Opinion
17-CV-203 (KMW)(KNF)
12-08-2020
PEARSON EDUCATION, INC., CENGAGE LEARNING, INC., and MCGRAW-HILL GLOBAL EDUCATION HOLDINGS, LLC, Plaintiffs, v. HELIOSBOOKS, INC.; KOLYO HRISTOV; RAMAN KANDOLA; NICHOLAS LITTLE; HAMID KHAN; SHARMA RAJESH; YK SHARMA; BHAGWAT PRAKESH; BOOSTI, LLC; MY BOOK DRIVE, INC.; OLIVER W. CHEN; SIOW HONG CHANG; BLUE ROCKET BOOKS LTD.; DONALD BOONE; LUKE BROWN; FINE LINE MEDIA LLC; PRINCE JOHNSON; PRINCE SANCHEZ; MENG ZHANG; SITAPA RUJIKIETGUMJORN; WASIN RUJIKIETGUMJORN; MANUJ OBEROI; PATRICK MEDLEY; JAMES NELSON; ROGGER FARBER; FBAAZ, CORP.; DERICK RADFORD; JONATHAN HINDS; DILSHAD SAIFI; ANDREW BAILEY; SAMANTHA ANDERSON; and DOES 1-10, Defendants.
HONORABLE KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE
Plaintiffs Pearson Education, Inc. (“Pearson”), Cengage Learning, Inc. (“Cengage”), and McGraw-Hill Global Education Holdings, LLC (“McGraw-Hill”) commenced this action against Does 1-100, seeking damages and injunctive relief for copyright infringement in violation of Title 17 U.S.C. § 501 et seq and Title 17 U.S.C. § 101 et seq, trademark infringement in violation of Title 15 U.S.C. § 1114, and trademark counterfeiting in violation of Title 15 U.S.C. § 1114(a). The plaintiffs filed the Amended Complaint naming, among others, as defendants Heliosbooks, Inc., Hamid Khan, Sharma Rajesh, YK Sharma, Bhagwat Prakash, Boosti, LLC, Oliver W. Chen, Siow Hong Chang, Meng Zhang, Manuj Oberoi, Patrick Medley (“Medley”), and Dilshad Saifi. These defendants failed to answer or otherwise respond to the complaint. Your Honor issued a default judgment and permanent injunction against them, and referred the matter to the undersigned to conduct an inquest and to report and recommend the amount of damages, if any, to be awarded against them. See Docket Entry No. 151. Thereafter, your Honor granted the plaintiffs' request to exclude Heliosbooks, Inc., from the inquest, see Docket Entry No. 153, and the plaintiffs dismissed their claims against Medley voluntarily, see Docket Entry No. 174. Therefore, this inquest will assess damages to be awarded against Hamid Khan (“Khan”); Sharma Rajesh, YK Sharma, Bhagwat Prakash (collectively, the “Sharma defendants”); Boosti, LLC (“Boosti”); Oliver W. Chen (“Chen”); Siow Hong Chang (“Chang”); Meng Zhang (“Zhang”); Manuj Oberoi (“Oberoi”); and Dilshad Saifi (“Saifi”).
The Court directed the plaintiffs to serve and file proposed findings of fact and conclusions of law and an inquest memorandum of law, accompanied by supporting affidavits and exhibits setting forth their proof of damages. The plaintiffs were directed to serve these documents on the defaulting defendants and to file proof of such service with the Clerk of Court. See Docket Entry No. 156. Before the Court are the plaintiffs' proposed findings of facts and conclusions of law; a memorandum of law in support of the damages inquest; the declaration of Matthew I. Fleischman (“Fleischman Declaration”), counsel to the plaintiffs; and the declaration of Michael Candore (“Candore Declaration”). See Docket Entry Nos. 157-60. The plaintiffs' inquest submissions are unopposed.
FACTUAL BACKGROUND
The following facts are taken from the plaintiffs' Proposed Findings of Facts and Conclusions of Law, which rely not only on the Amended Complaint and inquest materials, but also on declarations submitted by employee representatives of each of the plaintiffs (see declaration of Diane Peirano, Docket Entry No. 14; declaration of Steven Rosenthal, Docket Entry No. 15; declaration of Jessica Stitt, Docket Entry No. 16 (collectively, the “Publishers' Declarations”)), and by an employee of the plaintiffs' counsel (see declaration of Dan Seymour (“Seymour Declaration”), Docket Entry No. 13), and the exhibits thereto.
The plaintiffs are publishers of educational content in the form of physical and digital textbooks and online tools. The plaintiffs own the copyrights or exclusively control all rights, title, and interest in and to their respective works described in Exhibit A to the Amended Complaint (“Exhibit A”) and own or control exclusively all rights, title, and interest in and to their respective trademarks and service marks described in Exhibit B to the Amended Complaint (“Exhibit B”). The defendants operate the following online storefronts on Amazon.com (“Amazon”): Boosti LLC, operated by Boosti; Cameron's Treasures, operated by Chen and Chang; nightdream, operated by Zhang; ORCHIDSALES, operated by Oberoi; Atlantic Corner, operated by Khan; Books Deposit Worldwide f/k/a Fiedel Retails, operated by the Sharma defendants; and Tesco Link, operated by Saifi.
The defendants offered for sale and sold, through their storefronts on Amazon, what appeared to be copies of the plaintiffs' textbooks without the plaintiffs' permission, license, or consent. Prior to commencing this litigation, the plaintiffs made test purchases from the defendants' online storefronts of ten separate textbook titles. The defendants use the Fulfillment by Amazon service, meaning that they ship textbooks to Amazon's fulfillment centers for storage, and Amazon then fulfills orders on behalf of the defendants' storefronts. Upon receipt from Amazon of the test purchases, the plaintiffs confirmed that the textbooks were counterfeits. See Seymour Declaration (describing the process used by the plaintiffs to make the test purchases); Publishers' Declarations (describing the process used to confirm that the textbooks purchased as tests were counterfeits).
While the plaintiffs' inquest submissions refer to fourteen counterfeit titles, four of these were purchased from Medley's online storefront. As the plaintiffs have dismissed their claims against Medley, the Court excludes these t it les fro m this inquest.
Cengage purchased a counterfeit copy of one of its textbooks from Khan's storefront, Atlantic Corner. See Exhibit A. The plaintiffs contend that, despite having actual notice of the Temporary Restraining Order (“TRO”), see Docket Entry No. 3, and Preliminary Injunction (“PI”), see Docket Entry No. 46, entered in this case, Khan violated the TRO and PI by instructing Amazon to remove what purported to be 36 copies of a Cengage title from his inventory at Amazon's fulfillment center, before the plaintiffs could inspect them. See Fleischman Declaration. Cengage succeeded in inspecting its titles in what remained of Khan's inventory at the fulfillment center, and all 27 textbooks inspected were counterfeit. See Candore Declaration.
Cengage purchased a counterfeit copy of one of its textbooks from the Sharma defendants' online storefront, Books Deposit Worldwide. See Exhibit A. The plaintiffs contend that, despite having actual notice of the TRO and PI, the Sharma defendants instructed Amazon to remove what purported to be 14 copies of the plaintiffs' textbook titles from their inventory at Amazon's fulfillment center, before the plaintiffs could inspect them. See Fleischman Declaration. Cengage succeeded in inspecting its titles in what remained of the Sharma defendants' inventory at the fulfillment center, and all 64 textbooks inspected were counterfeit. See Candore Declaration.
The plaintiffs purchased counterfeit copies of four of their textbooks from Boosti's online storefront, Boosti, LLC. See Exhibit A. The plaintiffs contend that, despite having actual knowledge of the TRO and PI, Boosti instructed Amazon to remove what purported to be 34 copies of the plaintiffs' textbook titles from its inventory at Amazon's fulfillment center, before the plaintiffs could inspect them. See Fleischman Declaration. The plaintiffs succeeded in inspecting their titles in what remained of Boosti's inventory at the fulfillment center, and all 91 textbooks inspected were counterfeit. See Candore Declaration.
Pearson purchased a counterfeit copy of one of its textbooks from Chen and Chang's online storefront, Cameron's Treasures. See Exhibit A.
Pearson purchased a counterfeit copy of one of its textbooks from Zhang's storefront, nightdream. See Exhibit A. The plaintiffs contend that, despite having actual notice of the TRO and PI, Zhang instructed Amazon to remove what purported to be 343 copies of the plaintiffs' textbook titles from his inventory at Amazon's fulfillment center, before the plaintiffs could inspect them. See Fleischman Declaration. The plaintiffs succeeded in inspecting their titles in what remained of Zhang's inventory at the fulfillment center, and all 234 textbooks inspected were counterfeit. See Candore Declaration. The plaintiffs contend that Zhang sourced textbooks from “DHGate.com, a marketplace notorious for counterfeit goods, ” and that bank records indicate that Zhang is connected with Jianwei Wang, who is linked to the online storefront JellysightInc, which has continued to sell counterfeit copies of the plaintiffs' textbooks during the pendency of this action. See Fleischman Declaration.
Pearson purchased a counterfeit copy of one of its textbooks from Oberoi's storefront, ORCHIDSALES. See Exhibit A. The plaintiffs contend that, despite having actual knowledge of the TRO and PI, Oberoi instructed Amazon to remove what purported to be 308 copies of the plaintiffs' textbook titles from his inventory at Amazon's fulfillment center, before the plaintiffs could inspect them. See Fleischman Declaration. The plaintiffs succeeded in inspecting their titles in what remained of Oberoi's inventory at the fulfillment center, and all 66 textbooks inspected were counterfeit. See Candore Declaration.
McGraw-Hill purchased a counterfeit copy of one of its textbooks from Saifi's storefront, Tesco Link. See Exhibit A. The plaintiffs inspected Saifi's inventory of their titles in Amazon's fulfillment center, and all 14 textbooks inspected were counterfeit. See Candore Declaration.
LEGAL STANDARD
When a defendant defaults in an action by failing to plead or otherwise defend against a complaint, the defendant is deemed to have admitted every well-pleaded allegation of the complaint except those regarding damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). The burden is on the plaintiff to prove that it is entitled to the damages it seeks. Id. “Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true. The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citations omitted). Establishing the appropriate amount of damages involves two steps: (1) “determining the proper rule for calculating damages on . . . a claim”; and (2) “assessing plaintiff's evidence supporting the damages to be determined under this rule.” Id. When assessing damages, a court cannot “just accept [the plaintiff's] statement of the damages”; rather, damages must be established “with reasonable certainty.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997). The Second Circuit Court of Appeals has explained that damages must be established through admissible evidence. See House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010) (summary order).
Under the Copyright Act, the owner of a copyright that has been infringed “may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). Where the copyright owner proves to the satisfaction of a court that the “infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.” 17 U.S.C. § 504(c)(2). “The standard for willfulness is ‘whether the defendant had knowledge that [his] conduct represented infringement or perhaps recklessly disregarded the possibility.'” Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283, 288 (2d Cir. 1999) (quoting Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1382 (2d Cir.1993)). Willfulness also “may be established by a party's default because an innocent party would presumably have made an effort to defend itself.” Chloe v. Zarafshan, No. 06-CV-3140, 2009 WL 2956827, at *7 (S.D.N.Y. Sept. 15, 2009). When determining the amount of damages to award, “courts look to considerations such as: (1) ‘the expenses saved and the profits reaped'; (2) ‘the revenues lost by the plaintiff'; (3) ‘the value of the copyright'; (4) ‘the deterrent effect on others besides the defendant'; (5) ‘whether the defendant's conduct was innocent or willful'; (6) ‘whether a defendant has cooperated in providing particular records from which to assess the value of the infringing material produced'; and (7) ‘the potential for discouraging the defendant.'” Union of Orthodox Jewish Congregations of Am. v. Royal Food Distributors Ltd. Liab. Co., 665 F.Supp.2d 434, 436 (S.D.N.Y. 2009) (quoting Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., 807 F.2d 1110, 1117 (2d Cir.1986)).
Similarly, under the Lanham Act, when a defendant has used a counterfeit of a plaintiff's trademark, the plaintiff
may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits . . . an award of statutory damages for any such use in connection with the sale, offering for sale, or distribution of goods or services in the amount of-
(1) not less than $1,000 or more than $200,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just; or
(2) if the court finds that the use of the counterfeit mark was willful, not more than $2,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just.15 U.S.C. § 1117(c)(1)-(2).
“Although the Lanham Act does not provide guidelines for courts to consider in awarding statutory damages, courts look to the analogous provision of the Copyright Act, which gives the court wide discretion to determine what amount of damages should be awarded within the minimum and maximum bounds proscribed under the Lanham Act.” Coach, Inc. v. Allen, No. 11 Civ. 3590, 2012 WL 2952890, at *9 (S.D.N.Y. July 19, 2012). Courts in this Circuit consider the following factors when determining statutory damages under the Lanham Act: “(1) the expenses saved and the profits reaped; (2) the revenues lost by the plaintiff; (3) the value of the copyright; (4) the deterrent effect on others besides the defendant; (5) whether the defendant's conduct was innocent or willful; (6) whether a defendant has cooperated in providing particular records from which to assess the value of the infringing material produced; and (7) the potential for discouraging the defendant.” Philip Morris USA Inc. v. A & V Minimarket, Inc., 592 F.Supp.2d 669, 673 (S.D.N.Y. 2009) (internal quotation marks and citations omitted); see also Deckers Outdoor Corp. v. TKM Forest Hills, LLC, No. 12-CV-5986, 2014 WL 4536715, at *7 (E.D.N.Y. Sept. 11, 2014) (“Courts guided by 17 U.S.C. § 504(a) in awarding damages pursuant to Section 1117(c) have used the . . . factors [] based on Fitzgerald Publishing Company, Inc. v. Baylor Publishing Company, Inc.[] to determine the amount of statutory damages.”). Therefore, the analyses conducted to determine appropriate statutory damages under the Copyright Act and under the Lanham Act are largely the same.
APPLICATION OF LEGAL STANDARD
In the order entering default judgment and issuing a permanent injunction in this case, your Honor found the defendants liable for willful copyright infringement under 17 U.S.C. § 101 et seq and willful trademark infringement and counterfeiting under 15 U.S.C. § 1114. See Docket Entry No. 151. Therefore, the Court need not determine, as it assesses the appropriate amount of damages the plaintiffs are to recover for the defendants' copyright and trademark infringements, whether the defaulting defendants acted willfully.
The plaintiffs seek damages against each defendant separately, with the exception of Chen and Chang, joint operators of Cameron's Treasures Online, and the three Sharma defendants, joint operators of Books Deposit Worldwide. For each textbook title, the plaintiffs elected to recover statutory damages either under the Copyright Act, for copyright infringement, or under the Lanham Act, for trademark infringement, from each defendant or group of defendants. The plaintiffs do not seek statutory damages under both the Copyright Act and the Lanham Act for any one textbook title, as recovery under both Acts for any one infringed work is disfavored by courts in this Circuit. See Cengage Learning, Inc. v. Globonline SDN, No. 14 Civ. 3174, 2018 WL 1989574, at *2-3 (S.D.N.Y. Apr. 25, 2018) (collecting cases). Additionally, the plaintiffs seek statutory damages per imprint for each defendant, although some of the plaintiffs' trademarks are protected by multiple registrations.
Within the above parameters, the plaintiffs seek the maximum statutory damages from each defendant or group of defendants for each of the ten textbook titles identified by the plaintiffs as counterfeit as a result of their test purchases from the defendants' Amazon storefronts. See Exhibit A; Fleischman Declaration, Exhibit 1. Plaintiffs seek $150,000 per copyright infringement and $2,000,000 per trademark infringement, for a total of $18,150,000 in damages. The Court concludes that while a high statutory damages award is appropriate, the requested amount would be excessive.
As noted above, your Honor found that the defendants' conduct was willful in your order granting default judgment. See Docket Entry No. 151. Moreover, the defendants' willfulness is established through their default in this action. See Chloe, 2009 WL 2956827, at *7. This factor weighs in favor of a high award of statutory damages.
The remaining relevant factors are the expenses saved and the profits reaped by the defendants, the revenues lost by the plaintiffs, the value of the copyright and trademarks, whether the defendants have cooperated in providing particular records from which to assess the value of the infringing material produced, and the deterrent effect on the defendants and others.
No evidence in the record exists regarding the expenses saved and profits reaped by the defendants or regarding the revenue lost by the plaintiffs. The plaintiffs bought ten counterfeit textbooks from the defendants at below market prices, but argue that “full discovery would very likely have shown that these counterfeits were just the tip of the iceberg.” This, of course, is just conjecture. The plaintiffs contend that “it is clear that [the defendants] reaped a substantial sum of money from their infringing business” and that “there is no doubt that [the defendants'] infringing activity steals the fruits of [the plaintiffs'] and their authors' creative effort and monetary investment.” The Court sees no reason to disagree with these general assertions about the creative efforts and monetary investments of the plaintiffs and their authors. However, the record lacks evidence sufficient to show that the defendants gained large profits from sales of the ten works at issue that would support an award of the maximum statutory damages possible; nor is there any evidence in the record of the amount of expenses saved by the defendants, although the plaintiffs assert that the defendants “avoided the very considerable expense associated with publishing a textbook.” Furthermore, the plaintiffs have not put forth any evidence from which the Court can quantify the revenue lost by the plaintiffs as a result of the defendants' infringing conduct. Therefore, these factors do not support an award of the maximum statutory damages. See McGraw-Hill Glob. Educ. Holdings, LLC v. Khan, No. 16 Civ. 9030, 2020 WL 4746570, at *6 (S.D.N.Y. Aug. 17, 2020) (declining to award maximum statutory damages for copyright infringement when “the record . . . lacks evidence sufficient to show that [the defendants] enjoyed the type of enormous profit from their infringing activities that would justify statutory damages at the highest possible level” and “[the plaintiffs] have not submitted evidence of how much revenue they lost as a result of [the defendants'] infringement, nor have they submitted evidence of how much [the defendants] saved.”); Cengage Learning, Inc. v. Shi, No. 13 Civ. 7772, 2017 WL 1063463, at *4 (S.D.N.Y. Mar. 21, 2017) (declining to award maximum statutory damages when “there had been no showing of any actual decline in [the plaintiff's] sales.”).
The plaintiffs have not put forward evidence of the value of their copyrights and marks, but merely assert that their copyrighted works and trademarks are “undeniably very valuable” as a result of their reputations and the substantial investments they make in publishing, advertising, and promoting their textbooks. With no evidence in the record from which the Court can quantify the value of the copyrights and marks, this factor militates against awarding the maximum statutory damages.
On the other hand, the defendants' lack of cooperation weighs toward a higher statutory damages award, as “defendants' default and subsequence silence shows a lack of cooperation in determining damages.” Hollander Glass Texas, Inc. v. Rosen-Paramount Glass Co., 291 F.Supp.3d 554, 559 (S.D.N.Y. 2018).
In fashioning an award, the Court must consider the deterrent effect the award would have on the defendants as well as on others. The statutory damages awarded in this case ought to act as a specific deterrent to defendants as well as a deterrent to such conduct by third parties, given that “courts have repeatedly emphasized that defendants must not be able to sneer in the face of copyright owners and copyright laws.” Tu v. TAD Sys. Tech. Inc., No. 08-CV-3822, 2009 WL 2905780, at *6 (E.D.N.Y. Sept. 10, 2009) (quoting New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 1991 WL 113283, at *6 (S.D.N.Y. June 14, 1991)).
While a high statutory damages award is warranted, the plaintiff's requested award of maximum statutory damages of $150,000 per copyright infringement and $2,000,000 per trademark infringement is, in the circumstance of this case, excessive. As noted above, no evidence exists in the record here that the defendants have gained high revenues or profits through infringement, and no evidence exists of the value of the copyrights and marks. Moreover, while the plaintiffs argue that a higher award is warranted because certain of the defendants violated the TRO and PI, the plaintiffs have not put forth competent evidence showing this. The plaintiffs rely on the Fleischman Declaration, in which the plaintiffs' attorney alleges that Khan, the Sharma defendants, Boosti, Zhang, and Oberoi instructed Amazon to remove copies of the plaintiffs' textbooks from their inventories at Amazon's fulfillment center in violation of the TRO and PI. Although Fleischman asserts that he makes the statements in his declaration “based on personal knowledge and/or [his] review of the documents and information referenced herein, ” nothing in his declaration establishes that he indeed has personal knowledge of the defaulting defendants' communications with Amazon regarding their inventory. Nor is there any competent evidence in the record from an Amazon representative(s) establishing these facts. There is similarly nothing in Fleischman's declaration that establishes that he has personal knowledge that Zhang sourced textbooks from “DHGate.com, a marketplace notorious for counterfeit goods, ” or that Zhang is connected with an online storefront that has sold counterfeit textbooks during the pendency of this action. Without competent evidence establishing these facts, the Court cannot consider this alleged misconduct in fashioning its damages award.
In support of their contention that “[c]ourts in this District do not hesitate to award the maximum in statutory damages for willful infringement when appropriate, ” the plaintiffs make citation to orders in similar cases awarding maximum statutory damages for copyright infringement and trademark infringement. However, most of these orders do not contain analyses of the factors relevant to a determination of damages or otherwise explain the bases for the awards granted. See Default Judgment and Permanent Injunction, McGraw-Hill Global Educ. LLC v. Turcios, No. 17-cv-6222 at 5 (S.D.NY. Jan. 22, 2019) (Docket Entry No. 171); Default Judgment and Permanent Injunction, McGraw-Hill Global Educ. LLC v. Peng, No. 17-cv-6224 at 4 (S.D.N.Y. Jan. 5, 2018) (Docket Entry No. 58); Default Judgment and Permanent Injunction, McGraw-Hill Global Educ., LLC v. Jarrad, No. 15-cv-2579 at 3 (S.D.N.Y. Jan. 8, 2016) (Docket Entry No. 52); Default Judgment and Permanent Injunction Against Defendants, Elsevier, Inc. v. Kozlov, No. 14-cv-2422 at 3 (S.D.N.Y. Apr. 13, 2015) (Docket Entry No. 58). In the Default Judgment and Permanent Injunction entered in Cengage Learning, Inc. v. Doe 1 d/b/a bargainsofmaine, No. 18-cv-403 at 4 (S.D.N.Y. May 11, 2018) (Docket Entry No. 52), the court makes citation to Fitzgerald Publishing Co., Inc. in support of its finding that “an award of the statutory maximum damages is appropriate to accomplish the dual goals of compensation and punishment and, in particular, to emphasize that the trademark laws and court proceedings are not mere incidental costs to doing business in the profitable counterfeit trade.” However, the court does not address the Fitzgerald Publishing Co., Inc. factors. Accordingly, the Court declines to rely on these orders in the instant case.
The plaintiffs seek copyright damages only against defendant Boosti, for one textbook title. In McGraw-Hill Global Education Holdings, LLC, a case with some of the same plaintiffs as exist in the instant action, the court awarded statutory damages of $100,000 per copyright infringement when the defendants' conduct was willful, yet “[the plaintiffs] have not submitted evidence of how much revenue they lost as a result of [the defendants'] infringement, nor have they submitted evidence of how much [the defendants] saved” and “[the plaintiffs] have not demonstrated that [the defendants] continued to infringe [the plaintiffs'] copyrights after the commencement of this litigation or in violation of any court order.” McGraw-Hill Glob. Educ. Holdings, LLC, 2020 WL 4746570, at *6. In the instant case, as noted above, while Boosti's infringement was willful, there is no evidence of the revenue lost by the plaintiffs or the expenses saved by the defendants. After considering the relevant factors, mindful of the need to fashion an award with deterrent effect, the Court finds a statutory damages award of $100,000 for Boosti's copyright infringement in this case to be appropriate.
The plaintiffs seek damages under the Lanham Act for infringement of one trademark each against Khan, the Sharma defendants, Chen and Chang, Zhang, Oberoi, and Saifi, and damages for infringement of three trademarks against Boosti. “Most judges have issued awards far below the statutory maximum . . . where the defendant willfully infringes on the plaintiff's mark and fails to stop such behavior after being put on notice by the plaintiff or the court, but where there is no concrete information about the defendant's actual sales figures and profits and the estimate of plaintiff's lost revenue.” All-Star Mktg. Grp., LLC v. Media Brands Co., 775 F.Supp.2d 613, 624 (S.D.N.Y. 2011). See also Pitbull Prods., Inc. v. Universal Netmedia, Inc., No. 07 Civ. 1784, 2007 WL 3287368, at *4 (S.D.N.Y. Nov. 7, 2007) (awarding damages of $250,000 per trademark infringement when there was “no record whatsoever regarding the nature of the defendants' infringement, estimates of the defendants' earnings, or possible losses to [the plaintiff] arising from the defendants' conduct” and noting that “[c]ourts have awarded similar damages in other cases in which there was little information as to the defendants' infringement.”) The record before the Court lacks competent evidence showing that any of the defendants failed to stop infringing the plaintiffs' marks after being put on notice or otherwise violated a court order. After considering the relevant factors, mindful of the need to fashion an award with deterrent effect, the Court finds an award of $200,000 per trademark infringement to be appropriate.
RECOMMENDATION
For the reasons set forth above, the Court recommends that the plaintiffs be awarded damages against the defaulting defendants in the following amounts:
Hamid Khan $200,000
Sharma Rajesh, YK Sharma, and Bhagwat Prakash $200,000 Boosti, Inc. $700,000
Oliver W. Chen and Siow Hong Chang $200,000
Meng Zhang $200,000
Manuj Oberoi $200,000
Dilshad Saifi $200,000
The sum of all damages is $1,900,000.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).