United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
R. HOFFMAN UNITED STATES MAGISTRATE JUDGE
THE UNITED STATES DISTRICT COURT:
cause came on for consideration without oral argument on the
following motion filed herein:
MOTION: MOTION FOR DEFAULT JUDGMENT AGAINST ALL DEFENDANTS
(Doc. No. 16)
FILED: July 10, 2019
THEREON it is RECOMMENDED that the motion be GRANTED IN PART
AND DENIED IN PART.
January 7, 2019, Plaintiffs filed a complaint against
Defendants seeking injunctive relief and statutory damages
for willful trademark infringement, counterfeiting, and false
designation of origin/unfair competition under the Lanham
Act, 15 U.S.C. § 1051, et seq. Doc. No. 1.
Plaintiffs seek relief pursuant to 15 U.S.C. §§
1114, 1116(d), 1118, and 1125(a). Id. at 11-19.
RooR International BV (“RooR”) is the registered
owner of the “RooR” trademark. Id.
¶ 5. Plaintiff Sream, Inc. (“Sream”) is the
exclusive United States licensee authorized to use the
“RooR” trademark and has been granted authority
by RooR to police and enforce the “RooR”
trademark within the United States. Id. ¶ 6;
see Doc. No. 1-3.
allege that “RooR” branded products include
borosilicate jointed-glass water pipes, parts, and
accessories. Id. at 3. The “RooR” brand
is one of the leading companies in the industry and has been
recognized for its innovative products and designs.
Id. These products are highly renowned for their
ornate and innovative characteristics. Id.
Roor's products are made from superior materials and are
handblown by individual artists. Id. at 6.
RooR's federally registered trademarks include U.S.
Trademark Registration Numbers: 2, 235, 638; 2, 307, 176; and
3, 675, 839 for the trademark “RooR.” Doc. No. 1,
at 4; Doc. No. 1-1; Doc. No. 1-2.
allege that Defendants have, without their consent, offered
for sale in the United States counterfeit goods using
reproductions, counterfeits, copies, and/or colorable
imitations of one or more of the “RooR” marks.
Doc. No. 1, at 8. Plaintiffs include with the complaint
photographs of the counterfeit goods. Doc. No. 1-5.
Defendants' offer of counterfeit goods under the
infringing marks has resulted in loss of business, customers,
contracts, and sales for Plaintiffs. Doc. No. 1, at 11.
Plaintiffs allege that Defendants' unauthorized use of
the counterfeit marks is likely to cause confusion or mistake
in the minds of the public and creates a false impression
that the water pipes offered for sale by Defendants are
authorized or approved by Plaintiffs. Id. at 8-11.
Plaintiffs allege that Defendants' conduct constitutes
willful trademark infringement. Id. at 13.
Plaintiffs allege that the lost profits are difficult to
determine, and they seek statutory damages, costs, and
injunctive relief. Id. at 14. With respect to their
false designation claim, 15 U.S.C. § 1125(a), Plaintiffs
allege they have no adequate remedy at law. Id. at
Ocean Shore Food Mart, Inc. (“Ocean Shore”) was
served with process on January 16, 2019. Doc. No. 9. On
February 22, 2019, upon Plaintiffs' motion a Clerk's
default was entered against Ocean Shore. Doc. Nos. 10, 11.
Defendant Askander Mirza was served with process on February
26, 2019. Doc. No. 13. On May 29, 2019, upon Plaintiffs'
motion, a Clerk's default was entered against him. Doc.
Nos. 14, 15. On July 10, 2019, Plaintiffs filed a
Motion for Default Final Judgment Against All Defendants.
Doc. No. 16. In the motion, Plaintiffs seek $15, 000.00 in
statutory damages, $904.21 in costs, and a permanent
injunction against Defendants. Id. In a proposed
order included with the default judgment, Plaintiffs also ask
that the Court order Defendants to deliver the infringing
products to Plaintiffs for destruction, and Plaintiffs ask
that the Court retain jurisdiction pertaining to matters
related to the judgment. See Doc. No. 16-4 (proposed
“Order and Judgment”).
Motion for Default Final Judgment Against All Defendants
(Doc. No. 16) was referred to the undersigned for issuance of
a Report and Recommendation, and the matter is ripe for
STANDARD OF REVIEW.
may enter a default judgment only if the factual allegations
of the complaint, which are assumed to be true, provide a
sufficient legal basis for such entry. See Nishimatsu
Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200,
1206 (5th Cir. 1975) (“The defendant is not held to
admit facts that are not well-pleaded or to admit conclusions
of law.”). Therefore, in considering a motion for
default judgment, a court must “examine the sufficiency
of plaintiff's allegations to determine whether plaintiff
is entitled to” a default judgment. Fid. &
Deposit Co. of Md. v. Williams, 699 F.Supp. 897, 899
complaint need not contain detailed factual allegations,
“but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading
that offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). This analysis applies equally to
motions for default judgment. De Lotta v. Dezenzo's
Italian Rest., Inc., No. 6:08-cv-2033-Orl-22KRS, 2009 WL
4349806, at *5 (M.D. Fla. Nov. 24, 2009) (citations omitted).
plaintiff seeks damages, the plaintiff bears the burden of
demonstrating entitlement to recover the amount of damages
sought in the motion for default judgment. Wallace v. The
Kiwi Grp., Inc., 247 F.R.D. 679, 681 (M.D. Fla. 2008).
Unlike well-pleaded allegations of fact, allegations relating
to the amount of damages are not admitted by virtue of
default; rather, the court must determine both the amount and
character of damages to be awarded. Id. (citing
Miller v. Paradise of Port Richey, Inc., 75
F.Supp.2d 1342, 1346 (M.D. Fla. 1999)). Ordinarily, unless a
plaintiff's claim against a defaulting defendant is for a
liquidated sum or one capable of mathematical calculation,
the law requires the district court to hold an evidentiary
hearing to fix the amount of damages. See Adolph Coors
Co. v. Movement Against Racism & the Klan, 777 F.2d
1538, 1543-44 (11th Cir. 1985). However, no hearing is needed
“when the district court already has a wealth of
evidence . . . such that any additional evidence would be
truly unnecessary to a fully informed determination of
damages.” See S.E.C. v. Smyth, 420 F.3d 1225,
1232 n.13 (11th Cir. 2005); see also Wallace, 247
F.R.D. at 681 (“[A] hearing is not necessary if
sufficient evidence is submitted to support the request for