Otter Products, LLC v. BH Electronics of NY, Inc. et al, No. 1:2020cv04869 - Document 25 (S.D.N.Y. 2020)
Court Description: FINAL JUDGMENT AND INJUNCTION BY DEFAULT AGAINST DEFENDANTS BH ELECTRONICS OF NY, INC. AND BAROUKH BARAKAT, BOTH DOING BUSINESS AS "BHONESTOPSHOP". The Court does hereby ORDER, AND DECREE as follows: As a result of Defendants' unlawful conduct, OtterBox is entitled to the entry of a permanent injunction against Defendants. Accordingly, the Court hereby permanently enjoins and restrains Defendants and their employees, agents, servants, successors, and assigns, and all those acting in concert or participation therewith, from using any counterfeit or infringement of the Otter Products Registered Trademarks to identify any goods not authorized by Plaintiff; counterfeiting or infringing the Otter Products Registered Trademarks by importing, manufacturing, distributing, selling, offering for sale, advertising, promoting, displaying any products bearing any simulation, reproduction, counterfeit, or copy of the Otter Products Registered Trademarks and as further set forth in thi s Judgment. Pursuant to and in accordance with 15 U.S.C. § 1117(c), the Court hereby Orders Defendants to pay OtterBox the sum of $100,000 as an award of statutory damages for Defendants of trademark counterfeiting. Said award to Otter Box shall bear interest from the date of this judgment at the rate provided by law. Pursuant to and in accordance with 15 U.S.C. § 1117 and applicable law, OtterBox shall also have and recover from Defendants: (a) costs incurred in this action in th e sum of $605.92, with interest thereon at the rate provided by law. That Defendants be required to deliver up for destruction to OtterBox all unauthorized materials bearing any of the Otter Products Registered Trademarks in association with una uthorized goods or services and the means for production of same pursuant to 15 U.S.C. § 1118. This Final Judgment and Injunction by Default, is deemed served on Defendants as of entry therein. The terms of this Final Judgment and Permanent Inju nction shall govern and bind the activities of the Defendants, their agents, servants, employees, and attorneys, and all persons in active concert or participation therewith. All claims asserted against "John Doe" defendants are dismissed w ithout prejudice. All other claims asserted against Defendants are dismissed with prejudice. This Court reserves and retains jurisdiction of the subject matter of this cause and of the parties hereto for the purpose of enforcing the terms of this Final Judgment and Injunction by Default. (John Does 1-5, BH Electronics of NY, Inc. and Baroukh Barakat terminated.) (Signed by Judge Alvin K. Hellerstein on 11/10/20) (yv)
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Otter Products, LLC v. BH Electronics of NY, Inc. et al Doc. 25 F-:-======== , ~JSDC SDNY 1 CUMENT LECTRONICALL Y }· f LED \ •( /1_ ..£; .-'\.lE FILED: 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ~- • _ .n,n 0 ./2:~ . CASE NO. 1:20-cv-04869 (AKH) OTTER PRODUCTS, LLC, Plaintiff, V. BH ELECTRONICS OF NY, INC.; and BAROUKH BARAK.AT both doing business as "BHONESTOPSHOP;" and "JOHN DOES" 1-5; [ INAL JUDGMENT AND INJUNCTION BY DEFAULT AGAINST DEFENDANTS BH ELECTRONICS OF NY, INC. AND BAROUKH BARAKAT, BOTH DOING BUSINESS AS "BHONESTOPSHOP" Defendants. THIS CAUSE comes before the Court on the Motion of plaintiff Otter Products, LLC ("OtterBox") for the entry of a Final Judgment and Injunction by Default against defendant BH Electronics of NY, Inc. and defendant Baroukh Barakat, both doing business as "bhonestopshop" (hereinafter collectively referred to as "Defendants"). The Court, having considered all pleadings and other documents filed in this action, hereby directs the entry of this Final Judgment and Injunction by Default against Defendants. Accordingly, the Court does hereby ORDER, .,JPJIFD(ii]li, AND DECREE as follows: 1. This Court has jurisdiction over the subject matter of this action. 2. Venue is proper in the Southern District of New York. 3. Defendants are subject to the jurisdiction of this Court pursuant to and in accordance with the laws of the State of New York, the United States Constitution, and Rule 4 of the Federal Rules of Civil Procedure. 4. OtterBox is the owner of, including, but not limited to, the following federal trademarks (hereinafter collectively referred to as the "Otter Products Registered Trademarks"), which are registered in the U.S . Patent and Trademark Office: Dockets.Justia.com Trademark Reg. No. Reg. Date OTTER BOX 3,788 ,5 35 05/11 /2010 OIIERBOX 4,602,221 09/09/2014 DEFENDER SERIES 4,616,874 10/07/2014 COMMUTER 3,791,317 05/18/2010 ON THE GO PROTECTION 5,044,003 09/20/2016 2 Goods I Services IC 009. US 021 023 026 036 038. G & S: Protective cases for handheld electronic devices, namely, portable music playe rs, portable vi deo players, cell phones and computers; specially adapted protective carrying cases for computers. IC 009. US 021 023 026 036 038. G & S: Protective covers and cases for handheld electronic devices, namely, cell phones, portable media players, tablets, personal digital assistants, e-book readers, and computers; protective covers and cases for computers. IC 009. US 021 023 026 036 03 8. G & S: Protective covers and cases for personal electronic devices, namely, cell phones. IC 009. US 021 023 026 036 038 . G & S: Protective cases for handheld electronic devices, namely, portable music players , portable video players, cell phones and computers; specially adapted protective carrying cases for computers. IC 009. US 021 023 026 036 038 . G & S: Protective cases and covers for mobile electronic devices, namely, smartphones, tablets, computers, e-book readers, portable media players; protective cases and covers with integrated batteries for use with mobile electronic devices, namely, smartphones, tablets, computers, e-book readers, portable media players; bags, folios and carrying cases specially adapted for mobile electronic devices, namely, smartphones, tablets, computers, e-book readers, portable media players; carrying cases, protective cases and stands 3,791,318 05/ 18/2010 COMMUTER SERIES 3,963,182 05/ 17/2011 SYMMETRY SERIES 4,709,178 03 /24/2015 4,990,232 OTTERBOX CERTIFIED DROP+ PROTECTION 3 06/28/2016 featuring power supply connectors, adaptors, speakers and battery charging devices, specially adapted for use with mobile electronic devices, namely, smartphones, tablets, computers, e-book readers, portable media players; accessories specially adapted for smartphones, tablets, computers, e-book readers and portable media players, namely, mounting devices, tablet mounts and docking stations. IC 009. US 021 023 026 036 038. G & S: Protective cases for handheld electronic devices, namely, portable music players, portable video players, cell phones and computers; specially adapted protective carrying cases for com uters. IC 009. US 021 023 026 036 038 . G & S: Protective cases for handheld electronic devices, namely, multifunctional mobile phones, portable music players, portable video players and com uters. IC 009. US 021 023 026 036 038 . G & S: Protective covers and cases for handheld electronic devices, namely, cell phones, portable media players, tablets, personal digital assistants, e-book readers, and computers. IC 009. US 021 023 026 036 038 . G & S: Protective cases, covers and housings for personal electronic devices, namely, mobile phones, smartphones, tablets, e-book readers, and portable media players; protective cases and covers with integrated batteries for use with mobile electronic devices, namely, mobile phones, smartphones, tablets, e-book readers, and portable media players; display screen rotectors for rovidin 4,293,603 4 02/19/2013 protection, shade, and privacy specially adapted to personal electronic devices, namely, mobile phones, smartphones, tablets, e-book readers, and portable media players; protective display screen covers for personal electronic devices, namely, mobile phones, smartphones, tablets, e-book readers, and portable media players; headphones and headphone adaptors; accessories specially adapted for holding personal electronic devices, namely, mobile phones, smartphones, tablets, e-book readers, and portable media players, namely, belt clips, armbands; accessories specially adapted for personal electronic devices, namely, mobile phones, smartphones, tablets, e-book readers, and portable media players, namely, mounting devices, desk stands, tablet mounts, docking stations, table mounts, bar mounts and mount ada ters. IC 009. US 021 023 026 036 038 . G & S: Protective cases for handheld electronic devices, namely, portable music players, portable video players, cell phones and computers; specially adapted protective carrying cases for computers. Giving Baclc 5,356,304 12/12/2017 GIVING BACK 5. IC 009. US 021 023 026 036 038. G & S: Protective cases and covers for mobile electronic devices, namely, smartphones, tablet computers; protective cases and covers adapted to accommodate external accessories for use with mobile electronic devices, namely, smartphones, tablet computers; accessories specially adapted for use with protective cases and covers for smartphone, tablet computers, namely, batteries and power management systems in the nature of external batteries, battery boxes, and battery chargers. OtterBox is responsible for assembling, finishing, marketing, and selling in interstate commerce high-quality OtterBox merchandise, including but not limited to protective cell phone cases. 6. OtterBox is the exclusive distributor and warrantor in the United States of OtterBox merchandise, all of which bear one or more of the Otter Products Registered Trademarks. 7. OtterBox merchandise is identified by the trade name and trademark OTTERBOX® and one or more of the Otter Products Registered Trademarks. 8. OtterBox has used the Otter Products Registered Trademarks in the United States and in interstate commerce for many years. 9. The Otter Products Registered Trademarks are entitled to protection under the federal trademark laws and under the laws of the State of New York. 10. On June 25 , 2020, Otter Box filed its Complaint against Defendants. 11. An examination of the Court's files and records in this case indicates that Defendants were served with the herein Summons and Complaint. 5 12. Defendants have failed to file an answer or otherwise defend this action, as required 13 . On August 17, 2020, defaults were entered by the Clerk of the Court against by law. Defendants. 14. As a result of Defendants' default, Defendants are deemed to have admitted the allegations contained in OtterBox's Complaint. ~( .JI ox for willful and malicious trademark Complaint. Therefore, Defen 16. As a result of Defendants' unlawful conduct, OtterBox is entitled to the entry of a permanent injunction against Defendants. Accordingly, the Court hereby permanently enjoins and restrains Defendants and their employees, agents, servants, successors, and assigns, and all those acting in concert or participation therewith, from: a) using any counterfeit or infringement of the Otter Products Registered Trademarks to identify any goods not authorized by Plaintiff; b) counterfeiting or infringing the Otter Products Registered Trademarks by importing, manufacturing, distributing, selling, offering for sale, advertising, promoting, displaying any products bearing any simulation, reproduction, counterfeit, or copy of the Otter Products Registered Trademarks; c) using any simulation, reproduction, counterfeit, or copy of the Otter Products Registered Trademarks in connection with the importation, promotion, advertisement, display, sale, offering for sale, manufacture, production, circulation or distribution of any unauthorized products in such fashion as to relate or connect, or tend to relate or connect, such products in any way to Plaintiff, or to any goods sold, manufactured, sponsored or approved by, or connected with Plaintiff; d) making any statement or representation whatsoever, or using any false designation of origin or false description, or performing any act, which can or is likely to lead the trade or public, or individual members thereof, to believe that any services provided, products manufactured, distributed, sold or offered for sale, or rented by Defendants are in any way associated or connected with Plaintiff; 6 e) engaging in any other conduct constituting an infringement of the Otter Products Registered Trademarks, of Plaintiffs rights in, or to use or to exploit, said trademark, or constituting any weakening of Plaintiffs names, reputations, and goodwill. 17. Pursuant to and in accordance with 15 U.S.C. § 1117(c ), the Court hereby Orders _9~ t)Q llTD Defendants to . pay OtterBox the sum T' k,8QQ-O as an award of statutory damages for Defendants' co iii:liiul ttMi of trademark counterfeiting. Said award to OtterBox shall bear interest from the date of this judgment at the rate provided by law. 18. Pursuant to and in accordance with 15 U.S .C . § 1117 and applicable law, OtterBox shall also have and recover from Defendants: (a) costs incurred in this action in the sum of $605.92, with interest thereon at the rate provided by law. 19. Within ten (10) days of the date of this Final Judgment and Injunction by Default, Defendants shall take all steps necessary to remove from all websites and/or accounts to which Defendants own or control, all text or any other media bearing Otter Products Registered Trademarks, or any marks confusingly similar hereto. 20. Within thirty (30) days of the date of this Final Judgment and Injunction by Default, Defendants shall file and serve OtterBox with a sworn statement setting forth in detail the manner and form in which Defendants have complied with this Final Judgment and Injunction by Default, including its injunctive provisions. 21. That Defendants be required to deliver up for destruction to OtterBox all unauthorized materials bearing any of the Otter Products Registered Trademarks in association with unauthorized goods or services and the means for production of same pursuant to 15 U.S.C. § 1118. 7 . . s er 11 U.S.C. § 523(a)(6), the sums awarded to y resses including but not limited to: bhelectronicsny@yahoo.com and 24. This Final Judgment and Injunction by Default, is deemed served on Defendants as of entry therein. 25. The tenns of this Final Judgment and Permanent Injunction shall govern and bind the activities of the Defendants, their agents, servants, employees, and attorneys, and all persons in active concert or participation therewith. 26 . All claims asserted against "John Doe" defendants are dismissed without prejudice. 27. All other claims asserted against Defendants are dismissed with prejudice. 28. This Court reserves and retains jurisdiction of the subject matter of this cause and of the parties hereto for the purpose of enforcing the terms of this Final Judgment and Injunction by Default. Dated: 1(-/0 , 2020 Alvin K. Hellerstein nited States District Court Judge 8
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