-SMS 99 Only Stores v. Variety 99 Cents Plus et al, No. 1:2010cv01343 - Document 17 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that judgment be entered in this action against defendants; that an injunction issue permanently restraining defendants from the use of any federally designated names and service marks to intentionally create confusion between its store and plaintiff's chain of stores; that an accounting of defendants' profits be ordered; and that plaintiff not be awarded attorneys' fee (in re document 14 , Motion for Default Judgment Against Defendants); matter referred to Judge Lawrence J. O'Neill; objections to F&R's due within 30 days of being served with copy of this order; order signed by Magistrate Judge Sandra M. Snyder on 6/8/2011. (Rooney, M)
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-SMS 99 Only Stores v. Variety 99 Cents Plus et al Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 99¢ ONLY STORES, a California corporation, CASE NO. 1:10-cv-01343-LJO-SMS 10 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THE GRANT OF PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 11 v. 12 13 VARIETY 99 CENTS PLUS, a California company; TOMY LE, an Individual; and DOES 1-20, INCLUSIVE, 14 Defendants. 15 (Doc. 14) / 16 Plaintiff 99¢ Only Stores moves for Entry of Default Judgment against Defendants Tomy 17 Le and Variety 99 Cents Plus. This Court has reviewed Plaintiff’s motion and supporting 18 documents and has determined that this matter is suitable for decision without oral argument 19 pursuant to Local Rule 78-230(g). Having reviewed all written materials submitted and 20 applicable law, the Court recommends that Plaintiff’s motion be granted. 21 I. Procedural and Factual Background 22 On July 23, 2010, Plaintiff filed its complaint against Defendant Variety 99 Cents Plus, 23 claiming false designation of origin, trademark infringement, trademark dilution, and unfair 24 competition under the Lanham Act (15 U.S.C. § 1051 et seq.) as well as related claims under 25 California state law. Plaintiff contended that Defendant deliberately misappropriated Plaintiff’s 26 federally designated names and service marks to intentionally create confusion between its store 27 and Plaintiff’s chain of stores, with the intent to misappropriate Plaintiff’s good will. 28 /// 1 Dockets.Justia.com 1 The initial proof of service, filed August 11, 2010, identified Tomy Le as the owner of 2 Defendant Variety 99 Cents Plus. On September 28, 2010, Plaintiff amended its complaint to 3 add Tomy Le as a defendant. The Clerk issued a summons for Defendant Tomy Le on 4 September 29, 2010. Le was served on October 4, 2010. Neither Defendant answered or 5 otherwise appeared in this action. On November 9, 2010, the Clerk entered default against 6 Defendant Tomy Le. The Clerk entered default against Variety 99 Cents Plus on November 12, 7 2010. 8 According to the complaint, Plaintiff, a publically traded California corporation that 9 operates over 200 retail stores selling discounted merchandise, has done business in California 10 since 1982, when it opened its first store in Los Angeles. It uses a collection of service marks, 11 trademarks, and trade names, referred to as the “99¢ marks.” The common and essential element 12 of Plaintiff’s marks is the numeral “99,” which is usually large and central, making it the featured 13 component of each mark. Plaintiff uses the marks on its price signs; shelving; shopping carts, 14 bags, and baskets; receipts; merchandise stickers; employee name tags and apparel; company 15 vehicles; and purchase orders, letterhead, and annual reports. Plaintiff also uses the numeral 16 “99" in various ways in its slogans, promotions, and advertising. Plaintiff spends approximately 17 $2 million annually on advertising. 18 Plaintiff has registered the following marks with the federal government: 19 FEDERAL PTO REGISTRATIONS 20 Mark Reg. No. Reg. Date 21 “ONLY 99 ONLY” 1,395,427 May 27, 1986 22 “99¢ ONLY STORES” 1,455,937 September 1, 1987 23 “DRIVER CARRIES 99¢ ONLY” 1,712,553 September 1, 1992 24 “OPEN 9 DAYS A WEEK 9 AM – 9PM” 1,724,475 October 13, 1992 “ONLY 99¢ ONLY” 1,730,121 November 3, 1992 “99¢ ONLY STORES” & design 1,741,928 December 22, 1992 “99¢ ONLY” 1,747,549 January 19, 1993 “99¢ ONLY STORES” 1,947,809 January 16, 1996 25 26 27 28 2 1 “99¢” 1,959,640 March 5, 1996 2 “99¢ ONLY STORES” & design 2,402,900 November 7, 2000 3 “99 THANKS” 2,761,939 September 9, 2003 4 “HIGHWAY 99" 3,132,449 August 22, 2006 5 “HIGHWAY 99" & design 3,132,450 August 22, 2006 6 “HIGHWAY 99 YOUR ROAD TO GREAT SAVINGS” 3,144,871 September 19, 2006 7 Registration numbers 1,712,553; 1,730,121; 1,741,928; 1,747,549; 1,947,809; 1,959,640; 8 2,401,900; and 2,761,939 are incontestable under the Lanham Act. Plaintiff also has the 9 following California state registrations: 10 California State Registrations 11 Mark Reg. No. Reg. Date “99¢ ONLY” 23,078 May 9, 1985 “99¢” 23,958 August 1, 1985 15 “OPEN 9 DAYS A WEEK 9 AM TO 9 PM” 40,745 August 19, 1992 16 “99¢ ONLY STORES” 42,970 January 12, 1994 12 13 14 17 Plaintiff’s mark is distinctive and well-known. Numerous national and international 18 media have profiled Plaintiff’s business, including its distinctive marks. The marks have been 19 used in various television programs and in the works of a contemporary artist. 20 Defendants operate a similar discount retail business in Fresno, California, using the 21 name “Variety 99 Cents Plus.” As illustrated in exhibit 19 to the complaint, their exterior sign 22 mimics Plaintiff’s trademarks by using the same large 99¢ logo, centrally placed. Plaintiff 23 contends that Defendants have constructive knowledge of Plaintiff’s federal and state registered 24 trademarks, and employ the intentionally confusing logo to mislead customers. Plaintiff alleges 25 that Defendants’ use of infringing trademarks implies to the public an association between 26 Defendants’ business and Plaintiff. It damages Plaintiff’s good will and reputation, and dilutes 27 the distinctiveness of Plaintiff’s trademarks. 28 /// 3 1 Plaintiff never consented to Defendants’ use of its trademarks. On or about March 12, 2 2009, Plaintiff sent Defendants actual notice of Plaintiff’s trademark rights, identifying its 3 federally registered marks. The letter demanded that Defendants cease and desist unauthorized 4 use of its infringing marks. Defendants did not respond. Plaintiff has continued to attempt to 5 communicate with Defendants, who have failed to respond. 6 II. Discussion 7 A. Default Judgment 8 Federal Rule of Civil Procedure 55(b)(2) provides for a default judgment: 9 15 (2) By the Court. In all other cases the party entitled to judgment by default shall apply to the court therefor; but no judgment shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States. 16 “[U]pon default, the well pleaded allegations of the complaint relating to liability are 10 11 12 13 14 17 taken as true.” Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 18 1323 (7th Cir. 1983). See also TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 19 1987). Thus, “[a]t the time of entry of default, the facts alleged by the plaintiff in the complaint 20 are deemed admitted.” 10 J. Moore, Moore’s Federal Practice § 55.11 (3d ed. 2000). 21 A defendant is not deemed to have admitted any facts that are not well-pleaded or any 22 conclusions of law. DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007), cert. 23 denied, 129 S.Ct. 40 (2008). Allegations that do no more than parrot the language of the statute 24 that the defendant is claimed to have violated are not well-pleaded facts but legal conclusions. 25 Id. When a plaintiff fails to plead facts sufficient to support his or her cause of action, the 26 defendant’s liability is not established by default. Danning v. Lavine, 572 F.2d 1386, 1388 (9th 27 Cir. 1978). 28 /// 4 1 2 3 B. Federal Claims 1. False Designation and Unfair Competition (15 U.S.C. § 1125(a)) Plaintiff contends that Defendants have violated the statutory provisions relating to false 4 designation and unfair competition set forth in 15 U.S.C. § 1125(a)(1). To establish a claim 5 under this subsection, sometimes referred to as “false advertising,” a plaintiff must prove “(1) the 6 defendant made a false statement about either the plaintiff’s or its own product; (2) the statement 7 was made in a commercial advertising or promotion; (3) the statement actually deceived or had 8 the tendency to deceive a substantial segment of its audience; (4) the deception is material; (5) 9 the defendant caused its false statement to enter interstate commerce; and (6) the plaintiff has 10 been or is likely to be injured as a result of the false statement, either by direct diversion of sales 11 from itself to defendant, or by a lessening of goodwill associated with the plaintiff’s product.” 12 Newcal Industries, Inc, v. Ikon Office Solution, 513 F.3d 1038, 1052 (9th Cir. 2008), cert. denied, 13 129 S.Ct. 2788 (2009), quoting Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 14 n. 4 (9th Cir.), cert. denied, 537 U.S. 1047 (2002).. Plaintiff alleged that Defendants’ commercial 15 use of a mark substantially similar to Plaintiff’s registered marks constitutes such a false 16 statement and is likely to mislead potential customers, diverting sales from Plaintiff to 17 Defendants and co-opting the goodwill associated with Plaintiff’s marks for Defendants’ 18 financial enrichment. These allegations establish a cognizable claim for which Plaintiff is 19 entitled to default judgment against Defendants. 20 2. Trademark Infringement (15 U.S.C. § 1114 and California Business and Professions Code § 14245 ) 21 The Lanham Act (15 U.S.C. § 1114) “allows the holder of a protectable trademark to hold 22 liable any person who, without consent, ‘use[s] in commerce any . . . registered mark in 23 connection with the sale, offering for sale, distribution, or advertising of any goods or services’ 24 which is likely to cause confusion.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 25 408 F.3d 596, 602 (9th Cir. 2005). To prevail on a claim of trademark infringement under 15 26 U.S.C. § 1114, the plaintiff must establish that “(1) it has a protectable ownership interest in the 27 mark; and (2) that the defendant’s use of the mark is likely to cause customer confusion.” 28 Department of Parks and Recreation for the State of California v. Bazaar del Mundo Inc., 448 5 1 F.3d 1118, 1124 (9th Cir. 2006). The analysis of trademark infringement is the same under 2 federal and California law. Grupo Gigante SA De CV v. Dallo & Co., Inc., 391 F.3d 1088, 1100 3 (9th Cir. 2004). Plaintiff has well pleaded its ownership interest in the 99¢ marks. 4 “The test of trademark infringement under state, federal, and common law is whether 5 there will be a likelihood of confusion.” M2 Software, Inc. v. Madacy Entertainment, 421 F.3d 6 1073, 1080 (9th Cir. 2005), cert. denied, 547 U.S. 1069 (2006). To determine whether there is a 7 likelihood of confusion between the parties’ allegedly similar goods and services, AMF Inc. v. 8 Sleekcraft Boats directs the court to consider eight factors: “(1) strength of mark; (2) proximity of 9 the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels 10 used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) the 11 defendant’s intent in selecting the mark; and (8) the likelihood of expansion of the product lines.” 12 599 F.2d 341, 348-49 (9th Cir. 1979), abrogated on other grounds, Mattel, Inc. v. Walking 13 Mountain Productions, 353 F.3d 792, 810 n. 19 (9th Cir. 2003). The Sleekcraft factors are not an 14 exhaustive list of factors relevant to a judicial determination of the likelihood of consumer 15 confusion, and courts must consider such factors as are relevant to the facts of the particular 16 situation. Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137, 1142 17 (9th Cir. 2011). 18 A party claiming trademark infringement is not required to prove that the alleged 19 infringer intended to deceive consumers. E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 20 1280, 1293 (9th Cir. 1992). When an alleged infringer knowingly adopts a trademark similar to 21 another’s, the court must assume that the public will be deceived. Sleekcraft, 599 F.2d at 354. 22 Plaintiff alleges Defendants’ use of substantially similar marks and a substantially similar 23 name for a similar discount retail store. Similarity of marks in “sight, sound, or meaning” is a 24 critical factor is assessing the likelihood of confusion of two marks. M2 Software, 421 F.3d at 25 1082. When the products or services in question are related or complementary, as they are here, 26 the likelihood of confusion is higher. Id. 27 28 Plaintiff has alleged a cognizable claim for trademark infringement, well-supported by factual allegations. As discussed above, by failing to respond to the complaint, Defendants are 6 1 deemed to have admitted those allegations. Accordingly, Plaintiff is entitled to default judgment 2 on its trademark infringement claim. 3 3. Dilution (15 U.S.C. § 1125 (c) (1) and California Business and Professions Code § 14330) 4 Dilution refers to the diminution of a trademark’s value when it is used to identify 5 different products. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 903 (9th Cir. 2002), cert. 6 denied, 537 U.S. 1171 (2003). The Ninth Circuit has explained: 7 For example, Tylenol snowboards, Netscape sex shops, and Harry Potter dry cleaners would all weaken the “commercial magnetism” of these marks and diminish their ability to evoke their original associations. Ralph S. Brown, Jr., Advertising and the Public Interest: Legal Protection of Trade Symbols, 57 Yale L.J. 1165, 1187 (1948), reprinted in 108 Yale L.J. 1619 (1999). These uses dilute the selling power of these trademarks by blurring their “uniqueness and singularity,” Frank I. Schechter, The Rational Basis of Trademark Protection, 40 Harv. L.Rev. 813, 831 (1927), and/or by tarnishing them with negative associations. 8 9 10 11 12 Mattel, 296 F.3d at 903. 13 When a trademark is blurred, its distinctiveness is diminished because it no longer brings to mind 14 only the original user. Id. “Tarnishment occurs when a defendant’s use of a mark similar to a 15 plaintiff’s [mark] presents a danger that consumers will form unfavorable associations with the 16 mark.” Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 881 (9th Cir. 1999). 17 With the enactment of the Federal Trademark Dilution Act in 1996, the Lanham Act 18 expanded to permit the owner of a famous mark to obtain an injunction against another person’s 19 commercial use of his mark in commerce. Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 20 672, 676 (9th Cir. 2005). “Although this statutory language is ungainly, its meaning seems clear: 21 It refers to the use of a famous and distinctive mark to sell goods other than those produced or 22 authorized by the mark’s owner.” Mattel, 296 F.3d at 903. The purpose of anti-dilution 23 provisions is to secure to the mark’s owner the goodwill of its business and to ensure that 24 consumers can distinguish competing producers. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 25 763, 774 (1992). In contrast to other trademark protection provisions, dilution focuses on 26 protecting the integrity of the trademark rather than protecting consumers from confusion. 27 Mattel, 296 F.3d at 905 (9th Cir. 2002). 28 /// 7 1 To prove a dilution claim, “a plaintiff must show that (1) the mark is famous and 2 distinctive; (2) the defendant is making use of the mark in commerce; (3) the defendant’s use 3 began after the mark became famous; and (4) the defendant’s use of the mark is likely to cause 4 dilution by blurring or dilution by tarnishment.” Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 5 634 (9th Cir. 2008). The analysis is the same under both federal and California state law. Id. To 6 establish that a mark is “famous,” a court must consider various relevant factors, including (1) 7 the duration, extent, and geographic reach of the advertising and publicity of the mark by the 8 registrant and others; (2) the amount, value, and geographic extent of goods and services offered 9 under the mark; (3) the extent of actual recognition of the mark; and (4) the nature of the mark’s 10 registration. 15 U.S.C. § 1125(c). 11 Although the allegations within count 3 are largely legal conclusions, the factual 12 allegations preceding the claims are sufficient to establish the elements of dilution by blurring. 13 In support of its contention that its marks are “famous,” Plaintiff alleges that it operates a chain 14 of 200 stores throughout California, Nevada. Texas and Arizona, and that it has used its marks 15 for 29 years since it opened its first store. The marks are registered both nationally and in the 16 State of California. The marks are consistent in that each features a large and centrally situated 17 “99.” Plaintiff uses its marks in a consistent manner in promotions and advertising, at the point 18 of sale, in administration and management, and in labeling and identification of its stores and 19 products. 20 Defendants’ use of Plaintiff’s famous mark for use in their own commercial activities 21 threatens the “generification” of Plaintiff’s marks to denote any discount retail store. 22 Accordingly, the Court will order default judgment of Plaintiff’s dilution claim. 23 D. 24 Plaintiff seeks an injunction incorporating the following provisions. In addition, 25 California Business and Professions Code § 14402 permits the entry of an injunction to restrain 26 the use of an infringing trade name. This Court recommends that these provisions requested by 27 Plaintiff be incorporated into the default judgment: 28 /// Injunction 8 1 2 Defendants and their officers, agents, and employees and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, are permanently enjoined and restrained from 3 1. Using, copying, simulating, or in any other way infringing on Plaintiff’s 99¢ marks, including all federally registered, state registered, and common law service marks, trade names, and trade dress, including but not limited to Federal Registration numbers 1,959,640; 2,401,900; 1,747,549; 1,741,928; 1,730,121; 1,712,553; 1,455,937; 1,395,427; 2,761,939; 3,132,449; 3,132,450; 3,144,871; and California State Registration numbers 23,078; 23,958; 40,745; and 42,970. 2. Displaying any signage or other business identifiers, including but not limited to building signs, directional signs, monument signs, computer templates, banners, advertising media, menus, business cards, and brochures containing prominently figured characters “99,” “99¢,” “$.99,” or “$0.99,” or any characters confusingly similar thereto as the name or part of the name of Defendants’ business or corporation. 3. Using “99,” “99¢,” “$.99,” or “$0.99,” or any mark confusingly similar thereto, as the name or part of the name of Defendants’ business or corporation, and displaying any references to “99,” “99¢,” “$.99,” or “$0.99,” or any mark confusingly similar thereto, in or in connection with Defendants’ business or corporate name. 4. Using the “¢” symbol to refer to “cent(s)” or “Cent(s)” as part of the name of Defendants’ business or on any signage as part of the name or identifier of Defendants’ business. 15 5. Using the numeral “99" as a feature of any business or corporate name. 16 6. Using the numeral “99" as a feature of any business identifiers, including but not limited to building signs, directional signs, monument signs, computer templates, banners, advertising media, menus, business cards, and brochures. 7. Using the numeral “99" as a stylized of fanciful numeral as part of a business name. 8. Using any of the marks from Plaintiff’s federally registered and common law service marks, trade names, trade dress, or anything confusingly similar to the operation of Defendants’ business including the signage, storefront facade, interior decor, shopping carts, bags, baskets, merchandise stickers, cash register receipts, employee aprons, shirts, and name tags; vehicles; letterhead; purchase orders; company brochures and business cards; website and advertising; or confusingly similar the Plaintiff’s other business identifiers, such as building signs, directional signs, monument signs, computer templates, banners, advertising media, and menus. 9. Using purple, pink, or blue color hues, or combinations of colors, for the mark and name of Defendants’ business wherever that business mark or name or both are used by Defendants, including the use of the business mark or name or both on the items and places set forth in paragraph 8 above. 10. Referring to “99¢ store(s)” or “99¢ Store(s)” as if they were a generic term applicable to a category of deep discount or other retail stores. 11. Using, copying simulating, or otherwise mimicking Plaintiff’s trade dress. 4 5 6 7 8 9 10 11 12 13 14 17 18 19 20 21 22 23 24 25 26 27 28 9 1 E. Attorneys’ Fees 2 “The court in exceptional cases may award reasonable attorney fees to the prevailing 3 party.” 15 U.S.C. § 1117(a). Plaintiff contends that, because Defendants admitted through 4 default that they knowingly, willfully, and maliciously used Plaintiff’s marks with the intent to 5 trade on Plaintiff’s goodwill and to injure Plaintiff, this case is an exceptional case in which 6 attorneys’ fees should be awarded to Plaintiff. 7 Whether an infringement case is exceptional is a question of law for the district court. 8 Watec Co., Ltd. v. Liu, 403 F.3d 645, 656 (9th Cir. 2005); Earthquake Sound Corp. v. Bumper 9 Industries, 352 F.3d 1210, 1216 (9th Cir. 2003). A trademark infringement case is exceptional 10 when the record supports a finding that the defendant’s infringement was malicious, fraudulent, 11 willful, or deliberate. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 12 2008); Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1042 (9th Cir. 2003), cert. denied, 13 540 U.S. 1111 (2004). Since the factual allegations of a complaint are deemed to be true in a 14 default judgment action, a district court may properly award attorneys’ fees if the complaint 15 alleged malicious, fraudulent, willful, or deliberate infringement. Derek Andrew, 528 F.3d at 16 702; Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1023 (9th Cir. 2002); Televideo 17 Systems, 826 F.2d at 917-18. 18 Here, the complaint includes no factual allegations that would support a finding that 19 Defendants’ use of a sign including the term “99¢” was malicious, fraudulent, willful, or 20 deliberate, only Plaintiff’s legal conclusions that Defendants’ use of a substantially similar mark 21 was malicious, fraudulent, willful, or deliberate. Such allegations are not factual allegations that 22 are presumed true in a default judgment. 23 Plaintiff’s sole factual allegation relating to the issue of malicious, fraudulent, willful, or 24 deliberate conduct by Defendants is the allegation that Defendants did not change the name of 25 the store or remove the offending signs after Plaintiff advised them in writing that the business 26 name and signage infringed on Plaintiff’s trademarks. A finding that a defendant intentionally 27 infringed on the plaintiff’s mark does not make a case exceptional in the absence of a showing of 28 malicious, fraudulent, deliberate or willful conduct. Watec, 403 F.3d at 656; Earthquake Sound 10 1 Corp., 352 F.3d at 1216-17. In the absence of factual allegations of exceptional conduct by 2 Defendants, this Court does not find Plaintiff’s case to be exceptional and denies Plaintiff’s 3 request for attorneys’ fees. 4 F. 5 Because these findings and recommendations recommend entry of judgment against Monetary Damages 6 Defendants for infringement, unfair competition, dilution, and false designation of origin, the 7 Court may award Plaintiff damages including (1) Defendants’ profits, (2) any damages sustained 8 by Plaintiff, and (3) the cost of the action. 15 U.S.C. § 1117(a). If the District Judge determines 9 to adopt these findings and recommendations, the Court may order an accounting of Defendants’ 10 profits as part of its order and a proof hearing to determine Plaintiff’s damages. The Court’s 11 determination of monetary damages, including whether to grant damages, the amount of those 12 damages, and whether those damages should be enhanced under 15 U.S.C. § 1117(b), may then 13 follow. 14 IV. 15 Recommendation Accordingly, the Court RECOMMENDS that judgment be entered in this action against 16 Defendants; that an injunction issue permanently restraining Defendants from the use of any 17 federally designated names and service marks to intentionally create confusion between its store 18 and Plaintiff’s chain of stores; that an accounting of Defendants’ profits be ordered; and that 19 Plaintiff not be awarded attorneys’ fees. 20 These Findings and Recommendations are submitted to the Honorable Lawrence J. 21 O’Neill, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 22 631(b)(1)(B) and Rule 305 of the Local Rules of Practice for the United States District Court, 23 Eastern District of California. Within thirty (30) days after being served with a copy, any party 24 may file written objections with the court, serving a copy on all parties. Such a document should 25 be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Replies to the 26 objections shall be served and filed within ten (10) days after service of the objections. The 27 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The 28 /// 11 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED. 5 Dated: icido3 June 8, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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