Adidas AG et al v. Wu et al, No. 1:2011cv24094 - Document 47 (S.D. Fla. 2012)
Court Description: ORDER granting 45 Motion for Default Judgment Signed by Judge Marcia G. Cooke on 9/28/2012. (tm)
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Adidas AG et al v. Wu et al Doc. 47 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 11-24094-Civ-COOKE/TURNOFF ADIDAS AG, et al., Plaintiffs, vs. DANYU WU, et al., Defendants, / DEFAULT JUDGMENT THIS MATTER is before me on Plaintiffs’ Motion for Entry of Final Default Judgment Against Defendants. (ECF No. 45). On November 14, 2011, Plaintiff filed a Complaint for Damages and Injunctive Relief against Defendants, the partnerships and unincorporated associations identified on Schedule “A” hereto (collectively, “Defendants”). (ECF No. 1). On June 8, 2012, Plaintiffs filed their First Amended Complaint against Defendants. (ECF No. 32). On August 17, 2012, the Clerk entered a default (ECF No. 41), as to Defendants for failure to answer or otherwise respond to the Summons and First Amended Complaint. Defendants have not responded to this Motion. A “defendant, by his default, admits the plaintiff's well-pleaded allegations of fact,” as set forth in the operative complaint. Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009). Following the entry of a default judgment, damages may be awarded “without a hearing [if the] amount claimed is a liquidated sum or one capable of mathematical calculation,” so long as all essential evidence is a matter of record. S.E.C. v. Dockets.Justia.com Smyth, 420 F.3d 1225, 1231, 1232 n.13 (11th Cir. 2005) (quoting Adolph Coors Co. v. Movement Against Racism & the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985)). As to Count I (Trademark Counterfeiting and Infringement), 15 U.S.C. § 1117(c) provides that a plaintiff may elect an award of statutory damages in the sum of not less than $1,000.00 and not more than $200,000.00 per counterfeit mark per type of good. Plaintiffs have elected to recover an award of statutory damages. Plaintiff adidas has presented evidence that Defendants distributed, advertised, offered for sale, and/or sold at least fifteen (15) types of goods that were counterfeits of the adidas trademarks protected by six (6) federal trademark registrations for such goods. Plaintiff Reebok has presented evidence that Defendants distributed, advertised, offered for sale, and/or sold at least four (4) types of goods that were counterfeits of the Reebok trademarks protected by three (3) federal trademark registrations for such goods. Plaintiffs have also presented evidence that Defendants’ conduct was willful. “Statutory damages under § 1117(c) are intended not just for compensation for losses, but also to deter wrongful conduct.” PetMed Express, Inc. v. MedPets.Com, Inc., 336 F. Supp. 2d 1213, 1220-21 (S.D. Fla. 2004). Plaintiffs have requested $6,000.00 for each counterfeit mark per type of good. To reach this amount, Plaintiffs began with a baseline of $1,000.00, trebled the amount to reflect Defendants’ willful conduct pursuant to § 1117(b), and doubled the amount for the purpose of deterrence. The result is $6,000.00 per six (6) counterfeited marks per fifteen (15) types of goods, which amounts to $540,000.00 in statutory damages for Plaintiff adidas. The result is $6,000 per three (3) counterfeited marks per four (4) types of goods, which amounts to $72,000.00 in statutory damages for Plaintiff Reebok. The total of $540,000.000 in statutory damages is a reasonable damages award pursuant to statute for Plaintiff adidas. The total of 2 $72,000.00 in statutory damages is a reasonable damages award pursuant to statute for Plaintiff Reebok. As to Count II (False Designation of Origin), Plaintiffs acknowledge that the judgment must be limited to the amount awarded pursuant to Count I, and the entry of a permanent injunction. Plaintiffs have presented sufficient evidence that they are entitled to a permanent injunction. See Petmed Express, Inc., 336 F. Supp. 2d at 1222-23. As to Count III (Cybersquatting), Plaintiffs have presented sufficient evidence that Defendants violated the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d). The ACPA provides that a Court may “order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark.” 15 U.S.C. § 1125(d)(1)(c). Plaintiffs are entitled to the transfer and ownership of Defendants’ domain names, which are confusingly similar to the adidas and Reebok trademarks. Additionally, Plaintiffs may recover actual damages or statutory damages of not less than $1,000.00 and not more than $100,000.00 per domain name. 15 U.S.C. § 1117(d). Plaintiffs have elected statutory damages. Plaintiff adidas requests $10,000.00 for each of the twenty four (24) pirated domain names, for a total award of $240,000.00. Plaintiff Reebok requests $10,000.00 for each of the five (5) pirated domain names, for a total award of $50,000. In light of Defendants’ intentional, wrongful behavior, the total of $240,000.00 in statutory damages for Plaintiff adidas and $50,000 in statutory damages for Plaintiff Reebok are reasonable damages awards pursuant to statute. See, e.g., Petmed Express, Inc., 336 F. Supp. 2d at 1221-22; Transamerica Corp. v. Moniker Online Servs., Inc., Case No. 09-cv-60973-CMA, 2010 WL 1416979, at *4 (S.D. Fla. Apr. 7, 2010). Further, courts in this district have entered similar orders to transfer domain names in cases with similar facts. See, e.g., Louis Vuitton Malletier, S.A. v. Zhen Zhou, Case No. 10-cv- 3 62202-MGC (S.D. Fla. Apr. 18, 2011); Chanel, Inc. v. Guofeng Liu, Case No. 10-cv-61972-UU (S.D. Fla. Feb. 7, 2011); Chanel, Inc. v. Zhiqing, Case No. 10-cv-60382-AJ (S.D. Fla. Aug. 6, 2010). Finally, costs are recoverable pursuant to 15 U.S.C. § 1117(a). Plaintiffs submit that they are entitled to receive $700.00 in fees, consisting of the filing fee and the process server fee. These costs are reasonable. Accordingly, it is ORDERED and ADJUDGED that the Plaintiffs’ Motion for Entry of Final Default Judgment Against Defendants (ECF No. 45) is GRANTED, as follows: 1. Final default judgment is entered in favor of Plaintiffs, adidas AG, adidas International Marketing B.V., and adidas America, Inc., (together, “adidas”) and Reebok International Limited and Reebok International Ltd., (together, “Reebok”) and against Defendants. Plaintiff adidas is awarded judgment in the amount of $780,350.00, for which sum let execution issue. This amount consists of $540,000.00 in statutory damages pursuant to 15 U.S.C. § 1117(c); $240,000.00 in statutory damages pursuant to 15 U.S.C.§ 1117(d); and $350.00 in costs pursuant to 15 U.S.C. § 1117(a). Plaintiff Reebok is awarded judgment in the amount of $122,350.00, for which sum let execution issue. This amount consists of $72,000.00 in statutory damages pursuant to 15 U.S.C. § 1117(c); $50,000.00 in statutory damages pursuant to 15 U.S.C. § 1117(d); and $350.00 in costs pursuant to 15 U.S.C. § 1117(a). 2. All funds restrained in the Western Union Financial Services, Inc. (“Western Union”) accounts related to the Western Union account recipient “Danyu Wu,” or which funds are associated with the Money Transfer Control Number, 062-664-6191, and any other related accounts of the same customer(s), shall be transferred to Plaintiffs in partial satisfaction of the monetary judgment entered herein. 4 3. Plaintiffs shall recover post-judgment interest at the rate prescribed by 28 U.S.C. § 1961. 4. The Clerk is directed to release the bond posted by Plaintiffs in the amount of $10,000.00. 5. Permanent Injunction Relief: Defendants and their officers, agents, servants, employees and attorneys, and all persons acting in concert and participation with Defendants are hereby permanently restrained and enjoined from: a. manufacturing or causing to be manufactured, importing, advertising, or promoting, distributing, selling or offering to sell counterfeit and infringing goods using the adidas Marks identified in Paragraph 12 of the First Amended Complaint (the “adidas Marks”) and the Reebok trademarks identified in Paragraph 20 of the First Amended Complaint (the “Reebok Marks”); b. using the adidas Marks and the Reebok Marks in connection with the sale of any unauthorized goods; c. using any logo, and/or layout which may be calculated to falsely advertise the services or products of Defendants offered for sale or sold via the domain names identified on Schedule “A” hereto (collectively the “Subject Domain Names”) and/or any other website or business, as being sponsored by, authorized by, endorsed by, or in any way associated with Plaintiffs; d. falsely representing themselves as being connected with Plaintiffs, through sponsorship or association; e. engaging in any act which is likely to falsely cause members of the trade and/or of the purchasing public to believe any goods or services of Defendants offered for sale or sold via the Subject Domain Names and/or any other website or business are in any way endorsed by, approved by, and/or associated with Plaintiffs; f. using any reproduction, counterfeit, copy, or colorable imitation of the adidas Marks and the Reebok Marks in connection with the publicity, promotion, sale, or advertising of any goods sold by Defendants via the Subject Domain Names and/or any other website or business, including, without limitation, sports and leisure wear, namely, suits, shirts, t-shirts, polo shirts, jerseys, jackets, track suits, and warm-up suits; headgear, namely hats; athletic footwear and leisure foot wear, namely boots, sandals, specific purpose athletic shoes and general purpose sports shoes; and all-purpose sport bags, athletic bags, and backpacks bearing the adidas Marks and footwear and 5 apparel namely shirts, t-shirts, and athletic uniforms bearing the Reebok Marks; g. affixing, applying, annexing or using in connection with the sale of any goods, a false description or representation, including words or other symbols tending to falsely describe or represent goods offered for sale or sold by Defendants via the Subject Domain Names and/or any other website or business, as being those of Plaintiffs or in any way endorsed by Plaintiffs; h. otherwise unfairly competing with Plaintiffs; i. effecting assignments or transfers, forming new entities or associations or utilizing any other device for the purpose of circumventing or otherwise avoiding the prohibitions set forth above; and j. using the adidas Marks and the Reebok Marks, or any confusingly similar trademarks, within domain name extensions, metatags or other markers within website source code, from use on any webpage (including as the title of any web page), any advertising links to other websites, from search engines’ databases or cache memory, and any other form of use of such terms which is visible to a computer user or serves to direct computer searches to websites registered by, owned, or operated by Defendants, including the Internet websites operating under all of the Subject Domain Names. 6. Additional Equitable Relief: a. In order to give practical effect to the Permanent Injunction, the Subject Domain Names are hereby ordered to be immediately transferred by Defendants, their assignees and/or successors in interest or title, and the Registrars to Plaintiffs’ control. To the extent the current Registrars do not facilitate the transfer of the domain names to Plaintiffs’ control within five (5) days of receipt of this judgment, the Registries shall, within thirty (30) days, change the Registrar of Record for the Subject Domain Names to a United States based Registrar of Plaintiffs’ choosing, and that Registrar shall transfer the Subject Domain Names to Plaintiffs; b. Upon Plaintiff’s request, the top level domain (TLD) Registry for each of the Subject Domain Names, within thirty (30) days of receipt of this Order, shall place the Subject Domain Names on Registry Hold status for the life of the current registration, thus removing them from the TLD zone files maintained by the Registry which link the Subject Domain Names to the IP addresses where the associated websites are hosted; and c. Upon Plaintiff’s request, the Internet Corporation for Assigned Names and Numbers (“ICANN”) shall take all actions necessary to ensure that the top level domain Registry responsible for the Subject Domain Names transfers and/or disables the Subject Domain Names. 6 6. The Clerk is directed to CLOSE this case. All pending motions, if any, are DENIED as moot. DONE and ORDERED in chambers at Miami, Florida, this 28th day of September 2012. Copies furnished to: William C. Turnoff, U.S. Magistrate Judge Counsel of record 7 SCHEDULE A DEFENDANTS BY NUMBER AND SUBJECT DOMAIN NAMES Defendant 1 2010shopjerseys.net Defendant 2 2010shopjerseys.org Defendant 3 4adidas.com Defendant 4 888shop-jerseys.com 888shopjerseys.com ccmjerseys.com ccmjerseys.org Defendant 5 adiclothing.com Defendant 7 adidasempire.com Defendant 8 adidas-f50-adizero.com Defendant 9 adidasf50adizeroshop.com mercurial2012.com Defendant 10 adidasf50shoes.com wholesalenikemercurial.com Defendant 11 adidasjeremyscott.com Defendant 12 adidasjp.com Defendant 14 adidas-online-shop.com Defendant 16 adidasporschedesignde.com Defendant 17 adidassbounce.com Defendant 18 adidasscarpecalcio.com Defendant 19 adidasshoes001.com Defendant 20 adidasshoessite.com adidasshoeshop.com Defendant 21 adidassmith.com Defendant 22 adidassuperstarshoes.com Defendant 24 adidastour360.com Defendant 25 adidaswings.com Defendant 27 airmaxshopchina.com selladidas.com Defendant 28 autobotshop.com Defendant 29 buyjerseysonline.com Defendant 30 buyjerseyswholesale.com Defendant 31 buyteamsportsuniforms.com 8 Defendant 32 caminio.com caminio.at Defendant 33 ccmjersey.com Defendant 35 cheap001.com Defendant 36 cheap999.com Defendant 37 cheapjerseysfromchina.com jerseysfromchina.biz Defendant 38 cheapkicksforsale.com Defendant 40 cheapshopping4u.com cheapnikeshoes2u.com Defendant 41 cn-jerseys.com Defendant 42 everysportuniforms.com Defendant 43 fashion333.com Defendant 46 footballjerseys4sale.com Defendant 47 gsdiscount.com Defendant 48 helloadidas.com Defendant 49 ilove-shopping.org b2cshop.us love-shopping.org loveshopping.us iloveushopping.com Defendant 50 indoor-soccershoes.com indoor-soccershoess.com Defendant 51 inthestyleshop.com Defendant 52 jeremyscottsadidas.com Defendant 53 jeremyscottwing.com Defendant 54 jerseysforcheap.biz jerseysfromchina.net Defendant 55 jerseysfromchina.com jerseysfromchina.org jerseysfromchina.asia Defendant 56 jerseysfromchina.info Defendant 57 jerseysfull.com superstonejerseys.com Defendant 58 jerseys-googler.com Defendant 59 lovinadidas.com Defendant 60 lowestbestexport.com 9 Defendant 61 mercurialshoesoutlet.com Defendant 62 nba-basketball-shoes.net Defendant 63 nba-home.com Defendant 64 nikemercurialshoes.com nikemercurialvaporsuperfly3.com Defendant 65 nike-mercurial-store.com nikemercurialvaporsales.com Defendant 66 nikeshoes001.com Defendant 67 onlinesoccerboots.co.uk Defendant 68 outlet-jerseys.com Defendant 69 plentystock.com Defendant 70 ptjerseys.com Defendant 71 ptjerseys.net Defendant 72 ptjerseys.org Defendant 73 reebok123.com Defendant 74 reebokeasytoneonline.com Defendant 75 reebok-member.com nfl-depot.com reebokmember.com reeboktrade.com sportjerseystown.org sportjerseys-town.net Defendant 77 shopadicolor.com Defendant 78 shopsoccerjerseys.com Defendant 79 soccercleats4u.com Defendant 80 soccercleatsnike.com Defendant 81 soccercleatsshoes.com Defendant 82 soccer-cleats-shoes.com adidaspredatoroutlet.com Defendant 83 soccerjerseycenter.com Defendant 84 socceroutlets.com socceroutletss.com Defendant 85 soccershoes4you.com Defendant 86 soccershoesforsales.com Defendant 87 soccershoesproducts.com nikemercurialoutlets.com Defendant 88 soccershoesstores.com 10 Defendant 89 soccerusa4you.com officialsoccershoes.com Defendant 90 supercheapsoccer.com Defendant 92 toahk.com Defendant 93 topjerseysorder.com sportsjerseys-town.net Defendant 94 tradeccc.net mosscc.net Defendant 95 trikotdiscount.com shopdata12.net trikotdiscount.at trikotdiscount.net trikotdiscount.org Defendant 96 usa-soccer-jersey.com Defendant 98 various-jersey-wholesale.com Defendant 99 well-sports.com inthestyleshop.com Defendant 100 wholesale-from-china.com Defendant 101 wholesalejerseysfromchina.com jerseysfromchina.co Defendant 103 womenadidas.com Defendant 104 world-jerseys.com Defendant 105 world-soccer-shoes.com 11
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