Opinion
1:20-cv-09782 (JGK) (SDA)
07-30-2021
Qlay Co., Plaintiff, v. Angels in Tales Store et al., Defendants.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE:
This is an action in which Plaintiff Qlay Co. (“Plaintiff” or “Qlay”) alleges claims against Defendants, including those Defendants that have defaulted, for trademark infringement and counterfeiting of Plaintiff's federally registered trademark, false designation of origin, passing off, unfair competition and related state and common law claims. (See Compl. ¶¶ 42-80.) After the Defaulting Defendants failed to respond to an Order to Show Cause why a Default Judgment should not be entered, and the Court found that Plaintiff was entitled to a default judgment, this action was referred to me for an inquest to recommend the appropriate judgment. (See 6/22/21 Order, ECF No. 26; Order of Reference, ECF No. 25.)
Defendants are merchants on the Alibaba and/or AliExpress online marketplace platforms. (Compl., ECF No. 6, ¶ 6.)
The Defendants that have defaulted are Angels in tales Store, AustinJuly Store, Awaty Lither Store, Backpack shop24 Store, COS BAG MADE Store, gao shang Store, GD002 Store, Hitstars Store, HOCLOCE Store, Kingcos Store, k-pop Officiall Store, Lisa discount store Store, livecustom Store, loved baby, Luckyshop Store, Shop3626118 Store, Shop5004150 Store, Shop5004496 Store, Shop5060072 Store, Shop5074023 Store, Shop5422025 Store, Shop5586026 Store, Shop5778107 Store, Shop5881873 Store, Shop900235162 Store, Shop900253394 Store, Shop910413010 Store, Shop910552316 Store, Shop910559300 Store, Shop910565351 Store, Shop910717076 Store, Shop910759013 Store, Shop910760026 Store, Shop910767007 Store, Shop910770013 Store, Shop910863009 Store, Shop910895008 Store, Shop910896015 Store, Shop910904046 Store, Shop910919024 Store, Shop910922015 Store, Shop910940069 Store, Shop910951030 Store, Shop910959005 Store, Shop910959006 Store, Shop910966066 Store, Shop910980069 Store, Shop910986013 Store, Shop911027044 Store, Shop911038119 Store, Shop911039036 Store, Shop911039159 Store, Shop911040137 Store, Shop911044146 Store, Shop911046144 Store, Shop911049121 Store, Shop911051112 Store, Shop911051151 Store, Shop911054143 Store, Shop911055157 Store, Shop911056077 Store, Shop911056143 Store, Shop911059115 Store, Shop911064135 Store, Shop911065030 Store, Shop911068059 Store, Surprise House Store, Trendy-A clothes Store, ymx Store, yongcun NO01 Store and ypodscustom Store (hereinafter referred to as the “Defaulting Defendants”). (See Ex. C to Futterman 7/14/21 Aff., ECF No. 31-3.)
For the reasons set forth below, I recommend an award of statutory damages in the amount of $50,000.00 against each of the Defaulting Defendants, for a total of $3,550,000.00, plus post-judgment interest. I further recommend that a permanent injunction be entered in Plaintiff's favor.
PROCEDURAL HISTORY
On November 20, 2020, Plaintiff filed this action against Defendants for trademark infringement and counterfeiting of Plaintiff's federally registered trademark, false designation of origin, passing off, unfair competition and related state and common law claims. (See Scully 4/1/21 Aff., ECF No. 20, ¶ 9.) Plaintiff moved ex parte for an order to seal the court file, a temporary restraining order (“TRO”), an order restraining certain merchant storefronts and Defendants' assets with certain financial institutions, an order to show cause why a preliminary injunction (“PI”) should not issue, an order authorizing bifurcated and alternative service and an order authorizing expedited discovery. (See id.) On November 20, 2020, the Court granted Plaintiff's application and entered the TRO. (See Id. ¶ 11.)
The TRO required Defendants to appear on December 2, 2020 at the PI show cause hearing. (See Scully 4/1/21 Aff. ¶ 12.) The TRO provided for alternative methods of service on Defendants of the Summons, Complaint, TRO and all documents filed in support of Plaintiff's application. (See Id. ¶ 13.) On November 27, 2020, pursuant to the methods of alternative service authorized by the TRO, Plaintiff served on each Defendant all the required papers. (See Id. ¶ 14.)
As such, Defendants had until December 18, 2020 to respond to the Complaint. (See Scully 4/1/21 Aff. ¶ 15.)
On December 2, 2020, Plaintiff appeared at the PI show cause hearing, but no Defendant appeared. (See Scully 4/1/21 Aff. ¶ 16.) On the same day, December 2, 2020, the Court entered the PI Order against all Defendants mirroring the terms of the TRO and extending through the pendency of the action. (See Id. ¶ 17; see also PI Order, ECF No. 4, at 1.) On December 10, 2020, pursuant to the alternative methods of service authorized in both the TRO and PI Order, Plaintiff served the PI Order on each Defendant. (See Scully 4/1/21 Aff. ¶ 18.)
On March 23, 2021, Plaintiff requested an entry of default against the Defaulting Defendants from the Clerk of Court. (See Scully 4/1/21 Aff. ¶ 19.) On March 23, 2021, the Clerk of Court entered a Certificate of Default against the Defaulting Defendants. (Cert. of Default, ECF No. 18.) Thereafter, none of the Defaulting Defendants filed an answer with the Court, responded to the Complaint or otherwise appeared in this action. (See Scully 4/1/21 Aff. ¶ 21.)
On April 1, 2021, Plaintiff filed its application for a Default Judgment against the Defaulting Defendants. (See Futterman 7/14/21 Aff., ECF No. 31, ¶ 6.) On May 14, 2021, the Court entered an Order to Show Cause why a default judgment and a permanent injunction should not be entered against the Defaulting Defendants. (5/14/21 Order, ECF No. 23.)
By Order dated June 22, 2021, Judge Koeltl found that Plaintiff was entitled to a Default Judgment against the Defaulting Defendants, and referred this action to me for an inquest to determine the appropriate judgment. (See 6/22/21 Order.) On June 23, 2021, I issued an Order requiring Plaintiff to serve and file by July 14, 2021 proposed findings of fact and conclusions of law concerning all damages and any other monetary relief sought, and requiring the Defaulting Defendants to serve and file their responses by July 28, 2021. (6/23/21 Order, ECF No. 27, ¶¶ 1, 4.) That Order also stated:
The Court hereby notifies the parties that it may conduct this inquest based solely upon the written submissions of the parties. See Bricklayers & Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (quoting Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991)); Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citation omitted). To the extent that any party seeks an evidentiary hearing on the issue of damages, such party must set forth in its submission the reason why the inquest should not be conducted based upon the written submissions alone, including a description of what witnesses would be called to testify at a hearing and the nature of the evidence that would be submitted.(Id. ¶ 5.)
Plaintiff timely filed, on July 14, 2021, its proposed findings of fact (see Pl.'s FOF, ECF No. 30), as well as a supporting Affidavit of Danielle (Yamali) Futterman (see Futterman 7/14/21 Aff.) and a supporting memorandum of law. (Pl.'s 7/14/21 Mem., ECF No. 32.) On July 21, 2021, proof of service of these documents was filed. (Cert. of Service, ECF No. 34.)
Plaintiff's recently submitted memorandum of law only addresses the amount of damages sought, and not any other relief requested. (See Pl.'s 7/14/21 Mem. at 3-9.) However, the memorandum of law it initially submitted in support of a default judgment also sought other relief, including a permanent injunction, a post-judgment asset restraint and the transfer of the Defaulting Defendants' frozen assets. (See Pl.'s 4/1/21 Mem., ECF No. 21.) Following an Order entered by me on July 19, 2021 with respect to the relief sought (see 7/19/21 Order, ECF No. 33), Plaintiff withdrew its request for a post-judgment asset restraint and transfer, as well as temporary continuance of the pre-judgment asset restraint, indicating that it instead intended to serve restraining notices pursuant to CPLR § 5222. (Pl.'s 7/26/21 Ltr., ECF No. 35.)
No Defaulting Defendant has made any written submissions, nor has any Defaulting Defendant contacted my chambers in any fashion. Plaintiff has not requested an evidentiary hearing on the issue of damages. Because Plaintiff's inquest submissions provide a basis for damages, no hearing was required. See Bricklayers & Allied Craftworkers Local 2, 779 F.3d at 189.
To the extent that any finding of fact reflects a legal conclusion, it shall to that extent be deemed a conclusion of law, and vice versa.
The following findings of fact are based on the allegations contained in Plaintiff's Complaint and the evidence submitted by Plaintiff in support of its application for a default judgment:
In light of the Defaulting Defendants' default, the Court is required to accept all of Plaintiffs' allegations as true, except for those pertaining to damages. See, e.g., Finkel v. Romanowicz, 577 F.3d 79, 83 n.6 (2d Cir. 2009).
I. Qlay And Its Content And Products
Qlay established the Chad Wild Clay (“CWC”) YouTube Channel in 2010 that has 12.5 million subscribers and has surpassed 3 billion views. (Compl. ¶ 7; Clay 12/2/20 Decl., ECF No. 11, ¶ 3.) This YouTube channel is best known for its action, adventure and mystery videos starring Chad Wild Clay and Vy Qwaint. (Id.) Qlay has developed a variety of consumer products, including mobile games and toys, t-shirts, hoodies, backpacks and other gear, which it sells through the Official Spy Ninjas Store at https://www.spyninjasstore.com/ (the “CWC Products”). (Compl. ¶ 9; Clay 12/2/20 Decl. ¶ 5.) All CWC Products bear a red design mark incorporating swords (the “CWC Mark”). (Id.) Qlay owns U.S. Trademark Registration No. 6, 012, 760 for the CWC Mark for a variety of goods in Classes 9, 14, 16, 18, 22, 25 and 35. (Compl. ¶ 12; Clay 12/2/20 Decl. ¶ 8.)
Qlay has engaged in significant marketing and promotional efforts, including advertising and promotion through social media, the CWC YouTube Channel, and other internet-based and print advertising, both domestically and abroad. (See Compl. ¶ 14; Clay 12/2/20 Decl. ¶ 10.) Qlay uses high quality materials and processes in making the CWC Products. (Compl. ¶ 15; Clay 12/2/20 Decl. ¶ 11.) Due to Qlay's efforts, the quality of the CWC Products and the popularity of the CWC Content, members of the public and retailers have become familiar with the CWC Mark and CWC Products and have come to associate them exclusively with Qlay. (Compl. ¶ 17; Clay 12/2/20 Decl. ¶ 13.) Qlay has acquired a valuable reputation and goodwill among the public as a result of such association. (Id.)
Qlay has gone to great lengths to protect its interests to the CWC Products and the CWC Mark. (Compl. ¶ 19; Clay 12/2/20 Decl. ¶ 14.) No. one other than Qlay and its authorized licensees and distributors are authorized to manufacture, import, export, advertise, offer for sale or sell any goods utilizing the CWC Mark, or use the CWC Mark in connection with goods or services or otherwise, without the express permission of Qlay. (Id.)
II. Defaulting Defendants' Unlawful Counterfeiting And Infringing Conduct
Alibaba and AliExpress maintain online marketplace platforms that allow third-party merchants, like the Defaulting Defendants, to advertise, distribute, offer for sale, sell and ship their retail products originating from China directly to consumers worldwide and specifically to consumers residing in the U.S., including New York. (See Compl. ¶¶ 20-21; Drangel 12/2/20 Decl., ECF No. 12, ¶ 3.) The Defaulting Defendants are individuals and/or businesses, who are located in China, but conduct business in the U.S. and other countries by means of user accounts and merchant storefronts on Alibaba and/or AliExpress. (See Compl. ¶ 23; Drangel 12/2/20 Decl. ¶ 3.) Through their merchant storefronts on Alibaba and/or AliExpress, without Qlay's authorization or consent, the Defaulting Defendants were and/or are manufacturing, importing, exporting, advertising, marketing, promoting, distributing, displaying, offering for sale and/or selling counterfeit CWC Products, including for shipment into the U.S. (Compl. ¶¶ 24, 27-40; Clay 12/2/20 Decl. ¶ 17; Drangel 12/2/20 Decl. ¶¶ 18-27.)
LEGAL STANDARDS
I. Damages
Under the Lanham Act, at any time before final judgment is entered, a trademark owner may elect to recover an award of statutory damages, rather than actual damages, in cases of infringement. 15 U.S.C. § 1117(c), (d). Statutory damages particularly are appropriate where actual damages are difficult to calculate. See Bus. Trends Analysts, Inc. v. Freedonia Grp., Inc., 887 F.2d 399, 406 (2d Cir. 1989). Indeed, the rationale underlying the Lanham Act's statutory damages framework “is the practical inability to determine profits or sales made by counterfeiters.” All-Star Mktg. Grp., LLC v. Media Brands Co., Ltd., 775 F.Supp.2d 613, 620-21 (S.D.N.Y. 2011) (citing Bus. Trends Analysts, Inc., 887 F.2d at 406); see also Sara Lee Corp. v. Bags of New York, Inc., 36 F.Supp.2d 161, 165 (S.D.N.Y. 1999) (“Statutory damages are most appropriate when infringer nondisclosure during fact finding leaves damages uncertain. This problem motivated the enactment of § 1117(c)[.]”).
For the use of a counterfeit mark, a court may award statutory damages 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 use of the counterfeit mark is found to be willful, up to “$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). “District courts have wide discretion in awarding statutory damages.” Malletier v. Artex Creative Int'l Corp., 687 F.Supp.2d 347, 355 (S.D.N.Y. 2010).
Under Section 1117(c)(2), the Lanham Act provides for enhanced statutory damages when the use of the counterfeit mark was willful. “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)); see also Yurman Studio, Inc. v. Castaneda, 591 F.Supp.2d 471, 503 (S.D.N.Y. 2008) (quoting NFL v. PrimeTime 24 Joint Venture, 131 F.Supp.2d 458, 475 (S.D.N.Y. 2001)) (stating that willfulness can be measured by a defendant's “‘reckless disregard of the high probability' that it was infringing”). Such knowledge may be actual or constructive and may be inferred from a defendant's conduct rather than proven directly. See N.A.S. Imp., Corp. v. Chenson Ents., Inc., 968 F.2d 250, 252 (2d Cir. 1992) (holding that “for the purpose of awarding enhanced statutory damages, ” the knowledge component of willfulness “need not be proven directly but may be inferred from the defendant's conduct”).
Section 1117(c)(2) instructs courts to award a “just” amount and establishes a cap on the award; it provides no further guidance on determining damages. See All-Star Mktg. Grp., 775 F.Supp.2d at 621-22 (citing Malletier v. Carducci Leather Fashions, Inc., 648 F.Supp.2d. 501, 504 (S.D.N.Y. 2009)). Courts in this district have sought guidance from the analogous statutory damages provision in the Copyright Act, 17 U.S.C. § 504(c), which contemplates that a finding of willfulness should result in damages that are both compensatory and, as a deterrent, punitive. See Id. at 622 & n.5 (citing cases); Sara Lee Corp., 36 F.Supp.2d at 166-67 (“The Copyright Act is not only similar in principle to the Trademark Act but identical in much of its statutory damages language. . . . [I]n interpreting Copyright Act language parallel to that in . . . 15 U.S.C. § 1117(c), the Second Circuit has held that uncapped statutory damages . . . may be punitive as necessary to deter the defendants, to deter others, and to redress wrongful litigation conduct.”). Relevant factors for determining the damages under Section 1117(c)(2) include:
(1) the expenses saved and the profits reaped; (2) the revenues lost by the plaintiff; (3) the value of the [trademark]; (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.All-Star Mktg. Grp., 775 F.Supp.2d at 622-23 (citations omitted). Statutory damages typically are awarded in an amount per trademark per type of goods, with “type of goods” defined by “the functional purpose of the product.” Gucci Am., Inc. v. MyReplicaHandbag.com, No. 07-CV-02438 (JGK) (DFE), 2008 WL 512789, at *4 (S.D.N.Y. Feb. 26, 2008) (listing the examples of handbags, eyeglasses and belts).
II. Injunctive Relief
To obtain a permanent injunction, Qlay “must demonstrate (1) actual success on the merits, and (2) irreparable harm.” Gucci America, Inc. v. Duty Free Apparel, Ltd., 286 F.Supp.2d 284, 290 (S.D.N.Y. 2003). To prevail on the merits of a trademark infringement claim, a plaintiff must prove that (1) it has legally protectable trademarks, and (2) defendants' misuse of the trademarks creates a likelihood of confusion among customers. See The Sports Auth., Inc. v. Prime Hosp. Corp., 89 F.3d 955, 960 (2d Cir. 1996); Lorillard Tobacco Co. v. Jamelis Grocery, Inc., 378 F.Supp.2d 448, 454 (S.D.N.Y. 2005).
CONCLUSIONS OF LAW
The Court makes the following conclusions of law after carefully considering Plaintiff's written submissions:
I. Plaintiff Is Entitled To Statutory Damages Based Upon Willfulness
In its inquest submissions, Qlay has elected to seek statutory damages under the Lanham Act. (Pl.'s 7/14/21 Mem. at 3-8.) The Court finds Qlay's request for statutory damages, in lieu of actual damages, appropriate given that (1) the Defaulting Defendants have produced no records on which the Court could calculate actual damages, and (2) the Defaulting Defendants engaged in willful conduct. Regarding this second point, the Court deems the Defendants' default and subsequent failure to participate in this inquest as an admission that their use of the counterfeit marks was willful under the Lanham Act standard. See Malletier, 648 F.Supp.2d. at 504 (citing Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993)) (“Here, by virtue of its default, [the defendant] has admitted [the plaintiff's] allegation that it acted knowingly and intentionally or with reckless disregard or willful blindness to [the plaintiff's] rights.”); All-Star Mktg. Grp., 775 F.Supp.2d at 621-22 (“Defendants have defaulted . . . and by virtue of their default are deemed to be willful infringers.”) (collecting cases).
Qlay is not seeking to recover attorneys' fees. (Futterman 7/14/21 Decl. ¶ 18.)
The seven factors that courts have considered in assessing statutory damages under the Lanham Act all favor Qlay or give rise to a reasonable inference in Qlay's favor. The first and second factors, i.e., the expenses saved and the profits reaped by the Defaulting Defendants as a result of their infringement and the revenues lost by Plaintiff, are unknown. Thus, the Court resolves any uncertainty in favor of Qlay so as not to allow the Defaulting Defendants to benefit from their lack of participation in this litigation. See Philip Morris USA Inc. v. A & V Minimarket, Inc., 592 F.Supp.2d 669, 674 (S.D.N.Y. 2009) (in trademark infringement suit, where defendants fail to respond to complaint or to papers seeking a default judgment and provide no information relating to their circumstances, “the Court draws every reasonable inference on these points against the defendants”); Sara Lee Corp., 36 F.Supp.2d at 169 (“The Second Circuit instructs that in determining infringement damages, courts are to resolve against the defendants any factual uncertainties, such as whether any portion of the defendants' revenue may be deducted from damages, when the defendants left the uncertainty by not responding to the evidence of counterfeit sales with evidence of their own.”).
Regarding the third factor, the Court finds Qlay's trademark to be highly valuable. Qlay established that its CWC Products have achieved commercial success as a result of its efforts in building up and developing consumer recognition, awareness and goodwill in its CWC Products and CWC Mark. (See Clay 12/2/20 Decl. ¶¶ 10-15.) Thus, the Court can “infer from the well-known reputations of most or all of the trademarks and the sea of advertising that presses them on the consciousness of the buying public that they are indeed valuable.” Lane Crawford LLC v. Kelex Trading (CA) Inc., No. 12-CV-09190 (GBD) (AJP), 2013 WL 6481354, at *4 (S.D.N.Y. Dec. 3, 2013) (citations omitted).
Factors four and seven, which relate to deterring the conduct of the Defaulting Defendants and others, weigh in Qlay's favor. “The need to deter other counterfeiters is particularly compelling given the apparent extent of counterfeit activity . . ..” Bumble & Bumble, LLC v. Pro's Choice Beauty Care, Inc., No. 14-CV-6911 (VEC) (JLC), 2016 WL 658310, at *5 (S.D.N.Y. Feb. 17, 2016). A substantial award is necessary to discourage the Defaulting Defendants from continuing to engage in their illicit conduct. In addition, the Defaulting Defendants' willful misconduct and failure to appear in this litigation merit a finding that “a slight damage award is unlikely to deter them from continuing their illegal business.” See Louis Vuitton Malletier, S.A. v. LY USA, No. 06-CV-13463 (AKH), 2008 WL 5637161, at *2 (S.D.N.Y. Oct. 3, 2008) (citations omitted).
With respect to the fifth factor, “by virtue of their default [defendants] are deemed to be willful infringers.” Lane Crawford LLC, 2013 WL 6481354, at *3 (collecting cases); accord Tiffany (NJ) Inc. v. Luban, 282 F.Supp.2d 123, 124 (S.D.N.Y. 2003). With respect to the sixth factor, the Defaulting Defendants have failed to participate in this litigation, and thus have deprived Qlay of any records from which to assess the value of the infringing materials. Thus, the above seven factors justify a substantial award of statutory damages under Sections 1117(c) and (d).
The requested statutory damage award of $50,000.00 per Defaulting Defendant is reasonable when considering not only the factors outlined above, but also that the amount sought against each Defaulting Defendant is well below the maximum award of $2,000,000.00 that could be assessed against each of them for willful counterfeiting, and well within the range to awards granted by courts in this district in similar circumstances. See All-Star Mktg. Grp., LLC, 775 F.Supp.2d at 624 (collecting cases awarding between $25,000.00 and $250,000.00 per mark).
See also cases cited in Plaintiff's 7/14/21 Mem. at 8-9 n.6.
II. A Permanent Injunction Should Be Entered In Favor Of Qlay
Qlay has established success on the merits because the Defendants' default constitutes an admission of liability. See Pitbull Prods., Inc. v. Universal Netmedia, Inc., No. 07-CV-01784 (RMB) (GWG), 2007 WL 3287368, at *6 (S.D.N.Y. Nov. 7, 2007). Qlay also has established irreparable injury as, in a trademark action, “irreparable injury is established where there is any likelihood that an appreciable No. of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.” Lobo Enters., Inc. v. Tunnel, Inc., 822 F.2d 331, 333 (2d Cir. 1987). Generally, a Court must examine the factors set forth in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961), to determine whether there is a sufficient likelihood of consumer confusion; “[h]owever, where counterfeit marks are involved, the court need not engage in a Polaroid analysis because counterfeit marks are inherently confusing.” Fendi Adele S.R.L. v. Burlington Coat Factory Warehouse Corp., 689 F.Supp.2d 585, 596-97 (S.D.N.Y. 2010) (internal quotation marks omitted). The Court finds that the Defaulting Defendants sold counterfeit items bearing Qlay's trademark, thus constituting a likelihood of confusion. Because Qlay has satisfied the requirements of success on the merits and irreparable harm, the Court recommends that Qlay's request for a permanent injunction be granted. The Court already has entered a preliminary injunction with provisions designed to prevent the Defaulting Defendants from further infringing. (See PI Order.) The terms of the preliminary injunction should be continued on a permanent basis.
CONCLUSION
For the foregoing reasons, the Court recommends that Plaintiff be awarded damages in the amount of $50,000.00 against each of the Defaulting Defendants, for a total of $3,550,000.00, and that Plaintiff be awarded post-judgment interest pursuant to 28 U.S.C. § 1961. The Court also recommends that a permanent injunction be entered in Plaintiff's favor.
No later than August 2, 2021, Plaintiff shall serve this Report and Recommendation upon the Defaulting Defendants pursuant to the alternative methods of service authorized in the TRO and PI Order, and shall file proof of service on the ECF docket.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Koeltl.
THE FAILURE TO FILE THESE TIMELY OBJECTIONS WILL RESULT IN A WAIVER OF THOSE OBJECTIONS FOR PURPOSES OF APPEAL. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).