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RooR International BV v. Ocean Shore Food Mart, Inc.

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

September 20, 2019

ROOR INTERNATIONAL BV and SREAM, INC., Plaintiffs,
v.
OCEAN SHORE FOOD MART, INC. and ASKANDER MIRZA, Defendants.

          REPORT AND RECOMMENDATION

          LESLIE R. HOFFMAN UNITED STATES MAGISTRATE JUDGE

         TO THE UNITED STATES DISTRICT COURT:

         This 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.

         I. BACKGROUND.

         On 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.

         Plaintiff 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.

         Plaintiffs 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.

         Plaintiffs 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 17.

         Defendant 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.[1] 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”).

         The 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 review.

         II. STANDARD OF REVIEW.

         A court 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.”).[2] 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 (N.D.Ga. 1988).

         A 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).

         If the 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 damages.”).

         III. ANALYSIS.

         A. Trademark ...


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