiff’s design.
3. 	Plaintiff has Met its Burden to Demonstrate a Substantial Likelihood of
Success on the Merits of its Utility Patent Claim
Utility patent infringement involves a two-step process where first the claim language is
interpreted as a matter of law, and second, the accused device is compared to the interpreted claim
to determine infringement as a question of fact. Markman v. Westview Instruments, Inc., 52 F.3d
967 (Fed. Cir. 1995); Read Corp. v. Portec, Inc., 970 F.2d 816, 821–22 (Fed. Cir. 1992). There is
literal infringement where the accused device contains all of the limitations specified in a patent
claim. Read Corp., 970 F.2d at 821. Under the doctrine of equivalents, infringement may be found
where an accused product performs substantially the same overall function or work, in
substantially the same way, to obtain substantially the same overall result as the claimed invention.
See Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 339 U.S. 605 (1950); see also Perkin-Elmer
Corp. v. Computervision Corp., 732 F.2d 888, 901 (Fed. Cir. 1984); Warner-Jenkinson Co. v.
Hilton Davis Chem. Co., 520 U.S. 17, 39 (1997) (the function-way-result test (“triple identity”
test) is one means of finding equivalency, although other evidence may also be relevant to show
the substantiality of the differences).
Plaintiff 	argues 	that, 	under 	the 	“triple-identity” 	test, 	Defendant’s 	goods 	perform
substantially the same function substantially the way to obtain the same result as Plaintiff’s Utility
Patent. (ECF No. 21 at 10). That is, Defendant’s aroma gun consists of a device for:
creating a vapour filled bubble, comprising a dispensing nozzle including a liquid
retention formation for assisting bubble creation; an air displacement element; a
vapour producing means comprising a source of vapour producing liquid and a
means for heating the liquid; wherein the air displacement element is arranged to
provide airflow through the vapour producing means to produce vapour for delivery
to the dispensing nozzle, providing a system for the creation of vapour filled
bubbles to accompany refreshments.
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(ECF No. 5-8). Defendant does not assert that the Aroma Blaster performs a different function,
functions in a different way, or is designed to produce a different result than the Flavour Blaster.
Defendant instead asserts affirmative defenses that Plaintiff’s utility patent is invalid for
obviousness or, alternatively, as a result of Plaintiff’s inequitable conduct.
A patent is presumed valid. 35 U.S.C. § 282. Invalidity must be proven by clear and
convincing evidence. See ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc., 694 F.3d 1312,
1327 (Fed. Cir. 2014) (citing Microsoft Corp. v. i4i Ltd., 591 U.S. 91, 98–100 (2011)).
“Obviousness is a question of law based on underlying factual inquiries including: (1) the
scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences
between the prior art and the claimed invention as perceived before the time of invention; and (4)
the extent of any objective indicia of non-obviousness.” Rolls–Royce, PLC v. United Techs. Corp.,
603 F.3d 1325, 1338 (Fed. Cir. 2010) (citing Monarch Knitting Mack Corp. v. Sulzer Morat GmbH,
139 F.3d 877, 881 (Fed. Cir. 1998)). While obviousness is a question of law, it is “the disputed
facts underlying the legal conclusion [that] must be established by clear and convincing evidence.”
See Nutrition 21 v. United States, 930 F.2d 867, 871 (Fed. Cir. 1991) (quoting Newell Cos. v.
Kenney Mfg. Co., 864 F.2d 757, 767 (Fed. Cir. 1988)) (cleaned up). “If a person of ordinary skill,
before the time of invention and without knowledge of that invention, would have found the
invention merely an easily predictable and achievable variation or combination of the prior art,
then the invention likely would have been obvious.” Rolls–Royce, PLC, 603 F.3d at 1338 (citing
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417, 421 (2007)).
Defendant argues that several prior arts identified during Plaintiff’s original patent
application process in the United Kingdom, “indicating lack of novelty or inventive step,” went
undisclosed by Plaintiff in the U.S. patent application over which Plaintiff claimed priority.
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Beyond these prior arts themselves, Defendant has advanced no further evidence to demonstrate
obviousness by clear and convincing evidence. See ActiveVideo Networks, Inc., 694 F.3d at 1327.
To make a finding with respect to Defendant’s obviousness defense, the undersigned would need
to speculate, from an undeveloped record, as to each of the factual inquiries underlying that legal
finding. See Rolls–Royce, PLC, 603 F.3d at 1338. At this early stage of the litigation, and cognizant
that Defendant must prove its affirmative defense under a heightened evidentiary standard, the
undersigned cannot find that Defendant’s obviousness defense undermines Plaintiff’s claim of
utility patent infringement.
Defendant also raises the affirmative defense of inequitable conduct. “Inequitable conduct
may be found when a patentee or his attorney breaches [its] duty of disclosure by failing to disclose
material information with the intent to mislead or deceive.” Levenger Co. v. Feldman, 516 F. Supp.
2d 1272, 1284 (S.D. Fla. 2007) (citing Molins PLC v. Textron, Inc., 48 F.3d 1172, 1178 (Fed. Cir.
1995)). The challenger must prove two prongs: (1) that the information withheld was material and
(2) that the withholding was done with an intent to deceive. Id. An accused infringer raising the
defense “must prove that the patentee acted with the specific intent to deceive the PTO.”
Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1290 (Fed. Cir. 2011) (“[T]he accused
infringer must prove by clear and convincing evidence that the applicant knew of the reference,
knew that it was material, and made a deliberate decision to withhold it.”). “When an applicant
fails to disclose prior art to the PTO, that prior art is but-for material if the PTO would not have
allowed a claim had it been aware of the undisclosed prior art.” Id. at 1291.
Defendant argues that Plaintiff’s patent is unenforceable or void because Plaintiff
intentionally failed to disclose prior art to the USPTO and is therefore guilty of inequitable conduct
with respect to its utility patent. Defendant has advanced neither evidence nor testimony as to the
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intent prong or materiality prongs of the inequitable conduct test. Absent such a showing, the
undersigned cannot credit Defendant’s argument that Plaintiff’s utility patent is invalid.
Defendant does not otherwise dispute Plaintiff’s core utility patent infringement claim. The
undersigned accordingly finds that Plaintiff has demonstrated a substantial likelihood of success
on the merits of the claim.
D. 	Irreparable Harm
As set forth above, the undersigned finds that Plaintiff has met its burden to clearly show
a likelihood of success on its design and utility patent infringement claims. In trademark
infringement cases, “a sufficiently strong showing of likelihood of confusion . . . may by itself
constitute a showing of a substantial threat of irreparable harm.” McDonald’s Corp. v. Robertson,
147 F.3d 1301, 1306 (11th Cir. 1998). As discussed above, however, Plaintiff has not met its burden
to clearly show, at this early stage of the proceedings, that it is likely to succeed on the merits of
its trademark claim. For entry of a preliminary injunction to be proper, Plaintiff must clearly
demonstrate that, absent preliminary injunctive relief, it will suffer irreparable harm—that is, harm
not compensable through monetary relief. See Adams Arms, Inc. v. Sig Sauer, Inc., No. 10-CV-146,
2010 WL 3119777, at *16 (M.D. Fla. Aug. 2, 2010) (quoting Canon, Inc. v. GCC Int’l Ltd., 263 F.
App’x 57, 62 (Fed. Cir. 2008) (citing Dan B. Dobbs, Law of Remedies 193–94 (2d ed. 1993)).
Irreparable harm is the “sine qua non of injunctive relief.” Siegel v. Lepore, 234 F.3d 1163,
1176 (11th Cir. 2000) (quoting Northeastern Fla. Chapter of Ass’n of Gen. Contractors v. City of
Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990)). Even when movants establish a likelihood of
success on the merits, the absence of a substantial likelihood of irreparable injury renders
preliminary injunctive relief improper. See Siegel, 234 F.3d at 1176 (citing Snook v. Trust Co. Of
Georgia Bank of Savannah, N.A., 909 F.2d 480, 486 (11th Cir. 1990) (affirming denial of a
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preliminary injunction even though plaintiff established a likelihood of prevailing because plaintiff
failed to meet its burden of showing a substantial likelihood of irreparable injury)); see also
Hernandez v. Stingray Grp., Inc., No. 24-cv-21226, 2025 WL 2263629, at *6 (S.D. Fla. Mar. 10,
2025).
Plaintiff argues that “[a] showing of infringement of a valid patent creates a presumption
of irreparable harm, because ‘the very nature of a patent provides the right to exclude.’” (ECF No.
80 at 10) (quoting Pass & Seymour, Inc. v. Hubbell Inc., 532 F. Supp. 2d 418, 432 (N.D.N.Y. 2007)
(quoting Pfizer, Inc. v. Teva Pharms., USA, Inc., 429 F.3d 1364, 1381 (Fed. Cir. 2005))). The
Federal Circuit has indeed held that “[a] strong showing of likelihood of success on the merits
coupled with continuing infringement raises a [rebuttable] presumption of irreparable harm to the
patentee.” Reebok Intern. Ltd. v. J. Baker, Inc., 32 F.3d 1552, 1556 (Fed. Cir. 1994). However, in
eBay Inc. v. MercExchange, L.L.C., the Supreme Court rejected application of this categorical
presumption. See 547 U.S. 388, 392 (2006) (holding that plaintiffs alleging patent infringement
“must satisfy” the four-factor test before a court may grant permanent injunctive relief); see also
N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1228 (11th Cir. 2008) (“[N]o obvious
distinction exists between permanent and preliminary injunctive relief to suggest that eBay should
not apply to the latter.”). Instead, eBay requires that the Court apply “the traditional four-factor
framework that governs the award of injunctive relief.” eBay, 547 U.S. at 394; 35 U.S.C. § 283.
Since eBay was decided, the Federal Circuit “put the question to rest and confirm[ed] that eBay
jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of
injunctive relief.” Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1148 (Fed. Cir. 2011).
Courts in this Circuit have held that “a presumption of irreparable harm in a preliminary injunction
is inconsistent with” eBay and Bosch. Atleisure, Inc. v. Ace Evert Inc., No. 12-CV-1260, 2013 WL
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12099363, at *7 (N.D. Ga. Jun. 6, 2013); see also Tiber Labs., LLC v. Hawthorn Pharms., Inc.,
527 F. Supp. 2d 1373, 1380 (N.D. Ga. 2007); Design Pallets, Inc. v. Shandon Valley Transp. Sols.
USA, LLC, No. 12-cv-669, 2012 WL 12883525, at *4 (M.D. Fla. Jun. 7, 2012); Peach State Labs,
Inc. v. Env’t Mfg. Sols., LLC, No. 09-cv-395, 2011 WL 13140668, at *2–3 (M.D. Fla. Aug. 12,
2011).
The undersigned interprets eBay and its progeny to require that a preliminary injunction
movant demonstrate something more than intrusion upon the right to exclude. Granting injunctive
relief merely upon a showing that the right to exclude is under threat would be tantamount to
applying the presumption of irreparably injury squarely rejected by the eBay Court. See eBay, 547
U.S. at 392 (reversing Court of Appeals’ holding that the “statutory right to exclude alone justifies
its general rule in favor of permanent injunctive relief,” reasoning that “the creation of a right is
distinct from the provision of remedies for violations of that right”); see also id. (“[T]he Patent
Act expressly provides that injunctions ‘may’ issue ‘in accordance with the principles of equity.’”)
(quoting 35 U.S.C. § 283); Atleisure, Inc., 2013 WL 12099363, at *7 (rejecting argument that the
demonstrated existence of a likely infringer automatically demonstrates irreparable harm after
eBay) (“The ‘existence of a likely infringer’ is essentially the same as saying there is a likelihood
of success on the merits of a patent infringement claim, and the court has already held such a
finding cannot give rise to a presumption of irreparable harm.”) (citation omitted).
Upon fulsome review of the Parties’ filings, the evidence proffered at the evidentiary
hearing, and the testimony given thereupon, the undersigned cannot conclude that Plaintiff has met
its burden to clearly show that it will be irreparably harmed absent issuance of an injunction.
Plaintiff’s claim of irreparable injury turns primarily on its trademark claim; that is, Plaintiff asserts
that its brand reputation and goodwill have been and will be undermined by Defendant’s marketing
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of the Aroma Blaster. (ECF No. 80 at 9). As discussed supra, however, Plaintiff has not met its
burden to show that it has a likelihood of success on the merits of its trademark claim precisely
because it has not sufficiently demonstrated a likelihood of confusion for purposes of a preliminary
injunction. While Mr. Flunder testified generally as to consumer confusion, and Plaintiff asserts
that it has “suffered price erosion,” in the form of consumer demands for “deeper discounts as
counterfeits reduced prices,” (ECF No. 80 at 9), Plaintiff submitted no evidence thereof. Plaintiff
acknowledges that “Explonova’s aroma gun entered the market July 2023.” (Id. at 9). Yet the lone
evidence advanced in support of its assertions of confusion was Plaintiff’s Exhibit No. 14, which,
as Defendant points out, (ECF No. 78 at 3), is ambiguous as to confusion. See (ECF No. 73-14).
The remainder of Plaintiff’s argument centers on harm to lost sales and increased
expenditures attributable, per Plaintiff, to Defendant’s infringement. See (ECF No. 80). For these
factors to support a finding of irreparable harm, Plaintiff must advance evidence justifying “a
finding that the competitor’s infringing features drive consumer demand for its products[.]” See
Apple Inc. v. Samsung Elecs. Co., Ltd., 809 F.3d 633, 640 (Fed. Cir. 2015) (“[A] causal nexus
linking the harm and the infringing acts must be established[.]”); see also id. at 641 (“When a
patentee alleges it suffered irreparable harm stemming from lost sales solely due to a competitor’s
infringement, a finding that the competitor’s infringing features drive consumer demand for its
products satisfies the causal nexus inquiry.”).
At the hearing, Mr. Flunder testified as to his personal knowledge of a drop-off in sales
revenues. See (ECF No. 77 at 43). As for expenditures resulting from suspected infringement, Mr.
Flunder further testified that before Jetchill “saw the copycats,” its annual spend on paid
advertisements totaled approximately £250,000, whereas its current annual spend is roughly
double that figure. (ECF No. 77 at 42); see also (ECF No. 80 at 9) (“Plaintiff has been forced to
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dramatically increase its spend on marketing to counter the effects of infringers like Explonova.”).
These appear to be compensable harms, absent some showing by Plaintiff that Defendant’s
infringement has taken market share or actually harmed Defendant’s business reputation. The
Court is wary of affording more than limited probative value to Mr. Flunder’s testimony that these
harms are “irreparable.” “Conclusory statements by an officer of the moving party of limited
probative value.” Atleisure, Inc., 2013 WL 12099363, at *8 (“‘Conclusory statements by an officer
of the moving party are of limited probative value. More than a simple recitation of the threat, [the
plaintiff] must present specific ‘credible and admissible evidence[.]’”) (quotation and marks
omitted).
Plaintiff separately asserts that it “suffered price erosion.” (ECF No. 80 at 9). The Flavour
Blaster retails at a premium price point of $500; Mr. Flunder testified that this price point was
selected because it “is a bit like having an Apple iPhone [in that] people pay because they know
they are getting the brand and quality.” (ECF No. 77 at 72). Mr. Flunder further testified that
Jetchill had “been forced to offer some discounts” from its standing price point “because of the
copycats.” (Id. at 125). Plaintiff’s counsel testified as to his personal awareness “that there are
hundreds of infringers of this product selling on Amazon and elsewhere.” (Id. at 136). Plaintiff has
not set forth a basis on which to find that the price erosion to which Mr. Flunder testified—further
evidence of which Plaintiff has not advanced—exists in a causal nexus with Defendant’s marketing
and sale of its product. See Apple Inc. v. Samsung Elecs. Co., Ltd., 809 F.3d 633, 640 (Fed. Cir.
2015). Indeed, Plaintiff’s Exhibit No. 13 suggests that the Aroma Blaster is primarily marketed
towards a consumer market distinct from the Flavor Blaster’s. Compare (ECF No. 73-13)
(marketing the Aroma Blaster as “[p]erfect for bar counters, outdoor picnics, and family
gatherings”), to (ECF No. 77 at 63) (“[The Flavour Blaster] is known by big companies such as
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your Disneys and your Hiltons and your Marriotts and people like that.”) and (ECF No. 77 at 30)
(“[The Flavour Blaster] is used by all types of hospitality venues; whether it is restaurants, bars,
clubs, hotels, all the way from small bars, maybe, that hold 20 people all the way up to
multinational companies[.]”).
Defendant maintains, in its Closing Brief, that Plaintiff has inadequately demonstrated
irreparable injury because “Mr. Flunder’s testimony provided no quantifiable data on lost sales,
market share erosion, or reputational damage tied to Defendant’s design; instead, any alleged
losses (e.g., diverted sales) are fully compensable through monetary damages based on sales
records.” (ECF No. 78 at 7). While the undersigned does not agree that submission of such data is
a prerequisite to establishing irreparable harm, I do note the absence of such evidentiary
submissions from Plaintiff’s evidentiary proffer.
Further weighing against a finding of irreparable harm in the Court’s current posture, the
undersigned notes this Circuit’s rule that “[a] delay in seeking a preliminary injunction of even
only a few months—though not necessarily fatal—militates against a finding of irreparable harm.”
Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016) (citations omitted). Whereas
Plaintiff first learned of Defendant’s alleged infringement on its patent and trademark rights
“sometime in early 2023,” (ECF No. 77 at 110), it opted not to pursue relief in federal court until
the filing of the Illinois action in November 2024, (ECF No. 80-2). And Plaintiff proffers that it
did not investigate its utility patent claim until the summer of 2025, after the Illinois action had
been dismissed for improper joinder in March 2025. (ECF No. 80-1 at 4). This delay was
notwithstanding that Plaintiff was on notice Defendant was marketing an aroma gun similar to its
own and advertised for mixology use at the time it brought the Illinois action. The undersigned
finds that Plaintiff’s delays—both in bringing the Illinois action after learning of Defendant’s
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product and in bringing its utility patent claim—cut against its assertion of irreparable harm. Under
the totality of the circumstances, and in light of the evidence advanced at the October 23 hearing,
the undersigned cannot conclude that Plaintiff has met its burden “to demonstrate an imminent
injury that would warrant the ‘extraordinary and drastic remedy’ of a preliminary injunction.” See
Wreal, LLC, 840 F.3d at 1248–49 (citations omitted). Accordingly, Plaintiff’s Motion for
Preliminary Injunction, (ECF No. 21), is due to be denied. See Siegel, 234 F.3d at 1176.
IV. 	CONCLUSION
For the foregoing reasons, the undersigned respectfully RECOMMENDS that Jetchill’s
Motion for Preliminary Injunction, (ECF No. 21), be DENIED.
A party shall serve and file written objections, if any, to this Report and Recommendations
with the Honorable David S. Leibowitz, United States District Judge for the Southern District of
Florida, within FOURTEEN (14) DAYS of being served with a copy of this Report and
Recommendation. Failure to timely file objections will bar a de novo determination by the District
Judge of anything in this recommendation and shall constitute a waiver of a party’s “right to
challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on 	unobjected-to 	factual 	and 	legal
conclusions.” 11th Cir. R. 3-1 (2016); 28 U.S.C. § 636(b)(1); see also Harrigan v. Metro-Dade
Police Dep’t Station #4, 977 F.3d 1185, 1191–92 (11th Cir. 2020).
RESPECTFULLY SUBMITTED in Chambers at Miami, Florida, this 26th day of
November, 2025.
____________________________________
LAUREN F. LOUIS
UNITED STATES MAGISTRATE JUDGE
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