XYZ Corporation v. The Individuals, Partnerships and Unincorporated Associations Identified on Schedule A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-22599-CIV-SCOLA/SANCHEZ

EZ SHOOT LLC,

Plaintiff,

v.

THE INDIVIDUALS, PARTNERSHIPS AND

UNINCORPORATED ASSOCIATIONS

IDENTIFIED ON SCHEDULE “A”,

Defendant.

_______________________________________/

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION FOR DEFAULT FINAL JUDGMENT

This matter is before the Court on the Motion for Default Final Judgment Against Certain

Defendants, ECF No. 56, filed by the Plaintiff, EZ SHOOT LLC (“the Plaintiff”). A Clerk’s default

was entered against a number of the Defendants, many of which the Plaintiff has since dismissed.

See ECF Nos. 35, 43, 48, 50, 53, 55. The Plaintiff now seeks entry of final default judgment

against the Defendants listed in Schedule “A” to the Plaintiff’s motion, that is, Defendants

numbered 1 to 4, 6, 7, 10, 11, 14, 18 to 23, 25 to 29, 32, 33, 35, 37, 42, 43, 45, 46, 48, 52 to 54, 56

to 65, 68, 69, 71, 73, 74, 76, 78, 79, 82, 83 (the “Remaining Defendants”).1 ECF Nos. 56, 56-1.

The Honorable Robert N. Scola, United States District Judge, referred the Plaintiff’s motion to the

undersigned for a report and recommendation. ECF No. 57. The Remaining Defendants did not

file a response to the Amended Complaint, to the Plaintiff’s motion for entry of a clerk’s default,

1 Although the Plaintiff listed Defendant No. 66 in its motion for default judgment, the Plaintiff

previously filed a Notice of Voluntary Dismissal as to Defendant No. 66, ECF No. 48, and the

Court entered an order of dismissal as to Defendant No. 66, ECF No. 49. A modified Schedule

“A” listing the Remaining Defendants that are the subject of this Report and Recommendation is

attached to this Report.

or to the motion for default judgment, and the deadlines to do so have long passed. After careful

consideration of the Plaintiff’s filings, the record, and the applicable law, and for the reasons

discussed below, the undersigned RESPECTFULLY RECOMMENDS that the Plaintiff’s

Motion for Default Final Judgment be GRANTED.

1. FACTUAL AND PROCEDURAL BACKGROUND?

Plaintiff sued the Remaining Defendants for trademark counterfeiting and infringement

under Section 32 of the Lanham Act, 15 U.S.C. § 1114; false designation of origin pursuant to

Section 43(a) of the Lanham Act, 15 U.S.C § 1125(a); common law unfair competition; and

common law trademark infringement. ECF No. 9.

The Plaintiff is the owner of all rights in and to the trademark “Sexy Dance,” which is valid

and registered on the Principal Register of the United States Patent and Trademark Office (the

“Plaintiff’s Mark”). ECF No. 9 at § 24; ECF No. 9-2.

Trademark Registration Number | Registration Class/Goods

Date

Sexy Dance 4,781,913 July 18,2015 | Coats; Coats for men and

women; Coats made of cotton;

Dresses; Football shoes;

Leather shoes; Leisure shoes;

Men's socks; Mountaineering

shoes; Pants; Rompers;

Running shoes; Sandals and

beach shoes; Shoes; Slippers;

Socks; Socks and stockings;

Sports bra; Sports pants; Sports

shoes; T-shirts; Trousers;

Underwear; Women's shoes.

The following facts are admitted as a result of the Defendant’s default. See, e.g., Amguard Ins.

Co. v. Super Winn Nail Spa, Inc., No. 23-61304, 2024 WL 996444, at *1 (S.D. Fla. Mar. 5, 2024);

Section II infra.

ECF No. 9 at ¶ 24; ECF No. 9-2. The Plaintiff’s Mark is used in connection with the manufacture

and distribution of high-quality clothing in the categories identified above. ECF No. 9 at ¶ 25.

The Remaining Defendants are not now, nor have they ever been, authorized or licensed to use,

reproduce, or make counterfeits, reproductions, or colorable imitations of the Plaintiff’s Mark.

ECF No. 9 at ¶¶ 32, 61, 68, 79.

The Amended Complaint establishes that the Remaining Defendants are promoting,

selling, offering for sale, and distributing goods bearing counterfeits and confusingly similar

imitations of the Plaintiff’s Mark within the Southern District of Florida through the Remaining

Defendants’ Internet based e-commerce stores operating under each of the corresponding Seller

IDs identified on Schedule “A” of the Plaintiff’s motion (the “Seller IDs”). E.g., ECF No. 9 at

¶¶ 39-41, 45, 53-55, 59-61; see ECF Nos. 56-1, 9-1.3

The Plaintiff further asserts that the Remaining Defendants’ unlawful activities have caused

and will continue to cause irreparable injury to the Plaintiff because the Remaining Defendants

have (1) caused confusion, mistake, and deception among members of the trade and the general

consuming public as to the origins and quality of the allegedly counterfeit goods through the

Remaining Defendants’ operation of the E-Commerce stores and the counterfeit products sold

therein; (2) misrepresented to members of the consuming public that the counterfeit goods that

were being advertised and sold by them using the Plaintiff’s Mark are genuine, non-infringing

goods; and (3) competed with the Plaintiff for space within organic search engine results and social

media results, thereby depriving the Plaintiff of a valuable marketing and consumer education tool.

E.g., ECF No. 9 at ¶¶ 59, 65, 85, 97, 98, 107. In its motion, the Plaintiff seeks the entry of default

3 The Plaintiff has submitted evidence showing each of the Remaining Defendants has infringed

the Plaintiff’s Mark. See ECF Nos. 12-2, 12-3, 56-1, 56-3.

final judgment against the Remaining Defendants and further requests that the Court enjoin the

Remaining Defendants’ from further infringing activities, award Plaintiff damages against each

Remaining Defendant, and award any other relief the Court deems just and proper. ECF No. 56 at

15.

II. LEGAL STANDARD

“When a party against whom a judgment for affirmative relief is sought has failed to plead

or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the

party’s default.” Fed. R. Civ. P. 55(a); Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d

1309, 1316 (11th Cir. 2002). The effect of a clerk’s default is that all of the plaintiff’s well-pled

allegations are deemed admitted. See Amguard Ins. Co. v. Super Winn Nail Spa, Inc., No. 23-

61304, 2024 WL 996444, at *1 (S.D. Fla. Mar. 5, 2024) (citing Buchanan v. Bowman, 820 F.2d

359, 361 (11th Cir. 1987)); see also Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d

1200, 1206 (5th Cir. 1975) (defaulted defendant deemed to admit well-pled allegations, but “not

held to admit facts that are not well-pleaded or to admit conclusions of law”).

Only the well-pled allegations are admitted because “entry of default judgment is only

warranted when there is a sufficient basis in the pleadings for the judgment entered, with the

standard for ‘a sufficient basis’ for the judgment being akin to that necessary to survive a motion

to dismiss for failure to state a claim.” Singleton v. Dean, 611 F. App’x 671, 671 (11th Cir. 2015)

(“The Complaint must contain sufficient factual matter, accepted as true, to state a claim for relief

that is plausible on its face, which is met when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”);

Certain Underwriters at Lloyd’s London Subscribing to Policy BRT3A000415-02 v. A.M.A.

Consulting & Constr. Servs., No. 21-cv-20979, 2022 WL 542893, at *5 (S.D. Fla. Feb. 7, 2022),

report and recommendation adopted, 2022 WL 539183 (S.D. Fla. Feb. 22, 2022). Therefore,

before entering a default judgment, a court must ensure that the well-pleaded allegations in the

complaint state a substantive cause of action and provide a sufficient basis for the particular relief

sought. Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863 (11th Cir. 2007); see also, e.g.,

Luxottica Group S.p.A. v. Individual, P’ship or Unincorporated Ass’n, No. 17-CV-61471, 2017

WL 6949260, at *2 (S.D. Fla. Oct. 3, 2017) (“Because a defendant is not held to admit facts that

are not well pleaded or to admit conclusions of law, the Court must first determine whether there

is a sufficient basis in the pleading for judgment to be entered.”). If the admitted facts are sufficient

to establish liability, then the Court must ascertain the appropriate amount of damages. Nishimatsu

Constr. Co., 515 F.2d at 1206. Where all the essential evidence needed to determine damages is

found in the record, an evidentiary hearing on damages is not required. See, e.g., SEC v. Smyth,

420 F.3d 1225, 1232 n.13 (11th Cir. 2005); Bandyopadhyay v. Defendant 1, No. 22-CV-22907,

2023 WL 2395475, at *1 (S.D. Fla. Mar. 7, 2023).

If there are multiple defendants, the plaintiff must state in the motion for default final

judgment that there are no allegations of joint and several liability and set forth the basis why there

is no possibility of inconsistent liability. Zuru Inc. v. Individuals, No. 1:23-cv-22217-

WILLIAMS/REID, 2024 WL 1809310, at *2 (S.D. Fla. Mar. 29, 2024). Generally, if one

defendant who is alleged to be jointly and severally liable with other defendants defaults, judgment

should not be entered against that defendant until the matter is adjudicated against all the remaining

defendants. Id. (citing 10A Charles Alan Wright and Arthur R. Miller, Federal Practice and

Procedure § 2690 (3d ed. 1998), and Frow v. De La Vega, 82 U.S. 552, 554 (1872) (“[A] final

decree on the merits against the defaulting Defendant alone, pending the continuance of the cause,

would be incongruous and illegal.”)).

Here, the Plaintiff has stated in its motion that there are no allegations of joint liability.

ECF No. 56 at 1. The Remaining Defendants have not appeared and have defaulted; the other

defendants have been dismissed. Therefore, there is no possibility of inconsistent liability among

the defendants based on the allegations of the Amended Complaint, and an adjudication of default

judgment may be entered.

III. ANALYSIS

A. Claims

1. Trademark Counterfeiting and Infringement Pursuant to § 32 of the Lanham Act

(15 U.S.C. § 1114) (Count I)

Section 32 of the Lanham Act, 15 U.S.C. § 1114, provides liability for trademark

infringement if, without the consent of the registrant, a defendant uses “in commerce any

reproduction, counterfeit, copy, or colorable imitation of a registered mark” which is “likely to

cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1114(1). In order to prevail on

its trademark infringement claim under Section 32 of the Lanham Act, Plaintiff must demonstrate

that (1) it had prior rights to the mark at issue; and (2) Defendants adopted a mark or name that

was the same or confusingly similar to Plaintiff’s trademark such that consumers were likely to

confuse the two. Frehling Enterprises, Inc. v. Int’l Select Group, Inc., 192 F.3d 1330, 1335 (11th

Cir. 1999); see also Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 (11th Cir.

2001) (citing Lone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 106 F.3d 355, 360

(11th Cir. 1997)).

To establish its claim, the Plaintiff alleged that it is the owner of all rights in and to the

“Sexy Dance” trademark, see ECF No. 9 at ¶ 24, and that the Remaining Defendants, without the

Plaintiff’s permission, id. at ¶ 61, are using “counterfeit and confusingly similar imitations” to the

Plaintiff’s Mark, indeed, identical copies of the Plaintiff’s Mark, id. at ¶ 55, in “advertising, selling,

offering for sale, and distributing” their goods, id. at ¶¶ 82, 83. According to the Amended

Complaint, such activities “are likely to cause and actually are causing confusion, mistake, and

deception among members of the trade and the general consuming public” and damages to the

Plaintiff. Id. at ¶ 85, see also, e.g., id. at ¶ 59. Thus, the Plaintiff has sufficiently alleged facts

establishing each of the elements necessary to state a claim for trademark counterfeiting and

infringing under § 32 of the Lanham Act and is entitled to default judgment on this claim.

2. False Designation of Origin Pursuant to § 43(a) of the Lanham Act (15 U.S.C.

§ 1125(a)) (Count II)

To prevail on its claim for false designation of origin under Section 43(a) of the Lanham

Act, 15 U.S.C. § 1125(a), Plaintiff must establish that Defendants used in commerce, in connection

with any goods or services, “any word, term, name, symbol or device, or any combination thereof,

or any false designation of origin” that is “likely to cause confusion, or to cause mistake, or to

deceive as to the affiliation, connection, or association” of Defendants with Plaintiff, or “as to the

origin, sponsorship, or approval of” Defendants’ goods, services, or commercial activities by the

Plaintiff. See 15 U.S.C. § 1125(a)(1). The test for liability for false designation of origin under

15 U.S.C. § 1125(a) is the same as for a trademark counterfeiting and infringement claim—i.e.,

whether the public is likely to be deceived or confused by the similarity of the marks at issue. See,

e.g., Zuru Inc., 2024 WL 1809310, at *2 (citing Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S.

763, 780 (1992) (Stevens, J., concurring)).

Here, the Plaintiff alleged that the Defendants’ goods “bearing [or] using copies of the

Plaintiff Mark are virtually identical in appearance to Plaintiff’s genuine goods” and “have been

widely advertised and offered for sale throughout the United States through E-Commerce.” ECF

No. 9 at ¶¶ 91, 92. Indeed, the Defendants are using “identical copies” of the Plaintiff’s Mark. Id.

at ¶ 55. Further, the Defendants’ goods are “different in quality from Plaintiff’s goods and are of

much lower quality,” which is “likely to cause confusion in the trade and among the general public

as to at least the origin or sponsorship” of the goods. Id. at ¶¶ 93, 94; see also id. at ¶ 55. The

Plaintiff’s allegations establishing that the Remaining Defendants used the Plaintiff’s Mark in

commerce and caused confusion are sufficient to state a claim for false designation of origin under

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The Plaintiff is therefore entitled to default

judgment on Count II.

3. Common Law Unfair Competition and Trademark Infringement (Counts III and IV)

“The analysis of Florida common law claims of trademark infringement and unfair

competition is the same as federal claims.” GR Opco, LLC v. Eleven IP Holdings, No. 22-24119-

CIV, 2024 WL 4110524, at *6 (S.D. Fla. July 17, 2024), report and recommendation adopted, 2024

WL 4104288 (S.D. Fla. Sept. 5, 2024); see also, e.g., KAWS, Inc. v. Printify Inc., No. 23-CV-

24063, 2024 WL 3916493, at *6 (S.D. Fla. Aug. 23, 2024) (“Florida law unfair competition claims

are evaluated in same manner as trademark infringement claims.”); Casa Dimitri Corp. v. Invicta

Watch Co. of Am., Inc., 270 F. Supp. 3d 1340, 1362 (S.D. Fla. 2017) (concluding that “the legal

analysis for Lanham Act claims applies to” Florida claims of unfair competition); PetMed

XPRESS, Inc. v. MedPets.com, Inc., 336 F. Supp. 2d 1213, 1218 (S.D. Fla. 2004) (“The analysis

of liability for Florida common law trademark infringement is the same as under the Lanham

Act.”); Investacorp, Inc. v. Arabian Investment Banking Corp. (Investcorp) E.C., 931 F.2d 1519,

1521 (11th Cir. 1991) (recognizing that the analysis of Florida statutory and common law claims

of trademark infringement and unfair competition is the same as under the federal trademark

infringement claim).

As to Count III, the Plaintiff alleged that the Remaining Defendants are “promoting and

otherwise advertising, selling, offering for sale, and distributing goods using or bearing

counterfeits and infringements” of the Plaintiff’s Mark and using the Plaintiff’s Mark to “unfairly

compete with Plaintiff and others for (1) space in search engine and social media results across an

array of search terms and (2) visibility on the Internet,” all of which is “likely to cause and actually

[is] causing confusion, mistake and deception among members of the trade and the general

consuming public.” ECF No. 9 at ¶ ¶ 105-107. These allegations are sufficient to state a Florida

common law claim for unfair competition. As to Count IV, the Plaintiff alleged that it is the owner

of the “Sexy Dance” trademark and that the Defendants’ use of the Plaintiff’s Mark is “likely to

cause and actually [is] causing confusion, mistake and deception among members of the trade and

the general consuming public.” ECF No. 9 at ¶¶ 111, 113. Thus, the Plaintiff has sufficiently

alleged facts establishing the elements of its common law unfair competition and trademark

infringement claims and is entitled to default judgment on both claims.

Because the Plaintiff has alleged sufficient facts to establish the elements of each of its

claims, and because the factual allegations in the Plaintiff’s Amended Complaint have been

substantiated by sworn declarations and other evidence establishing the Remaining Defendants’

liability under each of the claims asserted in the Amended Complaint, see ECF Nos. 12-2, 12-3,

56-2, 56-3, entry of default judgment in favor of the Plaintiff and against the Remaining

Defendants pursuant to Federal Rule of Civil Procedure 55 is appropriate.

B. Injunctive Relief

Pursuant to the Lanham Act, a district court is authorized to issue an injunction “according

to the principles of equity and upon such terms as the court may deem reasonable,” to prevent

violations of trademark law. See 15 U.S.C. § 1116(a). Indeed, “[i]njunctive relief is the remedy

of choice for trademark and unfair competition cases, since there is no adequate remedy at law for

the injury caused by a defendant’s continuing infringement.” Burger King Corp. v. Agad, 911 F.

Supp 1499, 1509-10 (S.D. Fla. 1995) (citing Century 21 Real Estate Corp. v. Sandlin, 846 F.2d

1175, 1180 (9th Cir. 1988)). Moreover, even in a default judgment setting, injunctive relief is

available. See, e.g., PetMed XPRESS, Inc., 336 F. Supp. 2d at 1222-23.

Permanent injunctive relief is appropriate where a Plaintiff demonstrates that (1) it has

suffered irreparable injury; (2) there is no adequate remedy at law; (3) the balance of hardship

favors an equitable remedy; and (4) an issuance of an injunction is in the public’s interest. eBay,

Inc. v. MercExchange, LLC, 547 U.S. 388, 392-93 (2006). The Plaintiff has carried its burden on

each of the four factors. Accordingly, permanent injunctive relief is appropriate.

In trademark cases, “a sufficiently strong showing of likelihood of confusion . . . may by

itself constitute a showing of a substantial threat of irreparable harm.” McDonald’s Corp. v.

Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998); see also Levi Strauss & Co. v. Sunrise Int’l

Trading Inc., 51 F.3d 982, 986 (11th Cir. 1995) (“There is no doubt that the continued sale of

thousands of pairs of counterfeit jeans would damage LS & Co.’s business reputation and might

decrease its legitimate sales.”). The Plaintiff’s Amended Complaint alleges that the Remaining

Defendants’ unlawful actions have caused Plaintiff irreparable injury and will continue to do so if

the Remaining Defendants are not permanently enjoined. E.g., ECF No. 9 at ¶¶ 75, 76, 88, 101,

108, 114. Further the Amended Complaint alleges, and the submissions by Plaintiff show, that the

Defendants are promoting and otherwise advertising, selling, offering for sale, and distributing

goods bearing or using counterfeits or infringements of the Plaintiff’s Mark, and consumers

viewing Defendants’ counterfeit products would actually confuse them for genuine products

bearing the Plaintiff’s Mark. See, e.g., id. at ¶¶ 83-85. Indeed, the Amended Complaint establishes

that the Remaining Defendants’ “counterfeiting and infringing activities are likely to cause and

actually are causing confusion, mistake, and deception among members of the trade and the general

consuming public as to the origin and quality of Defendants’ Counterfeit Goods.” Id. at ¶ 85.

Plaintiff has no adequate remedy at law so long as the Remaining Defendants continue to

operate the Seller IDs because the Plaintiff cannot control the quality of what appears to be its

products in the marketplace. An award of monetary damages alone will not cure the injury to the

Plaintiff’s reputation and goodwill that will result if the Defendants’ infringing and counterfeiting

actions are allowed to continue. Moreover, Plaintiff faces hardship from loss of sales and its

inability to control its reputation in the marketplace. See, e.g., ECF No. 9 at ¶ 101. By contrast,

the Defendants face no hardship if they are prohibited from the infringement of the Plaintiff’s

Mark, which is an unlawful act.

Finally, the public interest supports the issuance of a permanent injunction against the

Remaining Defendants to prevent consumers from being misled by the Defendants’ counterfeit

products. See Nike, Inc. v. Leslie, 1985 WL 5251, at *1 (M.D. Fla. June 24, 1985) (“[A]n injunction

to enjoin infringing behavior serves the public interest in protecting consumers from such

behavior.”).

Unless the Remaining Defendants are enjoined from continuing to infringe on the

Plaintiff’s Mark, they will be free to continue infringing the Plaintiff’s trademark rights with

impunity and will continue to defraud the public with their illegal activities. Accordingly, the

undersigned recommends that Plaintiff’s request for a permanent injunction be granted.

C. Requested Statutory Damages

In a case involving the use of counterfeit marks in connection with a sale, offering for sale,

or distribution of goods, 15 U.S.C. § 1117(c) provides that a plaintiff may elect an award of

statutory damages at any time before final judgment is rendered in the sum of not less than

$1,000.00 nor more than $200,000.00 per counterfeit mark per type of good or service. 15 U.S.C.

§ 1117(c)(1). In addition, if the Court finds that Defendants’ counterfeiting actions were willful,

it may impose damages above the maximum limit up to $2,000,000.00 per mark per type of good

or service. 15 U.S.C § 1117(c)(2). Here, the Plaintiff has elected statutory damages pursuant to

§ 1117(c) as to Count I of the Amended Complaint.

Statutory damages under the Lanham Act are “particularly appropriate in the default

judgment context” because it is difficult to ascertain the defendants’ profits and because the

defendants have not participated in the litigation. See CreeLED, Inc. v. Individuals, Bus. Entities

& Unincorporated Ass’ns Identified on Schedule “A,” No. 22-CV-23683-JEM/Becerra, 2023 WL

6130593, at *4 (S.D. Fla. Sept. 11, 2023) (citing Tiffany (NJ) LLC v. Benefitfortiffany.com, No. 16-

60829-Civ-Lenard/Goodman, 2016 WL 8679081, at *7 (S.D. Fla. Nov. 3, 2016)); see also PetMed

Express, Inc., 336 F. Supp. 2d at 1220 (statutory damages are “especially appropriate in default

judgment cases due to infringer nondisclosure”). The Court has wide discretion to determine the

amount of such statutory damages. See PetMed Express, Inc., 336 F. Supp 2d at 1219 (citing

Cable/Home Commc’n Corp. v. Network Prod., Inc., 902 F. 2d 839, 853 (11th Cir. 1990)). An

award of statutory damages is appropriate despite a plaintiff’s inability to prove actual damages

caused by a defendant’s infringement. Under Armour, Inc. v. 51nfljersey.com, No. 13-62809-civ,

2014 WL 1652044, at *7 (S.D. Fla. Apr. 23, 2014) (citing Form Motor Co. v. Cross, 441 F. Supp

2d 837, 852 (E.D. Mich. 2006) (“[A] successful plaintiff in a trademark infringement case is

entitled to recover enhanced statutory damages even where its actual damages are nominal or non-

existent.”)); Playboy Enters. Inc. v. Universal Tel-A-Talk, Inc., No. CIV.A. 96-6961, 1998 WL

767440, at *8 (E.D. Pa. Nov. 3, 1998) (awarding statutory damages where plaintiff failed to prove

actual damages or profits). An award of statutory damages pursuant to 15 U.S.C. § 1117(c) is

“intended not just for compensation for losses, but also to deter wrongful conduct.” See CreeLED,

2023 WL 6130593, at *4 (citing PetMed Express, 336 F. Supp. 2d at 1220-21)).

Here, the allegations in the Plaintiff’s complaint, which are taken as true, clearly establish

that the Remaining Defendants intentionally copied the Plaintiff’s Mark for the purpose of deriving

benefit from the Plaintiff’s goodwill and reputation. ECF No. 9 at ¶ 69. As such, the Lanham Act

permits the Court to award up to $2,000,000.00 per infringing mark on each type of good as

statutory damages to ensure that the Remaining Defendants do not continue their intentional and

willful counterfeiting activities.

The evidence in this case demonstrates that each of the Remaining Defendants promoted,

sold, offered for sale, and/or distributed products bearing marks that were, in fact, counterfeits of

the Plaintiff’s Mark. See ECF No. 9. Based on the above considerations, the Plaintiff requests

that the Court award statutory damages of two hundred thousand ($200,000.00) per Defendant

because each Defendant “used one counterfeit mark on one type of good.” See ECF No. 56 at 14.

The requested amount of statutory damages should be sufficient to deter Defendants and others

from continuing to counterfeit or otherwise infringe Plaintiff’s Mark, compensate Plaintiff, and

punish Defendants, all stated goals of 15 U.S.C. § 1117(c). The Court finds that this requested

award of statutory damages—$200,000.00 per Remaining Defendant—falls within the permissible

statutory range under 15 U.S.C. § 1117(c) and is just.4

IV. CONCLUSION

For the foregoing reasons, it is RESPECTFULLY RECOMMENDED that Plaintiff’s

Motion for Default Final Judgment Against Certain Defendants, ECF No. 56, be GRANTED with

respect to the Remaining Defendants.

4 Although the Plaintiff has also asserted claims for false designation of origin under § 43(a) of the

Lanham Act, 15 U.S.C. § 1125(a) (Count II), and unfair competition (Count III) and trademark

infringement (Count IV) under Florida common law, the Plaintiff acknowledges that damages for

such claims are encompassed within its requested damages pursuant to § 1117(c), and the Plaintiff

seeks no additional damages based on those claims. See ECF No. 56 at 15.

Pursuant to Local Magistrate Rule 4(b), the Court finds good cause to EXPEDITE the

period to serve and file written objections to this Report and Recommendation. Accordingly,

within five (5) days from the date of this Report and Recommendation, that is, by Monday,

September 23, 2024, the parties shall serve and file written objections, if any, to this Report and

Recommendation with the Honorable Robert N. Scola, Jr., United States District Judge. Failing

to file timely objections will bar a de novo determination by the District Judge of any issue

addressed in the Report and Recommendation, will constitute a waiver of a party’s “right to

challenge on appeal the district court’s order based on unobjected-to factual and legal

conclusions,” and will only allow appellate review of the district court order “for plain error if

necessary in the interests of justice.” 11th Cir. R. 3-1; 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474

U.S. 140, 146-47 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); see also Harrigan

v. Metro Dade Police Dep t Station #4, 977 F.3d 1185, 1191-92 (11th Cir. 2020).

RESPECTFULLY RECOMMENDED in Chambers in Miami, Florida, this 18th day of

September 2024. □□

dace

Aakided —

UNITED STATES MAGISTRATE JUDGE

cc: Hon. Robert N. Scola, Jr.

Counsel of Record

14

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27 Walmart  EAGLE https://www.walmart.com/seller/101256185?pageName=order‐details

28 Walmart  ILUGU https://www.walmart.com/seller/101187715?itemId=195359350&pageName=item

29 Walmart  Muheng https://www.walmart.com/seller/101189196?itemId=129101738&pageName=item

32 Walmart  TEN10CENT https://www.walmart.com/seller/101133955?pageName=order‐details

33 Walmart  Wuzhisen E‐commerce Co., Ltd https://www.walmart.com/seller/101294971?pageName=order‐details

35 Walmart  Ostrich https://www.walmart.com/seller/101274096?pageName=order‐details

37 Walmart  JZ Co.ltd https://www.walmart.com/seller/101267734?itemId=879324258&pageName=item

42 Walmart  Farer W Stores https://www.walmart.com/seller/101294010?pageName=order‐details

43 Walmart  LUOCO https://www.walmart.com/seller/101227083?pageName=order‐details

45 Walmart  TNC https://www.walmart.com/seller/101267875?pageName=order‐details

46 Walmart  Prominence store https://www.walmart.com/seller/101295844?pageName=order‐details

48 Walmart  BESTS llc https://www.walmart.com/seller/101300571?pageName=order‐details

52 Walmart  YIWUSHISHUZHONG https://www.walmart.com/seller/101307142?itemId=628726117&pageName=item

53 Walmart  BINGANG https://www.walmart.com/seller/101290187?pageName=order‐details

54 Walmart  New for Your Home https://www.walmart.com/seller/101273477?pageName=order‐details

56 Walmart  Cuishifu Trading Co., Ltd https://www.walmart.com/seller/101291652?pageName=order‐details

57 Walmart  Retro Sports Shop https://www.walmart.com/seller/101296012?pageName=order‐details

58 Walmart  Rainlight https://www.walmart.com/seller/101294908?pageName=order‐details

59 Walmart  The Sunflower Road Co.,Ltd https://www.walmart.com/seller/101270287?itemId=850673255&pageName=item

60 Walmart  FOUR Co.Ltd https://www.walmart.com/seller/101267607?itemId=610076655&pageName=item

61 Walmart  CADI https://www.walmart.com/seller/101185356?itemId=610076655&pageName=item

62 Walmart  Fengniao Overseas Store https://www.walmart.com/seller/101270925?itemId=168399900&pageName=item

63 Walmart  Fengniao Store Ts https://www.walmart.com/seller/101252576?pageName=order‐details

64 Walmart  VPPDXHL https://www.walmart.com/seller/101303388?pageName=order‐details

65 Walmart  SPACEZ https://www.walmart.com/seller/101273163

68 Walmart  shanxijiexinmeishiwang https://www.walmart.com/seller/101303412?pageName=order‐details

69 Walmart  High quality mall https://www.walmart.com/seller/101292447?pageName=order‐details

71 Walmart  EWQER https://www.walmart.com/seller/101220973?pageName=order‐details

73 Walmart  The Best Choice Co.,Ltd https://www.walmart.com/seller/101269960?itemId=496873100&pageName=item

74 Walmart  Jeborah Grocery Co.Ltd https://www.walmart.com/seller/101242377?pageName=order‐details

76 Walmart  Cmoney https://www.walmart.com/seller/101284511?itemId=172478056&pageName=item

78 Walmart  ganyaa https://www.walmart.com/seller/101233025?pageName=order‐details

79 Walmart  Suzhoushilangerdianzi https://www.walmart.com/seller/101295798?pageName=order‐details

82 Walmart  Okblacety https://www.walmart.com/seller/101197859

83 Walmart  journey1018 https://www.walmart.com/seller/101349767?itemId=766860481&pageName=item