Fendi Adele, S.r.l. v. ALEXANDER OTT et al, No. 0:2016cv60618 - Document 48 (S.D. Fla. 2016)
Court Description: ORDER granting 45 Motion for Default Judgment ; granting 45 Motion for Permanent Injunction. Closing Case. Motions Terminated: 45 Plaintiff's MOTION for Default Judgment Plaintiff's MOTION for Permanent Injunction < i> filed by Fendi Adele, S.r.l.. Signed by Chief Judge K. Michael Moore on 6/27/2016. (dkn) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
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Fendi Adele, S.r.l. v. ALEXANDER OTT et al Doc. 48 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 16-60618-CIV-MOORE FENDI ADELE, S.R.L., Plaintiff, v. ALEXANDER OTT, et al., Defendants. / ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AND PERMANENT INJUNCTION THIS CAUSE came before the Court on Plaintiff’s Motion for Entry of Final Default Judgment (the “Motion”) (ECF No. 45) after the Clerk’s Entry of Default (ECF No. 43). Defendants 1 failed to respond to Plaintiff’s Motion and the time to do so has passed. The Motion is now ripe for review. By the instant Motion, Plaintiff seeks permanent injunctive relief and an award of statutory damages against Defendants for Federal Trademark Counterfeiting and Infringement under 15 U.S.C. §1114 of the Lanham Act, False Designation of Origin under 15 U.S.C. §1125(a) of the Lanham Act, Common Law Unfair Competition, and Common Law Trademark Infringement. The well-pleaded allegations made in Plaintiff’s Complaint (ECF No. 1) are deemed to have been admitted by Defendants by virtue of the default entered against them. Cotton v . Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1277–78 (11th Cir. 2005) (citations omitted). Here, Plaintiff alleges that Defendants engaged in the sale or offering for sale of goods which bore marks which are “identical copies” of Plaintiff’s trademarks through the Internet based e-commerce 1 “Defendants” collectively refers to the Defendants and Seller IDs identified in the attached Schedule A. Dockets.Justia.com marketplace stores operating under the Seller IDs. The Court notes that such marks are within the definition of “counterfeit mark” as used in the Lanham Act. 15 U.S.C. §1116(d)(l)(B)(ii). Thus, the Court finds that Defendants infringed on Plaintiff’s Marks by their use of the counterfeit marks. Accordingly, UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion (ECF No. 45) is GRANTED: 1. It is further ORDERED AND ADJUDGED that, pursuant to Federal Rules of Civil Procedure 55 and 58, Default Final Judgment is hereby entered in favor of Plaintiff and against Defendants as to all Counts of the Complaint. 2. It is further ORDERED AND ADJUDGED that, pursuant to Federal Rule of Civil Procedure 65, Defendants and their officers, agents, servants, employees and attorneys, and all persons acting in concert and participation with them 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 bearing Plaintiff’s trademarks identified in Paragraph 15 of the Complaint (the “FENDI Marks”); b. using the FENDI 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 Internet websites operating under the Internet based e-commerce stores identified on Schedule “A” hereto (collectively the “Seller IDs”) and/or any other e-commerce marketplace store, seller identity or business, as being sponsored by, authorized by, endorsed by, or in any way associated with Plaintiff; d. falsely representing themselves as being connected with Plaintiff, through sponsorship or association; 2 e. f. using any reproduction, counterfeit, copy, or colorable imitation of the FENDI Marks in connection with the publicity, promotion, sale, or advertising of any goods sold by Defendants via the Seller IDs and/or any other e-commerce marketplace store, seller identity, or business; 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 Seller IDs and/or any other e-commerce marketplace store, seller identity, or business, as being those of Plaintiff or in any way endorsed by Plaintiff; h. otherwise unfairly competing with Plaintiff; i. using the FENDI 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), from any advertising links to other websites, 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 ecommerce marketplace stores operating under all of the Seller IDs; and j. 3. 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 Seller IDs and/or any other ecommerce marketplace store, seller identity, or business, are in any way endorsed by, approved by, and/or associated with Plaintiff; 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. It is further ORDERED AND ADJUDGED that Plaintiff is entitled to the following statutory damages in addition to the permanent injunctive relief awarded to Plaintiff: a. Plaintiff is awarded $1,000,000.00 against each Defendant pursuant to 15 U.S.C. § 1117(c), for which let execution issue. 4. All funds currently restrained by Amazon Payments, Inc. (“Amazon”) and PayPal, Inc. (“PayPal”) pursuant to the preliminary injunction (ECF No. 18) in 3 this action are to be immediately (within 5 business days) transferred to Plaintiff in partial satisfaction of the monetary judgment entered herein against each Defendant. Amazon and PayPal shall provide to Plaintiff at the time the funds are released, a breakdown reflecting the (i) total funds restrained in this matter per Defendant; (ii) the total chargebacks, refunds, and/or transaction reversals deducted from each Defendant’s funds restrained prior to release; and (iii) the total funds released per Defendant to Plaintiff. 5. Plaintiff is awarded interest from the date of this Order, compounded annually pursuant to the provisions of 28 U.S.C. §1961. 6. The Court retains jurisdiction to enforce this Judgment and permanent injunction. 7. It is further ORDERED AND ADJUDGED that the bond posted by Plaintiff in the amount of $10,000.00 SHALL BE RELEASED by the Clerk of the Court. The Clerk of the Court is instructed to CLOSE this Case. All pending motions are DENIED AS MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this 27th day of June, 2016. __ ________________________________ K. MICHAEL MOORE CHIEF UNITED STATES DISTRICT JUDGE c: All counsel of record 4 SCHEDULE “A” DEFENDANTS BY SELLER ID AND ASSOCIATED PAYMENT ACCOUNTS Def. No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Seller Display Name ALEXANDER OTT Amanda Presley Amaz0n Fashion classic case shop an an Chaoso Low Best chenchaodong DALKDAD Elliot Rosenau001 Fanqiekuajing E-Commerce Co., Ltd.. If you love me Janet Perkins jayson Manssur Kellycase Liantou Liu linxbox liulangtao LYL Custom Design Marjorie Marinelli meiyi M-Maz MOKEY Rookie Xue Case Somer Lester Shop 2013service888 balevale hvolkan idobeautywigs 5 E-Commerce Store Type Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com Amazon.com eBay.com iOffer.com iOffer.com iOffer.com SCHEDULE “B” DEFENDANTS AND ASSOCIATED PAYMENT ACCOUNTS BY INVESTIGATION 1) Kathleen Burns’ Investigation – Purchases via the Seller IDs on Amazon.com Seller Display Name ALEXANDER 1 OTT Item Purchased mobile phone case A1RCI6NN4NZSZK B00Y2F8C3Q 2 Amanda Presley mobile phone case A2LF7PVGPWSMAC B00Y2F6ZKS Amaz0n Fashion 3 classic case shop mobile phone case ABSR8B2TX0JOU B00XMBXQUK 4 an an mobile phone case AD7YOHS1K2IRU B00XMBXQUK Chaoso Low 5 Best mobile phone case AA3BYZPWOMIMA B015H21DOM 6 chenchaodong mobile phone case A2TYFX59DW7QJA B00Y2F6ZKS 7 DALKDAD mobile phone case A3MF79H6FS5Z30 B00Y2F6ZKS mobile phone case A231J0EI3FZ4O0 B00Y2I24D2 mobile phone case A2JQ85728RI9J B019BBBHDW 10 If you love me mobile phone case ASRFLWNIKJEKC B016NN29ME 11 Janet Perkins mobile phone case A22GL9BY4H8YZR B015GHHJXW 12 jayson Manssur mobile phone case AIM1QM07QRNAJ B0161CN3PE 13 Kellycase mobile phone case A2FUWD3QW92QCB B00Y2F6ZKS 14 Liantou Liu mobile phone case A3KOZSNXZWV1M5 B00Y2F6ZKS 15 linxbox mobile phone case A176K10U1UFHFF B00Y2F9RIU 16 liulangtao mobile phone case A2BHN5SSJ11PTI B00Y2F6ZKS Def. No. Elliot 8 Rosenau001 Fanqiekuajing ECommerce Co., 9 Ltd.. Seller ID 6 Infringing Product ASIN Def. No. Seller Display Name LYL Custom 17 Design Item Purchased mobile phone case A2N99WX6910YV4 B00Y2I4QRY Marjorie 18 Marinelli mobile phone case A3BI02KUQ0W33Q B00Y2F6ZKS 19 meiyi mobile phone case A8ZT0XNUEJMTF B00Y2FBX0K 20 M-Maz mobile phone case A2NB16Y8ZT7GTF B017936WFM 21 MOKEY mobile phone case A23ODPNJB0GO1O B00Y2F6ZKS mobile phone 22 Rookie Xue Case case AMHITOBRZZAAY B00Y2F6ZKS Somer Lester 23 Shop A35X4K5WA48XW4 B01BD0XRRI mobile phone case Seller ID Infringing Product ASIN 2) Kathleen Burns’ Investigation – Purchases via the Seller IDs on eBay.com and iOffer.com Def. No. Seller Display Name 24 25 26 27 2013service888 balevale hvolkan idobeautywigs E-Commerce Item Store Type Purchased mobile eBay phone case iOffer tee-shirt iOffer handbag iOffer Belt 7 PayPal Account lianganbing@gmail.com gokhanbali@live.com fbvolkan2@yandex.com ibeautywigs@hotmail.com
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