Opinion
1:23-cv-04754
11-20-2023
GS HOLISTIC, LLC, Plaintiff, v. NORTH BROADWA MANAGEMENT, INC d/b/a VAPE STORE and MAJID ALI MOHAMMED, Defendants.
Ryan S. Fojo IL Bar # 6305940 The Ticktin Law Group Attorney for the Plaintiff
Ryan S. Fojo
IL Bar # 6305940
The Ticktin Law Group
Attorney for the Plaintiff
PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANTS
Nancy L. Maldonado, Judge
The Plaintiff, GS HOLISTIC, LLC, by and through its attorney, Ryan S. Fojo, makes this request for entry of a default judgment pursuant to Rule 55(b) against the Defendants, NORTH BROADWAY MANAGEMENT, INC d/b/a VAPE STORE and MAJID ALI MOHAMMED, and in support thereof states as follows:
1. The Plaintiff filed its Complaint against the Defendants on July 22, 2023 [DE 1].
2. On September 6, 2023, the Defendant NORTH BROADWAY MANAGEMENT, INC d/b/a VAPE STORE, and, on October 7, 2023, the Defendant, MAJID ALI MOHAMMED, were served with the Complaint and Summons [DE 9, 12].
3. On October 11, 2023, the Plaintiff filed a Motion for Entry of Clerk's Default against the Defendant, NORTH BROADWAY MANAGEMENT, INC d/b/a VAPE STORE, and on November 15, 2023, against the Defendant, MAJID ALI MOHAMMED which were subsequently granted on October 12, 2023, and on November 16, 2023. See [DE 16, 19].
4. The Plaintiff thus moves for entry of default judgment pursuant to Fed.R.Civ.P. 55(b).
5. In support of the motion, Plaintiff submit the following certifications:
Exhibit A: Affidavit of Attorney Ryan S. Fojo, as to docket review and costs expended.
Exhibit B: Affidavit of Christopher Folkerts, Chief Executive Officer of GS Holistic, LLC, as to statutory damages.
Exhibit C: Judgment in GS Holistic, LLC. v. Envirocure, LLC. and Hassan Abid (22-cv-60463-BLOOM/Valle) for $151,147.89 in statutory damages.
Exhibit D: Judgment in GS Holistic, LLC. v. One Stop Vape et al (2:22-cv-04628-SVW-AGR) for $225,000 in statutory damages and $1,482 in costs.
Exhibit E: Judgment in GS Holistic, LLC. v. Cali Smoke Depot LLC et al (2:22-cv-06679-SPG-KS) for $150,000 in statutory damages and $1,0999.86 in costs.
Exhibit F: Judgment in GS Holistic, LLC. v. Bellair Cigarettes Inc et al One Stop Vape et al (2:22-cv-06363-GW-MRW) for $150,000 in statutory damages and $955.69 in costs.
Exhibit G: Judgment in GS Holistic, LLC. v. Pyramids Wholesale et al (2:22-cv-04632-SPG-RAO) for $300,000 in statutory damages and $1,462
in costs.
Exhibit H: judgment in GS Holistic, LLC. v. Smoke Unlimited et al (1:22-cv-21254-FAM) for $250,000 in statutory damages and $563.41 in costs.
Exhibit I: judgment in GS Holistic, LLC. v. Abood Enterprise et al (1:22-cv-06161) for $150,000 in statutory damages and $817 in costs.
Exhibit J: Pictures of infringing sale
Exhibit K: Trademark Registration Certificates
6. The Plaintiff also submits and relies upon the Memorandum of Law in Support of Statutory Damages, in the amount of $150,000.00.
WHEREFORE, the Plaintiff requests default judgment against NORTH BROADWAY MANAGEMENT, INC d/b/a VAPE STORE and MAJID ALI MOHAMMED, in the amount of $150,000.00.
AFFIDAVIT OF ATTORNEY IN SUPPORT OF PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT FINAL JUDGMENT PURSUANT TO F.R.C.P. 55(b)
Nancy L. Maldonado, Judge
The undersigned authority, Ryan S. Fojo, Esquire, being duly advised that the following is being stated under oath, subject to the laws of perjury, pursuant to F.R.C.P. 55(b), states as follows:
1. The Plaintiff filed their Complaint on July 22, 2023 [DE 1].
2. The Summons and the Complaint were served on the Defendant, NORTH BROADWAY MANAGEMENT, INC d/b/a VAPE STORE, on September 6, 2023, and MAJID ALI MOHAMMED, on October 7, 2023 [DE 9, 12].
3. Rule 55(a) default was entered against the Defendant, NORTH BROADWAY MANAGEMENT, INC d/b/a VAPE STORE, on October 12, 2023, and against the Defendant, MAJID ALI MOHAMMED, on November 16, 2023 [DE 16, 19].
4. The Plaintiff spent $1,018.90 in costs consisting of the filing fee ($402.00), the process server fee ($144.00), the investigation fee ($417.80), and other costs related to the case, including the mailing of documents to the Defendants.
5. On information and belief, the Defendants are not infants, incompetent natural persons, or persons in military service or otherwise exempted from default judgment under the Solders' and Sailors' Civil Relief Act of 1940.
FURTHER AFFIANT SAYETH NAUGHT
Under penalties of perjury, I declare that I have read the foregoing affidavit and that the facts stated in it are true.
Ryan S. Fojo
Subscribed and sworn to and or affirmed before me on this 20th day of November, 2023, by Ryan S. Fojo, [X] who is personally known to me, or [ ] who has produced a driver's license as identification.
AFFIDAVIT OF CHRISTOPHER FOLKERTS
Nancy L. Maldonado, Judge
BEFORE ME, the undersigned authority, personally appeared, Christopher Folkerts, (hereinafter referred to as the “AFFIANT”), who being duly sworn, deposes and says:
1. The AFFIANT is the owner and Chief Executive Officer of the Plaintiff, GS Holistic, LLC (“GS”), a California based company.
2. GS is the owner of three United States Trademarks related to their Stündenglass products.
3. Since 2020, when GS began marketing and selling products with the Stündenglass Trademarks on them, we have been dealing with a massive amount of counterfeit products being sold throughout the United States, including in stores in the State of Illinois.
4. The Stündenglass Trademarks are associated with high end, user-friendly glass infusers and related accessories, which are engineered as the most advanced and user-friendly portable vaporizers in the world due to their innovation and technology.
5. In keeping with this superior standard, the sellers of Stündenglass products must be authorized retailers in order to sell genuine products.
6. On October 4, 2022, counterfeit products bearing the Stündenglass Trademarks registered to GS were sold by the Defendant store, facilitated by the Defendant store owner.
7. The store sold the fake product bearing the Stündenglass Marks for $352.80 when the actual sales price of the real product at retail is $599.95, which is deceptive and confusing to the buyer as the price point is almost identical.
8. The Defendant store owner, which is in the business of selling vaporizers and accessories, knew the price Stündenglass products, such as the one that was sold, and that the product the Defendants sold are of far inferior quality to the authentic Stündenglass.
9. GS has built a reputation within the industry throughout the United States based on the high quality of its products. Because of this goodwill and reputation, the Stündenglass Trademarks and GS in general have become famous.
10. The name Stündenglass and the Stündenglass Trademarks have earned a new meaning, as owning a Stündenglass product is considered among the best portable vaporizers available.
11. The Plaintiff, as well as the AFFIANT never consented to the Defendants selling goods that are not authentic (and that are inferior to) Stündenglass products, labeled with copies of the Stündenglass Trademarks.
12. The sale by the Defendants of fake Stündenglass products creates a false affiliation to GS and the Stündenglass, and creates confusion in the marketplace, and among consumers of Stündenglass products.
13. As a result, the elements described by the Court have been satisfied and statutory damages must be awarded.
14. Pursuant to The Lanham Act, 15 U.S.C. § 1117(c), in a case involving the use of a counterfeit mark (as defined in section 1116(d) of this title) in connection with the sale, offering for sale, or distribution of goods or services, the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits under subsection (a) of this section, 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;.
15. In this instant case, the Court should award $50,000.00 in statutory damages per trademark infringed, which in this case was three Trademarks, for a total of $150,000.00 in statutory damages.
16. The actions were done willfully, as the Defendants were well aware that the same product, that the Defendants sold, was of far inferior quality yet sold for almost the exact retail price of an authentic Stündenglass.
17. The Defendant store is in the business of selling vaporizers and accessories and knows the actual value of an authentic Stündenglass product. Despite this knowledge, the Defendants willfully sold the fake product, for profit, while not purchasing real Stündenglass products from the Plaintiff.
18. As such, the Defendants have willfully infringed on the Plaintiffs Trademarks with the Registration Numbers 6,633,884, 6,174,292 and 6,174,291.
19. The amount of actual damages caused by the Defendants' actions is nearly impossible to determine, especially in cases of default where the Defendants have not appeared or participated in meaningful discovery.
20. The counterfeiting and infringing actions of the Defendants have caused the Plaintiff to suffer losses, as he has lost consumer good-will, loss of brand reputation, confusion in the marketplace, and lost profits based on the systematic sale of fake Stündenglass products.
21. The counterfeiting and infringing actions of the Defendants are rampant in this industry. The Defendants and others in the industry need to be deterred from continuing their counterfeiting and infringing conduct justifying the Plaintiff s request for $150,000.00 in statutory damages.
FURTHER SAYETH NAUGHT
THIS SPACE INTENTIONALLY LEFT BLANK
Under penalties of perjury, I declare that I have read the foregoing affidavit and that the facts stated in it are true.
COUNTY OF BROWARD)
STATE OF FLORIDA)
Subscribed and sworn to and or affirmed before me this 20th day of November, 2023, by Christopher Folkerts, [X] who is personally known to me, or [ ] who has produced a driver's license as identification.
DEFAULT FINAL JUDGMENT
BETH BLOOM, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon Plaintiff GS Holistic, LLC's (“Plaintiff”) Motion for Default Final Judgment Against Both Defendants, ECF No. [18] (“Motion”). The Motion was granted by a separate order. Pursuant to Federal Rule of Civil Procedure 58(a), the Court enters this separate Default Final Judgment.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Final Judgment is entered in favor of Plaintiff and against Defendants Envirocure, LLC and Hassan Abid (collectively, “Defendants”) on all claims as follows:
a. Defendants are liable to Plaintiff in the amount of $151,147.89 (comprising of statutory damages of $150,000.00 and costs of $1,147.89).
b. Defendants, their agents, employees, officers, directors, owners, representatives, successor companies, related companies, and all persons acting in concern or participation with them are permanently restrained and enjoined from infringing upon the Stündenglass Marks directly or contributorily, in any manner, including but not limited to:
i. Import, export, making, manufacture, reproduction, assembly, use, acquisition, purchase, offer, sale, transfer, brokerage, consignment, distribution, storage, shipment, licensing, development, display, delivery, marketing advertising or promotion of the counterfeit Stündenglass product identified in the complaint and any other unauthorized Stündenglass product, counterfeit, copy or colorful imitation thereof;
ii. Assisting, aiding, or attempting to assist or aid any other person or entity in performing any of the prohibited activities referred to in Paragraph (i) above.
c. Pursuant to 15 U.S.C. §1118, Defendants, at their cost, shall deliver to Plaintiff for destruction all products, accessories, labels, signs, prints, packages, wrappers, receptacles, advertisements, and other material in their possession, custody, or control bearing any of the Stündenglass Marks.
2. The Court retains jurisdiction to enforce this Default Final Judgment.
3. The Court denies all relief not granted in this Default Final Judgment.
4. The Court orders execution to issue for this Default Final Judgment.
5. To the extent not otherwise disposed of, any hearings are CANCELED, all pending motions are DENIED AS MOOT, and all deadlines are TERMINATED.
6. The Clerk shall CLOSE this case.
DONE AND ORDERED.
CIVIL MINUTES - GENERAL
Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE
Proceedings: ORDER GRANTING MOTION FOR DEFAULT JUDGMENT [36]
I. INTRODUCTION
Before the Court is a motion for default judgment brought by Plaintiff GS Holistic, LLC ("Plaintiff). ECF No. 36. The Clerk entered default as to Defendants One Stope Vape and Bizi Zheng on August 8, 2022, and September 7, 2022. ECF No. 34. Plaintiff now seeks an entry of default judgment against Defendants. ECF No 36. For the following reasons, Plaintiffs motion for default judgment against Defendants is GRANTED.
II. BACKGROUND
According to the Complaint, Plaintiff is the exclusive owner of three federal registered trademarks (the "Marks") for the Stündenglass brand. Compl. at ¶ 10. Since 2020, Plaintiff has worked to distinguish the Stündenglass brand as the premier manufacturer of glass infusers. The Stündenglass appear clearly on Plaintiffs Stündenglass Products, as well as on the packaging and advertisements related to the Products. Id. ¶ 15. Plaintiff has expended substantial time, money, and other resources in developing, advertising, and othe1wise promoting and protecting these Marks. Id.
At the time the Complaint was filed, Plaintiff was the owner of the following list of trademarks (collectively, "Marks" or "Trademarks"):
a. U.S. Trademark Registration Number 6,633,884 for the standard character mark "Stündenglass" in association with goods further identified in registration in international class 011.
b. U.S. Trademark Registration Number 6,174,292 for the design plus words mark "S" and its logo in association with goods further identified in the registration in international class 034.
c. U.S. Trademark Registration Number 6,174,291 for the standard character mark "Stündenglass,, in association with goods further identified hi registration hi international class 034.Id. at ¶ 11.
Plaintiff s Stündenglass are recognized as being high quality, and Plaintiff has collaborated with numerous celebrities and companies to create collaborations for the Stündenglass products. Id. at ¶ 19. A Stündenglass brand glass infuser is priced at $599.95. Id. at ¶ 21.
Plaintiff alleges that Defendants, without Plaintiffs consent, sold goods that bore the Marks. Id. ¶¶ 25-27. Specifically on June 7, 2022, Defendants offered for sale three glass infusers with a Stündenglass Mark affixed to it for $150 each. Id. at ¶¶ 29-30. An investigator for the Plaintiff purchased this item and upon inspection. Plaintiff determined that the product was a counterfeit good. Id. at ¶¶ 30-31. Plaintiff further alleges that Defendants' infringement was willful. Id. at ¶ 43.
Based off these events Plaintiff files this instant action for (i) willful trademark infringement of the Stündenglass trademarks hi violation of 15 U.S.C. §§ 1114; (ii) trademark counterfeiting of the Stündenglass trademarks in violation of 15 U.S.C. §§1116(d); and (iii) willful trademark infringement (false designation) in violation of 15 U.S.C. § 1125(a). Id. at ¶¶ 53-70. Defendants have failed to respond to the Complaint or otherwise appear hi this action. Plaintiff now seeks a default judgment for statutory damages of $1,350,000 and costs in the amount of $1,482. Mot. at 1-2.
III. MOTION FOR DEFAULT JUDGMENT
Courts consider the following factors in deciding whether to enter default judgment: (1) the possibility of prejudice to plaintiff, (2) the merits of plaintiff s substantive claims, (3) the sufficiency of the complaint, (4) the sum of money at stake hi the action, (5) the possibility of a dispute concerning the material facts, (6) whether the defendant's default was the product of excusable neglect, and (7) the strong public policy favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986); see also Elektra Ent. Grp., Inc. v. Bryant, 2004 WL 783123, *1-2 (CD. Cal. Feb. 13, 2004). Upon consideration of Plaintiff s complaint and the materials provided in support of Plaintiff s motion, the Court finds that the Eitel factors favor granting Plaintiffs motion.
A. Merits of Plaintiffs Claims and Sufficiency of the Complaint
Together, the second and third Eitel factors test the allegations in the plaintiffs complaint and whether they state a claim on which the plaintiff may recover. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1175 (CD. Cal. 2002). In evaluating these factors, the well-pleaded allegations of the complaint are taken as admitted. Benny v. Pipes, 799 F.2d 489, 495 (9th Cir. 1986).
Plaintiffs motion for default judgment focuses on two claims: trademark counterfeiting and trademark infringement. To state a claim for trademark infringement or false designation of origin, Plaintiffs must establish that they own a "valid, protectable mark" and that Defendants are using a "confusingly similar mark." See Grocery Outlet, Inc. v. Albertson's, Inc., 497 F.3d 949, 951 (9th Cir". 2007) (per curiam) (citing 15 U.S.C § 1114(1)); see also Brookfield Commc'ns, Inc. v. W. Coast Entm't Corp., 174 F.3d 1036, 1046 (9th Cir. 1999); AK Futures LLC v. Smoke Tokes, LLC, 2021 WL 5359019, at *3 (CD. Cal. Nov. 17, 2021) (false designation of origin claim analyzed using same elements as trademark infringement claim). "The core element of trademark infringement is the likelihood of confusion, i.e., whether the similarity of the marks is likely to confuse customers about the source of the products." Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir. 2007) (quotations omitted).
The allegations in Plaintiffs complaint-which are taken as true-are sufficient to establish that both claims are meritorious. First, Plaintiff has shown that they own three valid, protectable marks- the Marks. Compl. at ¶ 11. See Brookfield, 174 F.3d at 1047 (holding that registration of a mark in the principal register of the USPTO is prima facie evidence of the validity of the registered mark and of plaintiffs exclusive right to use the mark on the goods and services specified hi the registration).
Second, Plaintiff has shown that Defendants' use is likely to cause customer confusion, hi counterfeiting cases, the Court assumes a likelihood of confusion when the offending mark is counterfeit or virtually identical to a protected mark and is used on an identical product or service. See Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 945 (9th Cir. 2011); Brookfield, 174 F.3d at 1056 ("In light of the virtual identity of marks, if they were used with identical products or services likelihood of confusion would follow as a matter of course."). Here, Plaintiff alleges that Defendants sold goods that bore the Marks, without Plaintiffs consent. Id. ¶¶ 25-27. Specifically on June 7, 2022, Defendants offered for sale three glass infusers with a Stündenglass Mark affixed to it for $150 each. Id. at ¶¶ 29-30. And an investigator for the Plaintiff purchased this item and upon inspection, Plaintiff determined that the product was a counterfeit good. Plaintiff further alleges that Defendants1 infringement was willful. Id. at ¶¶ 30-31. These allegations, if true, are sufficient to demonstrate a likelihood of confusion. Accordingly, the second and third Eitel factors weigh in favor of granting the motion for default judgment.
B. Remaining Eitel Factors
The Court now turns to the remaining Eitel factors, which also favor granting default judgment.
First, Plaintiff will suffer prejudice if the Court does not enter default judgment. Because Defendant has not appeared in this action, default judgment is the only way in which Plaintiff may obtain relief for the breach of contract. See Colony Ins. Co. v. Schmid, 2020 U.S. Dist. LEXIS 164505, *5 (CD. Cal. Sep. 9, 2020). Without the entry of default judgment. Defendant will have escaped liability simply by not showing up. See Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1007 (CD. Cal. 2014). Therefore, this factor favors entry of default judgment.
Next, the Court must determine whether "the amount of money at stake [is] in relation to the seriousness of Defendant's conduct." Eitel, 782 F.2d at 1471-72. "Default judgments are disfavored where the sum of money requested is too large or unreasonable in relation to a defendant's conduct." Constr. laborers Trust Funds for S. Cal. Admin. Co. v. Anzalone Masonry, Inc., 316 F.Supp.3d 1192, 1201 (CD. Cal. 2018). Here, though damages are discussed further below. Plaintiff requests damages based on the amount permitted by statute and as described in its complaint. Therefore, this factor weighs in favor of granting default judgment.
The next factor, the possibility of disputed material facts, also favors entry of default judgment. After entry of default, "all well-pleaded facts in the complaint are taken as true, except those relating to damages." Pepsico, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1176 (CD. Cal. 2002). Because Defendant has not made any appearance in this case to contest any of the issues or assert any defenses, it is very unlikely that disputes as to material fact will arise. See e.g., Colony Ins. Co., 2020 U.S. Dist. LEXIS at * 11. Therefore, this factor also weighs in favors of entry of default judgment.
Next, the Court must determine whether the Defendant's default is a product of excusable neglect. Eitel, 782 F.2d at 1472. This factor favors the entry of default judgment where Plaintiff demonstrates that Defendant has been properly served and is thus aware of the pending action. See Wecosigti, Inc. v. IFG Holdings, Inc., 845 F.Supp.2d 1072, 1082 (CD. Cal. 2012). Here, Plaintiff has properly showed that Defendant was properly served. ECF Nos. 24, 25, 31, 32.
Lastly, the final Eitel factor advises that "[c]ases should be decided upon then merits whenever reasonably possible." 728 F.2d at 1472. However, "termination of a case before hearing the merits is allowed whenever a defendant fails to defend an action." PepsiCo, Inc., 238 F.Supp.2d at 1177. Thus, this preference is not dispositive of entering default judgment when the other Eitel factors favor such, as is the case here. See id.
Because Defendant has failed to appear in Court to defend the action, and because the Eitel factors strongly favor such a decision despite the policy favoring merits judgments, the Court concludes that default judgment is warranted here.
The Court also concludes that Plaintiff has complied with the procedural requirements of Fed.R.Civ.P. 55(a) and 54(c) and Local Rule 55-1. as required for entry of a default judgment. See ECF Nos. 24. 25. 31, 32. 34.
IV. REMEDIES
"A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed.R.Civ.P. 54(c). While Fed.R.Civ.P. 55 gives courts "considerable leeway" in determining what is required for an entry of default judgment, "[t]he general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 97-918 (9th Cir. 1987) (citation omitted).
Under the Lanham Act, plaintiffs may recover statutory damages "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." 15 U.S.C. § 1117(c)(1). Where a defendant's conduct is willful, the court may grant enhanced statutory damages of "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)(2).
Although 15 U.S.C. § 1117(c) does not provide guidelines for determining an appropriate statutory damages award, courts faced with determining statutory damages under the Lanham Act have considered the following factors: (1) expenses saved and profits obtained by the infringing party; (2) revenues lost by the holder of the mark; (3) value of the mark; (4) the deterrent effect on the infringing party and other potential infringers; (5) whether the infringing conduct was willful; and (6) whether the infringing party has cooperated hi providing information from which the financial benefit of the infringement can be calculated. Microsoft Corp. v. Nop, 549 F.Supp.2d 1233, 1236 (E.D. Cal. 2008).
Here. Plaintiff seeks $50,000 per infringing trademark, for a total of $1,350,000 hi statutory damages. Plaintiff alleges that an investigator purchased three glass infusers with the Stündenglass mark affixed to it for $150 each. Compl. at ¶ 30. Plaintiff also contends that the retail price for authentic Stündenglass glass infuser pipes is approximately $600. Id. at ¶ 21.
In their motion. Plaintiff contends that Defendants sold 9 products bearing Plaintiffs three marks.
From the evidence submitted to the Court, the extent of Defendants' counterfeiting is unclear. While Plaintiff contends that they estimate $38.3 million from lost sales in 2021, they do not estimate what amount is attributable to Defendant's conduct. Folkerts Aff. as to Value of Damages at ¶16. Aside from the three units that Plaintiff's investigator purchased. Plaintiff does not allege, specify, or attempt to approximate the number of infringing unite sold. Plaintiff also did not submit evidence addressing the expenses saved and profits reaped by Defendant, or the revenues lost by Plaintiff, but this can be attributed by Defendants' lack of cooperation in the proceeding. Nonetheless, Plaintiffs have alleged that Defendants willfully infringed Plaintiffs mark. Yelp Inc. v. Catron, 70 F.Supp.3d 1082, 1101 (N.D. Cal. 2014) ('An allegation of willful trademark infringement is deemed true on default."). Moreover, Defendants have not cooperated in providing information from which the financial benefit of infringement can be calculated, since they have not appeared.
Based on the foregoing, the Court awards Plaintiff statutory damages of $25,000 per infringement. Sream, Inc. v. Andy's Smoke Shop, Inc., No. 18CV1676-MMA (RBB), 2018 WL 5279130, at *6 (S.D. Cal. Oct. 23, 2018) (awarding $25,000 in statutory damages on evidence of one counterfeit product); Sream, Inc. v. Lavinga, No. ED CV16-00806-JAK (KKx), 2016 U.S. Dist. LEXIS 106540, at * 17-19 (CD. Cal. Aug. 10, 2016) (same). Accordingly, the Court awards a total of $225,000 based on the sale of three counterfeit goods, bearing three infringing marks each.
Neither Plaintiffs complaint nor affidavits state that Defendants sold 9 products bearing Plaintiff s Marks. Thus. Plaintiff has failed to provide evidence or allegations supporting this assertion in their motion. Accordingly, the Court will only award statutory damages as to the three infringing units that Plaintiffs investigator purchased.
The Court also awards $ 1,482 in costs incurred in pursuing a default judgment.
V. Conclusion
For the foregoing reasons, the Court GRANTS Plaintiff s motion for default judgment. Defendant is ORDERED to pay Plaintiff $225,000 in statutory damages, as well as $1,482 in costs.
IT IS SO ORDERED.
FINAL JUDGMENT
The Court has before it the Plaintiff, GS HOLISTIC, LLC's Motion for Default Judgment against Defendant, CALI SMOKE DEPOT LLC d/b/a THE PIPE KING CHINO. Having considered the Plaintiff's Motion and all documents and evidence attached thereto, and the Court being fully advised, and good cause shown:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Judgment be entered in favor of the Plaintiff on all claims, and the Defendants are liable to the Plaintiff in the amount of $151,099.86 (comprising statutory damages of $150,000.00 and costs of $1,099.86), for which let execution issue.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant, its agents, employees, officers, directors, owners, representatives, successor companies, related companies, and all persons acting in concern or participation with it are permanently restrained and enjoined from infringing upon the Stündenglass Marks directly or contributorily, in any maimer, including but not limited to:
(a) Import, export, making, manufacture, reproduction, assembly, use, acquisition, purchase, offer, sale, transfer, brokerage, consignment, distribution, storage, shipment, licensing, development, display, delivery, marketing advertising or promotion of the counterfeit Stündenglass product identified in the complaint and any other unauthorized Stündenglass product, counterfeit, copy or colorful imitation thereof;
(b) Assisting, aiding or attempting to assist or aid any other person or entity in performing any of the prohibited activities referred to in Paragraphs (a) above.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pursuant to 15 U.S.C. § 1118, the Defendants, at their cost, deliver to the Plaintiff for destruction all products, accessories, labels, signs, prints, packages, wrappers, receptacles, advertisements, and other material in their possession, custody or control bearing any of the Stündenglass Marks.
IT IS FURTHER ORDERED that this court retains jurisdiction over any matter pertaining to this judgment.
IT IS SO ORDERED.
FINAL JUDGMENT
HON. GEORGE H, WU, UNITED STATES DISTRICT JUDGE.
The Court has before it the Plaintiff, GS HOLISTIC, LLC's Motion for Default Judgment against Defendants, BELLAIR CIGARETTES INC d/b/a BELLAIR CIGARETTE & VAPE and MIKHAIEL ABDULNOUR. Having considered the Plaintiff's Motion and all documents and evidence attached thereto, and the Court being fully advised, and good cause shown:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Judgment be entered in favor of the Plaintiff on all claims, and the Defendants are liable to the Plaintiff in the amount of $150,955.69 (comprising statutory damages of $150,000.00 and costs of $955.69), for which let execution issue.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant, its agents, employees, officers, directors, owners, representatives, successor companies, related companies, and all persons acting in concern or participation with it are permanently restrained and enjoined from infringing upon the Stündenglass Marks directly or contributorily, in any manner, including but not limited to:
(a) Import, export, making, manufacture, reproduction, assembly, use, acquisition, purchase, offer, sale, transfer, brokerage, consignment, distribution, storage, shipment, licensing, development, display, delivery, marketing advertising or promotion of the counterfeit Stündenglass product identified in the complaint and any other unauthorized Stündenglass product, counterfeit, copy or colorful imitation thereof;
(b) Assisting, aiding or attempting to assist or aid any other person or entity in performing any of the prohibited activities referred to in Paragraphs (a) above.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pursuant to 15 U.S.C. §1118, the Defendants, at their cost, deliver to the Plaintiff for destruction all products, accessories, labels, signs, prints, packages, wrappers, receptacles, advertisements, and other material in their possession, custody or control bearing any of the Stündenglass Marks.
IT IS FURTHER ORDERED that this court retains jurisdiction over any matter pertaining to this judgment.
IT IS SO ORDERED.
FINAL JUDGMENT
HON. SHERILYN PEACE GARNETT, UNITED STATES DISTRICT COIN! JUDGE.
The Court has before it the Plaintiff, GS HOLISTIC, LLC's Motion for Default Judgment against Defendants, PYRAMIDS WHOLESALE INC and GAMIL A GIRGES. Having considered the Plaintiff's Motion and all documents and evidence attached thereto, and the Court being fully advised, and good cause shown:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Judgment be entered in favor of the Plaintiff on all claims, and the Defendants are liable to the Plaintiff in the amount of $301,462.00 (comprising statutory damages of $300,000.00 and costs of $1,462.00), for which let execution issue.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant, its agents, employees, officers, directors, owners, representatives, successor companies, related companies, and all persons acting in concern or participation with it are permanently restrained and enjoined from infringing upon the Stündenglass Marks directly or contributorily, in any manner, including but not limited to:
(a) Import, export, making, manufacture, reproduction, assembly, use, acquisition, purchase, offer, sale, transfer, brokerage, consignment, distribution, storage, shipment, licensing, development, display, delivery, marketing advertising or promotion of the counterfeit Stündenglass product identified in the complaint and any other unauthorized Stündenglass product, counterfeit, copy or colorful imitation thereof;
(b) Assisting, aiding or attempting to assist or aid any other person or entity in performing any of the prohibited activities referred to in Paragraphs (a) above.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pursuant to 15 U.S.C.§ 1118. the Defendants, at their cost, deliver to the Plaintiff for destruction all products, accessories, I labels, signs, prints, packages, wrappers, receptacles, advertisements, and other material in their possession, custody or control bearing any of the Stündenglass Marks.
IT IS FURTHER ORDERED that this court retains jurisdiction over any matter pertaining to this judgment.
IT IS SO ORDERED.
DEFAULT FINAL JUDGMENT
FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE.
THIS CAUSE came before the Court upon Plaintiffs Motion for Default Judgment Against All Defendants (D.E. 12), filed on February 3, 2023.
THE COURT has considered the motion and the pertinent portions of the record, and is otherwise fully advised in the premises. A default has been entered against Defendants Smoke Unlimited, LLC., Thouhidul Khan, and Abdur R. Khan for failure to answer or otherwise plead to the Summons and Complaint served by Plaintiff. Counsel for Plaintiff filed an Affidavit with the Court as to the amount due from Defendants. Accordingly, it is
ADJUDGED that the Motion for Default Final Judgment is GRANTED. Judgment is hereby entered in favor of Plaintiff GS Holistic, LLC and against Defendants Smoke Unlimited, LLC., Thouhidul Khan, and Abdur R. Khan. It is further
ADJUDGED that Plaintiff shall recover from Defendants Smoke Unlimited, LLC., Thouhidul Khan, and Abdur R. Khan compensatory damages in the amount of $ 250,000; attorney's fees and costs in the amount of $ 563.41; for a sum total of $ 250,563.41. Interest shall accrue on this judgment pursuant to 28 U.S.C. §1961. For which sum let execution issue.
DONE AND ORDERED.
JUDGMENT ORDER
MARY M. ROWLAND, UNITED STATES DISTRICT JUDGE
This matter coming before the Court on Plaintiff's Motion for Entry of Default Judgment under Rule 55(b), and after considering the prove-up materials and memorandum submitted by movant, the Court hereby finds, and it is ORDERED:
1. This matter was filed on November 7, 2022.
2. On December 29, 2022, January 1, 2023, and March 3, 2023, the Defendants ABOOD ENTERPRISE LLC d/b/a ABOOD ENTERPRISE LLC, AHMAD ALBARGHOUTHI, and YASSER OLYYAN were served with the Complaint and Summons [DE 8, 9, 15].
3. The Defendants have failed to answer or appear.
4. On April 17, 2023, this Court entered a default against the Defendants pursuant to F.R.C.P. 55(a).
5. The Plaintiff has sought entry of default judgment and filed prove-up materials and a memorandum of law.
6. The amount sought by the Plaintiff is $150,000.00 and is not excessive.
7. Accordingly, the Court awards $150,000.00 in statutory damages.
8. The Court awards $817.00 in costs.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Judgment be entered in favor of the Plaintiff, GS HOLISTIC, LLC, against the Defendants ABOOD ENTERPRISE LLC d/b/a ABOOD ENTERPRISE LLC, YASSER OLYYAN, and AHMAD ALBARGHOUTHI, jointly and severally in the amount of $150,817.00.
IT IS SO ORDERED.
Dated: May 30, 2023
(Exhibit J Omitted)
(Exhibit K Omitted)