Opinion
Nos. 96 Civ. 9721 (PKL) (THK), 98 Civ. 0123 (PKL) (THK), 01 Civ. 9645 (PKL) (THK).
January 21, 2005.
David E. Jacoby, Esq., Elizabeth A. Adinolfi, Esq. (on briefs), PHILLIPS, NIZER, BENJAMIN, KRIM BALLON LLP, New York, New York, Attorneys for Plaintiff Gianni Versace S.p.A.
Bryan J. Holzberg, Esq., Melville, New York, Attorney for Defendant Alfredo Versace.
Warren R. Hamilton, Esq., Philadelphia, Pennsylvania, Attorney for Defendant L'Abbigliamento, Ltd.
OPINION AND ORDER
After more than eight years and a dozen opinions, the Court considers the latest exchange of blows between Gianni Versace S.p.A. ("Gianni") and Alfredo Versace ("Alfredo") in their seemingly interminable bout over the use of the Versace surname. At present, three actions are pending before the Court involving these parties, and each concerns Alfredo's alleged infringement of the Versace trademark. In its present petition, Gianni requests that the Court (1) consolidate the third action with the two previously consolidated earlier actions, (2) enter default judgments against Alfredo in the first two actions; and (3) enter a permanent injunction that tracks the substantive provisions of the modified preliminary injunction currently in force in the two earlier actions. For the reasons that follow, Gianni's motion is granted.
BACKGROUND
In light of the tortured history of this trilogy of cases and the recitation of their facts in prior decisions, the Court will only discuss their background to the extent necessary for the disposition of the present motion. See A.V. By Versace, Inc. v. Versace, Nos. 96 Civ. 9721, 98 Civ. 0123, 2004 WL 691243 (S.D.N.Y. Mar. 31, 2004); Gianni Versace, S.p.A. v. Versace, No. 01 Civ. 9645, 2003 WL 22023946 (S.D.N.Y. Aug. 27, 2003); Gianni Versace, S.p.A. v. Versace, No. 01 Civ. 9645, 2003 WL 470340 (S.D.N.Y. Feb. 25, 2003); A.V. By Versace, Inc. v. Gianni Versace, S.p.A., Nos. 96 Civ. 9721, 98 Civ. 0123, 2002 WL 2012618 (S.D.N.Y. Sept. 3, 2002); A.V. By Versace, Inc. v. Gianni Versace, S.p.A., 191 F. Supp. 2d 404 (S.D.N.Y. 2002); A.V. By Versace, Inc. v. Gianni Versace, S.p.A., 160 F. Supp. 2d 657 (S.D.N.Y. 2001); A.V. By Versace, Inc. v. Gianni Versace, S.p.A., 126 F. Supp. 2d 328 (S.D.N.Y. 2001); A.V. By Versace, Inc. v. Gianni Versace, S.p.A., 87 F. Supp. 2d 281 (S.D.N.Y. 2000), A.V. By Versace, Inc. v. Gianni Versace, S.p.A., No. 96 Civ. 9721, 1998 WL 832692 (S.D.N.Y. Dec. 1, 1998).
In December 1996, A.V. By Versace, a corporation that claimed it held a license to use certain Versace trademarks, sought injunctive relief and damages against Gianni and Alfredo, after Gianni sent a cease and desist letter to a vendor selling A.V. By Versace athletic shoes. Gianni counter-claimed against A.V. By Versace for trademark infringement and cross-claimed against Alfredo for a declaration regarding the manner in which he could use the Versace surname going forward.
This case was assigned No. 96 Civ. 9721 and will be referred to hereinafter as "Case 1."
In January 1998, Gianni filed suit for trademark infringement against Alfredo and Foldom International (U.S.A.), Inc. ("Foldom") for their alleged efforts to license infringing trademarks around the world. The Court consolidated the two actions in December 1998 (collectively, "the Consolidated Cases"). See A.V. By Versace, Inc. v. Versace, No. 96 Civ. 9721, 1998 WL 832692 (S.D.N.Y. Dec. 1, 1998).
This case was assigned No. 98 Civ. 0123 and will be referred to hereinafter as "Case 2."
On February 4, 1998, the Court granted Gianni's request for a preliminary injunction, which enjoined Alfredo Versace from, inter alia, using or licensing the use of various "Infringing Marks" that incorporated the name "Versace" as well as the use of any other trademarks confusingly similar to those of Gianni. Since the entry of the preliminary injunction, the Court has found Alfredo in contempt for violating the terms of the injunction and subsequent court orders no less than five times. See A.V. By Versace, 87 F. Supp. 2d at 294-96; A.V. By Versace, 191 F. Supp. 2d at 404-05; A.V. By Versace, 2002 WL 2012618, at *8; A.V. By Versace, 279 F. Supp. 2d at 355-56; A.V. By Versace, 2004 WL 691243, at *7. Indeed, Alfredo's continued defiance has forced the Court to impose severe sanctions. On March 21, 2002, the Court adopted the Opinion and Order and Report and Recommendation of United States Magistrate Judge Theodore H. Katz dated January 9, 2002 in its entirety, wherein Magistrate Judge Katz recommended, inter alia, that Alfredo's Answer and cross-claim in Case 1 and Answer in Case 2 be stricken as a sanction for his long-term failure to obey three discovery orders. See A.V. By Versace, 191 F. Supp. 2d at 405. Moreover, in September 2002, the Court granted Gianni's motion to modify the preliminary injunction to prohibit Alfredo from using the Versace surname in any commercial context. See A.V. By Versace, 2002 WL 2012618, at *13. Finally, in its most recent decision, the Court warned Alfredo of the possibility of a term of civil commitment due to his contumacious behavior. See A.V. By Versace, 2004 WL 691243, at *8-9.
It should be noted that all other parties in the Consolidated Cases were either subjected to default judgments or had settled with Gianni by the time the Court adopted Magistrate Judge Katz's ruling. See A.V. By Versace, 2003 WL 22023946, at *4 n. 18.
The third and final action pending was instituted on November 1, 2001 by Gianni. In that case, plaintiff alleged trademark infringement against Alfredo, L'Abbigliamento, Ltd., and Esrim Ve Sheva Holding Corporation, in connection with the sale and promotion of a clothing line and watches. Gianni negotiated a settlement with Esrim Ve Sheva Holding Corporation and moved for summary judgment against Alfredo and L'Abbigliamento, Ltd ("L'Abbigliamento"). On August 27, 2003, the Court granted plaintiff's motion with respect to certain claims in so far as it sought injunctive relief, but denied summary judgment for monetary damages. See A.V. By Versace, 2003 WL 22023946, at *15.
This case was assigned No. 01 Civ. 9645 and will be referred to hereinafter as "Case 3."
By the instant motion, Gianni requests that the Court (1) consolidate Case 3 with Cases 1 and 2, which have been consolidated previously; (2) enter default judgments against Alfredo in Cases 1 and 2, wherein Alfredo's pleadings have been struck; and (3) enter a permanent injunction against Alfredo and L'Abbigliamento that is similar in all material respects to the modified preliminary injunction currently in force against Alfredo.
DISCUSSION
1. Consolidating Case 3 with Cases 1 and 2
Rule 42(a) of the Federal Rules of Civil Procedure provides that "[w]hen actions involving a common question of law or fact are pending before the court, . . . it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Fed.R.Civ.P. 42(a). As the Court noted when it ordered the consolidation of Cases 1 and 2, "[t]he trial court has broad discretion to determine whether consolidation is appropriate. In the exercise of discretion, courts have taken the view that considerations of judicial economy favor consolidation." A.V. By Versace, 1998 WL 832692, at *2 (quoting Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990)).
Gianni argues that the consolidation of Case 3 with Cases 1 and 2 is proper because all three actions involve the same type of trademark infringement claims concerning the use of various marks incorporating the name "Versace" in the sale of clothing and other merchandise by Alfredo and his affiliates. (Memorandum of Law of Gianni Versace S.p.A. In Support of Its Motion for Consolidation, Entry of Default Judgment in Cases 1 and 2 and Permanent Injunction ("Gianni Mem."), at 4-6.) Notably, Alfredo raised no objection to consolidation.
Following the analysis set forth in its prior consolidation opinion, the Court agrees that consolidation of all three cases is appropriate. All three are based upon claims that Alfredo infringed upon Gianni's trademarks and all seek similar relief. Thus, to avoid duplicative litigation, wasting judicial resources, and potential inconsistent judgments, Case 3 should be consolidated with the previously consolidated Cases 1 and 2.
II. Entry of Default Judgments in Cases 1 and 2
As noted above, in March 2002, the Court adopted Magistrate Judge Katz's finding that Alfredo's Answer and cross-claim in Case 1 and Answer in Case 2 should be stricken as a sanction for willful disobedience of three discovery orders. See Background, supra. Gianni now petitions the Court to enter a default judgment in Case 1 and a default judgment as to liability in Case 2. Petitioner contends that a default judgment will properly end Case 1 because only declaratory and injunctive relief were sought. However, a default judgment as to liability is appropriate for Case 2 because damages were claimed in that case and have yet to be determined. (Gianni Mem. at 8.) Alfredo's only challenge to this application is the conclusory statement that it should be denied in its entirety as premature. (See Alfredo Versace Affidavit In Opposition dated July 7, 2004, ¶ 9.)
As Magistrate Judge Katz thoroughly addressed in his Opinion and Order and Report and Recommendation, a court does not impose the sanction of striking a pleading without considering less severe alternatives. See A.V. By Versace, Inc. v. Gianni Versace, S.p.A., Nos. 96-9721, 98-0123, 2002 U.S. Dist. LEXIS 849, at *28-32 (S.D.N.Y. Jan. 9, 2002). However, "[a]lthough entry of a default judgment is an extreme measure, discovery orders are meant to be followed. `A party who flouts such orders does so at his peril.'" Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995) (quoting Update Art, Inc. v. Modiin Publ'g., Ltd., 843 F.2d 67, 73 (2d Cir. 1988)); see also MCI Worldcom Communications, Inc. v. Gamma Communications Group, Inc., 204 F.R.D. 259, 261-62 (S.D.N.Y. 2001) (Motley, J.) (granting plaintiff's motion to strike answer and order the entry of default judgment against defendants). Here, Alfredo's pleadings in Cases 1 and 2 have already been stricken as a sanction and he was not given the opportunity to replead. Thus, Gianni is requesting the Court to take the procedural step of entering default judgment in those actions.See 10 James Wm. Moore et al., Moore's Federal Practice ¶ 55.10[3][a] (3d ed. 1997) ("If a pleading is struck and a party is not granted leave to replead then the party is in default for failure to plead."). As the Court has indicated in the past, sanctioning Alfredo by striking his pleadings is tantamount to a default judgment. See A.V. By Versace, 2004 WL 691243, at *2 ("On March 21, 2002, this Court adopted Judge Katz's Opinion and Order and Report and Recommendation in its entirety, essentially causing a default for Alfredo Versace in the instant consolidated action."); A.V. By Versace, 279 F. Supp. 2d at 344 (same); Versace, 2003 WL 22023946, at *4 (same); A.V. By Versace, 2002 WL 2012618, at *2 (same); A.V. By Versace, 191 F. Supp. 2d at 405 n. 1 ("Because this portion of Magistrate Judge Katz's Opinion and Order and Report and Recommendation is case dispositive, Rule 72(b) of the Federal Rules of Civil Procedure and Title 28 United States Code Section 636(b)(1)(B)-(C) mandate de novo review.").
Alfredo's contention that the entry of a default judgment at this stage is somehow "premature" is baseless. Moreover, it requires a certain audacity to claim that Gianni is not yet entitled to a default judgment in the Consolidated Cases nearly three years after Alfredo's pleadings were struck for the continuous contumacious behavior he exhibited more than four years ago. Accordingly, the Court grants Gianni's petition to enter default judgment in Case 1 and default judgment as to liability in Case 2.
III. Entry of a Permanent Injunction Against Alfredo and L'Abbigliamento
Finally, Gianni requests the entry of a permanent injunction against Alfredo and L'Abbigliamento that tracks the substantive provisions of the modified preliminary injunction already in force against Alfredo in the Consolidated Cases. Gianni argues that Alfredo's extreme bad faith and repeated violations of the preliminary injunction and the modified preliminary injunction over the years demonstrate that converting the modified preliminary injunction to a permanent injunction is appropriate. Before turning to the merits of that argument, the Court will review the historical development of the modified preliminary injunction now in place to clarify the nature of relief being sought in this motion.
Gianni also requests, without discussion, that judgment be entered against both defendants in Case 3. (Reply Memorandum of Law of Gianni Versace S.p.A. In Further Support of Its Motion for Consolidation, Entry of Default Judgment in Cases 1 and 2 and Permanent Injunction, at 6.) Entry of judgment is not proper at this stage because not one of the five claims in Case 3 has been fully adjudicated. See, e.g., Lankler Siffert Wohl LLP v. Rossi, No. 02 Civ. 10055, 2004 U.S. Dist. LEXIS 4241, at *9 (S.D.N.Y. Mar. 19, 2004) (Sweet, J.) (A claim is finally decided "[i]f the decision `ends the litigation [of that claim] on the merits and leaves nothing for the court to do but execute the judgment' entered on that claim.") (quoting Ginett v. Computer Task Group, 962 F.2d 1085, 1092 (2d Cir. 1992)). While plaintiff has been granted summary judgment on claims one, two, four and five to the extent they seek injunctive relief, those claims are not fully resolved because plaintiff also seeks damages. Moreover, claim three regarding trademark dilution under § 43(c) of the Lanham Act was not a part of the summary judgment petition and thus, also remains unresolved.
A. History of Preliminary Injunction
As noted above, on January 8, 1998, Gianni filed suit against Alfredo and Foldom alleging trademark infringement, unfair competition, and trademark dilution under the Lanham Act, trademark dilution under New York General Business Law, and trademark infringement and unfair competition under New York common law. Gianni claimed that defendants were manufacturing and selling clothing and other goods bearing the names "AV Versace," "Versace by A.V.," or "Alfredo Versace." In addition, Gianni contended that Alfredo had placed an advertisement in an issue ofWomen's Wear Daily, soliciting persons to license franchise trademarks from "A.V. Versace." By its Complaint, Gianni sought a preliminary injunction enjoining defendants from using "its trademarks or trade dress or any designation so similar as likely to cause confusion, mistake or deception," including "Alfredo Versace," "A.V. by Versace," "Versace by A.V." and "A Versace," as well as compensatory and punitive damages. See A.V. By Versace, 87 F. Supp. 2d at 284.
The case was initially assigned to the Honorable Sidney H. Stein of this Court and on February 4, 1998, Judge Stein granted Gianni's request for a preliminary injunction, issuing his decision from the bench. Id. Six days later, on February 10, 1998, Judge Stein entered a preliminary injunction, which ordered, inter alia, that,
[d]efendants, their officers, agents, servants, employees, representatives, licensees, and attorneys, and all persons in active concert or participation or privity with any of them who receive actual notice of this Order, are hereby enjoined, pendente lite, in the United States of America from registering, attempting to register, using, advertising, marketing, licensing, franchising, promoting or authorizing the use of any of the Versace Trademarks, Versace Trade Dress, or the Medusa Designs, as or as part of a trademark, service mark, business name, or trade name for any product, service, or business, or in such a manner as to create the impression that such name, logo or symbol is the trade name or business name of any designed, manufacturer, distributor, retailer or other business or trademark or service mark for any product or service. . . .See Preliminary Injunction, dated February 10, 1998, ¶ 8; see also id. ¶¶ 9, 10 (prohibiting Alfredo from using his name as a trademark and restricting the use of his name solely to identify him as the designed of goods he has actually designed); id. ¶ 12 (prohibiting defendants from attempting to register various marks, including "Alfredo Versace," "A.V. by Versace," "A. Versace," and "A. Versace," and requiring that any pending application be withdrawn or abandoned); id. ¶ 13 (prohibiting Alfredo from delegating or licensing his rights or obligations under the preliminary injunction, subject to limited exceptions); id. ¶ 15 (ordering defendants to provide a copy of the Order to "all present and former licensees, franchisees, customers and distributors").
On January 4, 2001, the Court clarified that the preliminary injunction applies extraterritorially. See A.V. By Versace, 126 F.Supp. 2d at 336.
Although the injunction, when first entered, barred Alfredo from using his name as a trademark, it allowed him to use his name to identify goods that he designed by use of the phrase "Designed by Alfredo Versace," as long as the goods so identified prominently displayed the disclaimer: "not affiliated with or authorized by Gianni Versace S.p.A." Id. ¶¶ 9-10. Moreover, the disclaimer had to be printed in the same size as the words "Designed by Alfredo Versace." Id. However, after repeated violations of the preliminary injunction, the Court modified it to bar Alfredo from using the surname "Versace" in any commercial context. See A.V. By Versace, 2002 WL 2012618, at * 12-13. The Court signed the modified preliminary injunction on January 27, 2003. Since then, the Court found in two separate opinions that Alfredo continued to violate the modified preliminary injunction. See A.V. By Versace, 2004 WL 691243, at *5-8; A.V. By Versace, 279 F. Supp. 2d at 352-53.
B. Permanent Injunction Standard
A permanent injunction is proper only when plaintiff shows "the absence of an adequate remedy at law and irreparable harm if the relief is not granted." New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989); see also United States v. Vazquez, 145 F.3d 74, 81 (2d Cir. 1998). In the realm of trademark infringement and unfair competition, "[p]ermanent injunctive relief will be granted only upon proof of the likelihood that purchasers of the product may be misled in the future." Collins v. Aztar Corp., No. 99 Civ. 7912, 2000 U.S. App. LEXIS 4484, at *6 (2d Cir. Mar. 20, 2000) (quoting Burndy Corp. v. Teledyne Indus., Inc., 748 F.2d 767, 772-73 (2d Cir. 1984)). A plaintiff in a trademark infringement case must demonstrate actual success on the merits and irreparable harm to obtain a permanent injunction. See Hard Rock Café Int'l. (USA) Inc. v. Morton, No. 97 Civ. 9483, 1999 U.S. Dist. LEXIS 13760, at *13-14 (S.D.N.Y. Sept. 8, 1999) (citing Wojnarowicz v. Am. Family Ass'n, 745 F. Supp. 130, 148 n. 13 (S.D.N.Y. 1990)). He may not rely, as one petitioning for a preliminary injunction may, on a mere showing of a likelihood of success. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987). Furthermore, in this Circuit, a finding of likelihood of confusion generally establishes irreparable harm. See Genesee Brewing Co., Inc. v. Stroh Brewing Co., 124 F.3d 137, 142 (2d Cir. 1997). In short, "[t]he necessary determination is that there exists some cognizable danger of recurrent violation. . . ." Hard Rock Café, 1999 U.S. Dist. LEXIS 13760, at *15 (citation omitted). The Second Circuit reviews a district court's issuance of a permanent injunction for abuse of discretion. See Starter Corp. v. Converse, Inc., 170 F.3d 286, 298 (2d Cir. 1999).
C. Permanent Injunction Against Alfredo
Gianni argues that it is entitled to the entry of a permanent injunction against Alfredo in all three cases because it has demonstrated actual success on the merits and irreparable harm in each of the three cases. For all three cases, Gianni seeks the same permanent injunction that tracks the modified preliminary injunction in force in the Consolidated Cases. Thus, as Gianni acknowledges, the entry of a permanent injunction against Alfredo in one of the three cases renders the entry of a permanent injunction in the other two cases academic because the same injunctive relief is being sought for each case. (Gianni Mem. at 14.) Consequently, it is only necessary that the Court find that Gianni has demonstrated actual success on the merits and irreparable harm in one of the three cases for a permanent injunction to issue. However, the Court may, and will, consider the totality of the cases in its critical determination concerning the likelihood that Alfredo will mislead consumers in the future.
After enduring more than eight years of litigation marked by the infringing and contumacious conduct of Alfredo, the Court finds that Gianni has proven actual success on the merits and irreparable harm sufficient to warrant the entry of a permanent injunction in Case 3. Alfredo claims that a permanent injunction should not enter because Gianni has not prevailed on the merits of his claims in Case 3 as damages have not been determined. (Memorandum of Law of Alfredo Versace, In Opposition of Gianni Versace's Motion for Consolidation, Entry of Default Judgment in Cases 1 and 2 and Permanent Injunction ("Alfredo Mem.") at 4-5, 8.) This argument simply ignores the fact that this Court granted Gianni summary judgment on its claims of trademark infringement and unfair competition under the Lanham Act as well as common law trademark infringement and unfair competition to the extent it sought injunctive relief. Injunctive relief is precisely what Gianni is seeking, and prevailing at the summary judgment stage constitutes "actual success on the merits." See Gucci Am., Inc. v. Duty Free Apparel, Ltd., 286 F. Supp. 2d 284, 290 (S.D.N.Y. 2003).
While Alfredo is correct that Gianni has not made a sufficient showing of confusion to warrant damages and that a damages determination remains for trial, his argument does not undermine the case for a permanent injunction because there are two different standards for confusion depending on the relief sought. As the Court noted in its summary judgment opinion, a plaintiff seeking injunctive relief need only prove a likelihood of confusion; however, if money damages are requested, a plaintiff is required to prove "actual consumer confusion or deception resulting from the violation." See A.V. By Versace, 2003 WL 22023946, at *11 (citation omitted). Thus, in its effort to secure an injunction to prevent future trademark infringement, as distinguished from its attempt to collect damages for past infringement, Gianni needed only to establish the likelihood of consumer confusion. As discussed below, Gianni persuaded the Court of that likelihood and achieved actual success on the merits to the extent it sought injunctive relief. The finding critical to that decision was the Court's conclusion that "[t]here is undoubtedly and as a matter of law a strong likelihood of confusion between plaintiff's products and those of the defendants." A.V. By Versace, 2003 WL 2202396, at *13. The Court arrived at this view after a thorough analysis of the eight factors set forth by Judge Friendly in Polaroid Corp. v. Polaroid Elecs. Corp., 287 F.2d 492 (2d Cir. 1961). Id. at *7-13. Thus, Gianni has established to the Court's satisfaction the potential for irreparable harm. See Genesee Brewing Co., 124 F.3d at 142.
While Gianni's proof of actual success on the merits and irreparable harm is sufficient for a permanent injunction to issue, the Court notes that Alfredo's conduct throughout the history of this litigation further supports the Court's determination that there is a "cognizable danger of recurrent violation." Hard Rock Café, 1999 U.S. Dist. LEXIS 13760, at *15. Over the years, despite the clear terms of the preliminary injunction, Alfredo has violated it, in its original form and as modified, on numerous occasions by engaging in a variety of schemes, including the failure to remove all Infringing Marks from the internet, the sale of watches, jeans, handbags and bottled water marked with the Versace name and the use of the business name "Versace Boutique." Recognizing that he should be permitted to earn a living so long as he does not abuse Gianni's valuable trademark, the Court has given Alfredo every opportunity to work within the reasonable restrictions of the preliminary injunction and remedy his violations. While Alfredo's recent efforts to purge his contempt are to be commended, on their own, they do not convince the Court that he will not seek to capitalize improperly on the Versace surname in the future.
Alfredo compares the entry of a permanent injunction to a "death sentence." (Alfredo Mem. at 8.) The Court is no longer willing to entertain such pleas from Alfredo. The time for words has passed. Actions are the true measure of a party's intentions and Alfredo has failed to act in a manner that assures this Court that he will end his infringing conduct in the future. Indeed, Alfredo continues to exhibit "no interest in establishing an enterprise in which his own skill can be made known to the public." A.V. By Versace, 2003 WL 22023946, at *12. Accordingly, the Court grants Gianni's request for a permanent injunction against Alfredo that is similar in all material respects to the modified preliminary injunction currently in force in the Consolidated Cases.
D. Permanent Injunction Against L'Abbigliamento
Despite the potential gravity of a permanent injunction, given L'Abbigliamento's past failure to oppose Gianni's motion for summary judgment, perhaps it should not surprise the Court that L'Abbigliamento did not file any papers opposing the instant motion. In its August 27, 2003 summary judgment opinion, rendered nearly two years after Case 3 began, the Court specifically noted that L'Abbigliamento and its counsel, Warren R. Hamilton, Esq., had exceeded the Court's patience by failing to have an attorney qualified to practice in this District enter an appearance on L'Abbigliamento's behalf. See Versace, 2003 WL 22023946, at *14. The Court informed L'Abbigliamento and Mr. Hamilton that L'Abbigliamento would be subject to a default judgment if an attorney did not enter an appearance within thirty-days. Id. Nearly thirty-days later, on September 23, 2003, the Court approved Mr. Hamilton's application for admission pro hac vice. Notwithstanding the admission of its attorney and proper service of the motion, L'Abbigliamento evidently decided not to oppose Gianni's petition for a permanent injunction.
Nevertheless, it is far from clear that their arguments would have been at all persuasive. Following the same reasoning applied to Alfredo the Court finds that a permanent injunction should issue against L'Abbigliamento as well. Relying again upon the Court's summary judgment ruling with respect to injunctive relief in Case 3, Gianni has demonstrated actual success on the merits against L'Abbigliamento. Furthermore, the risk of irreparable harm is confirmed by the Court's determination within that ruling that there is a strong likelihood of confusion between Gianni's products and those that L'Abbigliamento developed with Alfredo.Id. at *13. Accordingly, the Court grants Gianni's request for the entry of a permanent injunction against L'Abbigliamento.
CONCLUSION
Based on the foregoing, Gianni's motion for consolidation, entry of default judgment and entry of a permanent injunction is GRANTED. Case 3 is hereby consolidated with Cases 1 and 2. Moreover a default judgment is hereby entered against Alfredo in Case 1 and a default judgment as to liability is hereby entered against Alfredo in Case 2.
Rule 65 of the Federal Rules of Civil Procedure provides that an injunction must "describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained." Fed.R.Civ.P. 65(d); see also Goldic Elec., Inc. v. Loto Corp. U.S.A., 27 Fed. Appx. 71, 75 (2d Cir. 2001) (finding District Court's permanent injunction did not give proper notice because it was not entered in a separate document). Accordingly, the permanent injunction against Alfredo and L'Abbigliamento must be entered on a separate document without reference to the complaint, the modified preliminary injunction, or any other document. Gianni is ordered to submit a proposed permanent injunctive order to the Court on five days notice to defendants. The proposed order should be similar in all material respects to the modified preliminary injunction dated January 27, 2003, currently in force against Alfredo in the Consolidated Cases.