Opinion
Case No. 2:10-cv-01241-JCM-RJJ.
February 10, 2011
Mark G. Tratos (Bar No. 1086), Donald L. Prunty (Bar No. 8230), Ronald D. Green Jr. (Bar No. 7360), GREENBERG TRAURIG, LLP, Las Vegas, Nevada, Counsel for Plaintiff.
ORDER FOR DEFAULT JUDGMENT AGAINST GREEN AIR DIRECT, INC.
An application having been duly made by Plaintiff D.P.L. Enterprises, Inc. d/b/a Air-Care ("Plaintiff"), for default judgment against Defendant Green Air Direct ("Defendant") pursuant to Rule 55 of the Federal Rules of Civil Procedure; the Defendant having failed to respond to, or answer, Plaintiff's Complaint previously served upon Defendant; the default having been entered by the Clerk of the Court for failure to answer or otherwise defend as to Plaintiff's Complaint; and it appearing that Defendant is neither an infant nor an incompetent person nor in the military service of the United States, and with good cause appearing therefore,
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that judgment is entered in favor of Plaintiff against Defendant on all claims, and, it is further ordered and adjudged that such judgment shall include the following specific findings of fact and award of specific relief:
(a) Plaintiff is the owner of a certain AIR-CARE INDOOR QUALITY SPECIALISTS trademark (U.S. Registration No. 2,581,421) used in relation with the sale and distribution of air filters and for other goods and services, as identified in the Complaint;
(b) Plaintiff holds the copyright to its brochures promoting its Anti-Microbial Electrostatic Air Filters ("Brochures");
(c) Defendant is Plaintiff's direct competitor and sells its products online at www.greenairdirect.com;
(d) Defendant substantially copied the Brochures and distributed the infringing brochures to Defendant's existing and potential customers, including Plaintiff's customers;
(e) Plaintiff created its own custom size filter label ("Label");
(f) Defendant substantially copied the Label and was distributing the infringing label on its products to Defendant's existing and potential customers, including Plaintiff's customers;
(g) Plaintiff holds the copyright to its website, www.air-care.com;
(h) Defendant substantially copied Plaintiff's website;
(i) Plaintiff holds a copyright to the customized online shopping cart on its website;
(j) Defendant copied Plaintiff's online shopping cart for use on Defendant's website, including the copying of Plaintiff's customer service phone number as confirmation of a sales transaction on Defendant's online shopping cart;
(k) Defendant's copying of Plaintiff's brochures, labels, web sites and online shopping cart is likely to cause confusion as to the source and origin of Defendant's services;
(l) Should Defendant's copying of Plaintiff's brochures, labels, web sites and online shopping cart continue, Plaintiff will continue to suffer irreparable injury to its good will and reputation which was established through use of the Plaintiff's trademark and copyrights, and for which an award of damages would be inadequate;
(m) Defendant acted willfully in its infringement of Plaintiff's trademark and trade dress;
(n) Defendant acted willfully in its infringement of Plaintiff's copyrights;
(o) Defendant has committed deceptive trade practice;
(p) Defendant has competed unfairly with Plaintiff; and
(q) Defendant is liable for its infringement.THEREFORE, IT IS HEREBY ORDERED that Defendant pay Plaintiff the principal sum of Thirty-Five Thousand Dollars ($35,000.00) for compensatory damages to Plaintiff;
IT IS FURTHER ORDERED that Defendant pay Plaintiff the principal sum of Fifty Thousand Dollars ($50,000.00) for punitive damages to Plaintiff;
IT IS FURTHER ORDERED that Defendant pay Plaintiff the sum of Six-Thousand, Eight-Hundred-Three Dollars and Twenty-Four cents ($6,803.24) for fees, costs and expenses incurred by Plaintiff through January 26, 2011, in the prosecution and defense of this matter;
IT IS FURTHER ORDERED that Defendant pay Plaintiff pre-judgment accrued interest at 3.25% through judgment and post-judgment interest at the statutory rate equivalent to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of judgment; and
IT IS FURTHER ORDERED that Defendant, its respective officers, agents, servants, employees, and/or persons acting in concert or participation with them, or any of them, are prohibited from using the intellectual property of Plaintiff, identified above, including the source code for Plaintiff's website, Plaintiff's online shopping cart, Plaintiff's brochures, and Plaintiff's size filter labels; and IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Court reserves jurisdiction to award Plaintiff further attorney's fees incurred in the prosecution and collection of this matter after January 26, 2011, and further costs incurred in the prosecution and collection of this matter.