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Fuzion Vapor, LLC v. Fumizer, LLC

United States District Court, M.D. Florida, Jacksonville Division

August 30, 2017

FUZION VAPOR, LLC, Plaintiff,
v.
FUMIZER, LLC, Defendant.

          ORDER

          MARCIA MORALES HOWARD, United States District Judge

         THIS CAUSE is before the Court on the Report and Recommendation (Doc. 14; Report), entered by the Honorable Patricia D. Barksdale, United States Magistrate Judge, on July 28, 2017. In the Report, Judge Barksdale recommends that Plaintiff’s Motion for Entry of Default Judgment Against Defendant (Doc. 12; Motion) be granted to the extent set forth in the Report, and that the Clerk of the Court be directed to enter judgment and close the file. See Report at 33-35. Defendant Fumizer, LLC has failed to file objections to the Report, and the time for doing so has now passed.

         The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). If no specific objections to findings of fact are filed, the district court is not required to conduct a de novo review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see also 28 U.S.C. § 636(b)(1). However, the district court must review legal conclusions de novo. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); United States v. Rice, No. 2:07-MC-8-FTM-29SPC, 2007 WL 1428615, at *1 (M.D. Fla. May 14, 2007).

         Upon independent review of the file and for the reasons stated in the Report, the Court will accept and adopt the legal and factual conclusions recommended by the Magistrate Judge.[1] Accordingly, it is hereby

         ORDERED:

         1. The Magistrate Judge’s Report and Recommendation (Doc. 14) is ADOPTED as the opinion of the Court.

         2. Count V of the Complaint and Demand for Jury Trial (Doc. 1) is DISMISSED.

         3. Plaintiff’s Motion for Entry of Default Judgment Against Defendant (Doc. 12) is GRANTED, in part, and DENIED, in part.

         4. The Motion is GRANTED to the extent that:

         a. The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff Fuzion Vapor, LLC and against Defendant Fumizer, LLC, with respect to Count I, Count II, Count III, and Count IV of the Complaint in the amount of $15,867.50 in attorney’s fees pursuant to 15 U.S.C. § 1117(a), and $465 in costs pursuant to 28 U.S.C. § 1920. Post-judgment interest will accrue at the statutory rate set forth in 28 U.S.C. § 1961.

         b. The Clerk of the Court is further DIRECTED to enter a judgment of permanent injunction in favor of Plaintiff Fuzion Vapor, LLC and against Defendant Fumizer, LLC as follows:

Fumizer, LLC; its affiliated entities, servants, agents, representatives, employees, and successors; and all other persons in active concert or participation with any or all of them, who receive actual notice of the judgment by personal service or otherwise, are permanently enjoined from:
a) using the FUMI VAPOR, FUMIVAPOR, and FV marks, the FV design mark, the Fumi Vapor trade name, fumivapor.com, or any other colorable imitation of those marks or Fuzion Vapor, LLC’s FUZION VAPOR mark or FV design mark, in advertising, promoting, merchandising, distributing, offering for sale, and selling electronic-cigarette products and services and any products or services relating to electronic cigarettes or their use;
b) expressly or impliedly representing to customers, potential customers, or the public that any electronic-cigarette products and services or other products or services related to electronic cigarettes or their use ...

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