Opinion
This matter is deemed suitable for decision without oral argument. E.D. Cal. L.R. 230(g).
GARLAND E. BURRELL, Jr., Senior District Judge.
Plaintiff moves under the Lanham Act, in a conclusory manner, for an award of statutory damages and for an order requiring destruction of infringing property. (ECF No. 34.) Defendant opposes the motion, arguing, inter alia, that Plaintiff's "motion is procedurally improper and must be denied." (Def.'s Opp'n to Pl.'s Mot. ("Def.'s Opp'n") 5:24, ECF No. 36.)
Plaintiff argues that "[b]ecause Defendant willfully used ADAGIO, knowing it is registered on the principal register by Plaintiff..., Defendant became a counterfeiter, trafficking in counterfeit goods, and subject to an award of statutory damages in the amount of not more than $1,000,000.'" (Pl.'s Mot. 5:22-27 (quoting 15 U.S.C. § 1117(c) of the Lanham Act).) Plaintiff also contends that he is entitled to destruction of infringing articles under 15 U.S.C. § 1118 of the Lanham Act. (Id. 5:28-6:14.)
Defendant rejoins that "[a]lthough the Lanham Act affords plaintiffs the right to pursue statutory damages without proving actual damages, [P]laintiff must first establish liability, " and "Defendant's liability under the Act has not been established." (Def.'s Opp'n 5:8-9 (citing Morris v. Comm'r, No. CV-F-97-5031-GEB-DLB, 1997 WL 842413, at *5 (E.D. Cal. Nov. 25, 1997)), 5:21.) Defendant further contends that "Defendant has a right to a jury determination of any amount of statutory damages awarded in this action." (Id. 5:21-22.)
Since Plaintiff has not yet established that he is a prevailing party under the Lanham Act, his motion is denied.