Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-24008-CIV-MARTINEZ-SANCHEZ

PURPLE INNOVATION, LLC,

Plaintiff,

v.

THE INDIVIDUALS, CORPORATIONS, LIMITED

LIABILITY COMPANIES, PARTNERSHIPS, AND

UNINCORPORATED ASSOCIATIONS IDENTIFIED

ON SCHEDULE “A”,

Defendants.

_______________________________________________/

REPORT AND RECOMMENDATION ON PLAINTIFF’S

MOTION FOR ENTRY OF FINAL DEFAULT JUDGMENT

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

Defendants, ECF No. 51, filed by the Plaintiff, PURPLE INNOVATION, LLC (“Plaintiff” or

“PURPLE INNOVATION”).1 A clerk’s default was entered against those Defendants2 listed in

the Schedule “A” attached thereto (the “Remaining Defendants”). ECF Nos. 43 (Clerk’s Entry of

Default), 51-8 at 19-25 (Schedule “A”). Despite having been served with process, see ECF No.

30, the Remaining Defendants failed to appear, answer, or otherwise respond to Plaintiff’s

1 The Honorable Jose E. Martinez, United States District Judge, referred the Plaintiff’s motion to

the undersigned for a report and recommendation. ECF No. 52.

2 A clerk’s default was also entered as to Defendants Nos. 23, 33 to 35, 37, 38, 40, 50, 51 to 54,

60, 98, 110, and 129, listed in Schedule “A” to the Plaintiff’s Motion for Entry of Final Default

Judgment. See ECF Nos. 42, 43, 51. However, since Plaintiff’s filing of this motion, the Plaintiff

has filed a notice of voluntary dismissal as to these listed Defendants. See ECF Nos. 53, 54, 56,

57, 58. Plaintiff thus no longer seeks a default judgment against the sixteen defendants listed

above nor against the other Defendants that Plaintiff has voluntarily dismissed from this action.

See ECF No. 51 at 1 n.1. A modified Schedule A listing the Remaining Defendants that are the

subject of both the Plaintiff’s motion for default judgment and this Report and Recommendation

is attached to this Report.

complaint. Plaintiff now seeks entry of final default judgment against the Remaining Defendants.

ECF No. 51. Having carefully considered Plaintiff’s Motion, the record in this case, the applicable

law, and being otherwise fully advised, the undersigned RESPECTFULLY RECOMMENDS

that Plaintiff’s Motion for Entry of Final Default Judgment Against Defendants, ECF No. 51, be

GRANTED.

I. BACKGROUND3

Plaintiff commenced this action against the Remaining Defendants, alleging claims for

trademark infringement and counterfeiting under § 32 of the Lanham Act, 15 U.S.C. § 1114 (Count

I); and design patent infringement under the Patent Act, 35 U.S.C. § 271 (Count II). ECF No. 1.

Plaintiff is the registered owner of federally registered trademarks for PURPLE

INNOVATION Products: U.S. Trademark Registration Nos. 5,416,146; 5,224,883; 5,224,901;

5,659,866; 5,661,556; 6,546,748; 6,816,315; 6,971,732; 6,971,733; 6,971,734; and 6,975,208 (the

“PURPLE INNOVATION Trademarks”). ECF No. 1 at ¶¶ 1, 14, 50; see also ECF No. 1-1

(Certificates of Registration for the PURPLE INNOVATION Trademarks). The PURPLE

INNOVATION Trademarks are used in connection with the design, marketing, and distribution of

PURPLE INNOVATIONS’ mattresses, pillows, and other products. See ECF No. 1 at ¶¶ 15-20;

ECF No. 12-1 at ¶¶ 6-7, 31 (Declaration of James Larson). Plaintiff owns all rights in the PURPLE

INNOVATION Trademarks pursuant to 15 U.S.C. § 1057(b). ECF No. 1 at ¶¶ 1, 14, 18; ECF No.

12-1 at ¶ 5.

Plaintiff is also the registered owner of several design patents: U.S. Patent Nos. US

D991,706 S; D990,930 S; D959,176 S; D951,670 S; D917,926 S; D909,790 S; and D909,092 S

3 The following facts are admitted as a result of the Remaining Defendants’ 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.

(collectively, the “PURPLE INNOVATION Patents”). ECF No. 1 at ¶¶ 2, 14, 21; ECF No. 1-2

(PURPLE INNOVATION patents). Plaintiff maintains “right, title, and interest in and to the

PURPLE INNOVATION Patents,” and its products often “embody at least a portion of the designs

depicted in the PURPLE INNOVATION Patents.” ECF No. 1 at ¶¶ 21-22; ECF No. 12-1 at ¶ 5.

Plaintiff has not licensed or authorized any of the Remaining Defendants to use the

PURPLE INNOVATION Trademarks or the PURPLE INNOVATION Patents, and none of the

Remaining Defendants are authorized retailers of genuine PURPLE INNOVATION products.

ECF No. 1 at ¶ 31; see also id. at ¶ 45.

The complaint establishes that the Remaining Defendants are advertising, marketing,

offering to sell, and/or selling unauthorized, counterfeit, and noncompliant products (the

“Counterfeit Products”) by using marks that are identical or substantially identical to the PURPLE

INNOVATION Trademarks and by embodying designs depicted in the PURPLE INNOVATION

Patents. ECF No. 1 at ¶¶ 3, 46, 48-49; see also id. at ¶¶ 32-33. The Counterfeit Products are made

to appear to be genuine PURPLE INNOVATION Products but are inferior and unauthorized

imitations of the PURPLE INNOVATION Products. ECF No. 1 at ¶ 5; see also id. at ¶¶ 20, 28,

32-33. Furthermore, the Remaining Defendants have “sold, offered to sell, marketed, distributed,

and advertised, and are still selling, offering to sell, marketing, distributing, and advertising

products in connection with the PURPLE INNOVATION Trademarks without Plaintiff’s

permission,” and “have been making, using, selling, offering for sale, and/or importing into the

United States for subsequent sale or use, without authority, Counterfeit Products that infringe

directly and/or indirectly the PURPLE INNOVATION Patents.” Id. at ¶¶ 49, 55; see also id. at

¶ 56. Plaintiff asserts that the Remaining Defendants’ unlawful infringing activities caused and

will continue to cause irreparable harm to Plaintiff’s reputation and goodwill “from the loss of its

exclusivity of its intellectual property rights, as well as through consumer confusion, dilution, and

tarnishment of its valuable trademark.” Id. at ¶¶ 8, 46, 53, 58; see also id. at ¶ 52.

Plaintiff seeks entry of final default judgment against the Remaining Defendants and

requests that the Court (1) permanently enjoin the Remaining Defendants from continuing to

infringe on Plaintiff’s intellectual property rights, that is, the PURPLE INNOVATION

Trademarks and the PURPLE INNOVATION Patents; and (2) award Plaintiff damages. See ECF

No. 51 at 2, 11-22.

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 the plaintiff’s well-pleaded

allegations are deemed admitted. See, e.g., Giovanno v. Fabec, 804 F.3d 1361, 1366 (11th Cir.

2015); 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-pleaded allegations, but “not held to admit facts

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

Only well-pleaded 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.”);

Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1244-45 (11th Cir. 2015). 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 the 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 the 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.

Here, Plaintiff stated in its motion that there are no allegations of joint and several liability

against the Remaining Defendants. See ECF No. 51 at 8. The Remaining Defendants have not

appeared and have defaulted. Therefore, there is no possibility of inconsistent liability between

the Remaining Defendants, and a final default judgment against the Remaining Defendants may

be entered.

III. ANALYSIS

A. Count I: Trademark Infringement and Counterfeiting Pursuant to § 32 of the

Lanham Act (15 U.S.C. § 1114)

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). To prevail on this

claim, 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 Enters., Inc. v. Int’l Select Grp., 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, Plaintiff alleged that it is the registered owner of the PURPLE

INNOVATION Trademarks and the official source of PURPLE INNOVATION Products, see

ECF No. 1 at ¶¶ 1, 50, that the Remaining Defendants have no license or authorization to use the

PURPLE INNOVATION Trademarks, see id. at ¶¶ 31, 49, that the Remaining Defendants are

using marks that are “identical or substantially identical to the PURPLE INNOVATION

Trademarks,” id. at ¶ 3, that the Remaining Defendants are “willfully infringing and intentionally

using counterfeits of the PURPLE INNOVATION Trademarks,” id. at ¶ 50, and that the

Remaining Defendants “have sold, offered to sell, marketed, distributed, and advertised, and are

still selling, offering to sell, marketing, distributing, and advertising products in connection with

the PURPLE INNOVATION Trademarks without Plaintiff’s permission,” id. at ¶ 49. According

to the complaint, the Remaining Defendants’ activities are “likely to cause and [are] causing

confusion, mistake, and deception as to the origin and quality of the counterfeit goods among the

general public” and damages to Plaintiff. Id. at ¶¶ 50, 52; see also id. at ¶¶ 28-29. Therefore,

Plaintiff properly established the necessary elements to state a claim for trademark infringement

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

B. Count II: Design Patent Infringement Pursuant to 35 U.S.C. § 271

Under the Patent Act, “whoever without authority makes, uses, offers to sell, or sells any

patented invention, within the United States or imports into the United States any patented

invention during the term of the patent therefor, infringes the patent.” 35 U.S.C. § 271(a). A

design patent infringement action requires Plaintiff to demonstrate that “‘during the term of a

patent for a design, without license of the owner[,]’ a defendant ‘(1) applies the patented design,

or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells

or exposes for sale any article of manufacture to which such design or colorable imitation has been

applied.” XYZ Corp. v. Individuals, P’ships, and Unincorporated Ass’ns Identified on Sched. “A,”

668 F. Supp. 3d 1268, 1273 (S.D. Fla. 2023) (quoting 35 U.S.C. § 289). “Determining whether a

design patent is infringed is a two-step process. First, when appropriate, the design patent’s claims

are construed. Second, the patented design is compared to the accused device.” Pride Fam.

Brands, Inc. v. Carl’s Patio, Inc., 992 F. Supp. 2d 1214, 1223-24 (S.D. Fla. 2014) (footnote

omitted). “The ‘ordinary observer’ test is the sole test for determining whether a design patent has

been infringed.” XYZ Corp., 668 F. Supp. 3d at 1274 (quoting Columbia Sportswear N. Am., Inc.

v. Seirus Innovative Accessories, Inc., 942 F.3d 1119, 1129 (Fed. Cir. 2019)). Under this test, “if,

in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs

are substantially the same, if the resemblance is such as to deceive such an observer, inducing him

to purchase one supposing it to be the other, the first one patented is infringed by the other.”

Gorham Mfg. Co. v. White, 81 U.S. 511, 528 (1871); see also, e.g., XYZ Corp., 668 F. Supp. 3d at

1274. “Minor differences between a patented design and an accused article’s design cannot, and

shall not, prevent a finding of infringement.” Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294,

1303 (Fed. Cir. 2010) (quoting Payless Shoesource, Inc. v. Reebok Int’l Ltd., 998 F.2d 985, 991

(Fed. Cir. 1993)).

Here, Plaintiff has established that it is the registered owner of the PURPLE

INNOVATION Patents. ECF No. 1-2. The PURPLE INNOVATION Patents “were duly and

legally issued by the United States Patent and Trademark Office” and are “valid, subsisting, and

in full force and effect.” ECF No. 1 at ¶ 2; see ECF No. 1-2. Additionally, the PURPLE

INNOVATION Patents contain illustrated images depicting the patented designs, ECF No. 1-2,

and the Court need not construe claims language here in light of the patents’ illustrations. See,

e.g., Crocs, Inc., 598 F.3d at 1302-03; Believe Pursue LLC v. Individuals, Corps., Ltd. Liab. Cos.,

P’ships, & Unincorporated Ass’ns Identified on Schedule “A”, No. 25-CV-20162, 2025 WL

2427675, at *8 (S.D. Fla. July 29, 2025). Moreover, the Plaintiff has adequately alleged that the

Remaining Defendants applied the Plaintiff’s patented designs to articles of manufacture for the

purposes of sale. Indeed, the Remaining Defendants “are and have been making, using, selling,

offering for sale, and/or importing into the United States for subsequent sale or use . . . Counterfeit

Products that infringe directly and/or indirectly with PURPLE INNOVATION Patents.” Id. at

¶ 55; see also id. at ¶ 3 (“Defendants are improperly advertising, marketing and/or selling

unauthorized and noncompliant products . . . that embody the design(s) depicted in the PURPLE

INNOVATION Patents.”); id. at ¶ 32 (“Defendants deceive unknowing consumers by using the

. . . PURPLE INNOVATION Patents without authorization . . . as embodied by the Counterfeit

Products themselves.”). Plaintiff also provided images of the PURPLE INNOVATION Patents

and Defendants’ Counterfeit Products as evidence of the Remaining Defendants’ infringement of

the PURPLE INNOVATION Patents under the ordinary observer test. See id. at ¶¶ 55-58;

compare ECF No. 1-2, with ECF Nos. 51-2 to 51-6 (screenshots of Counterfeit Products from each

of Remaining Defendants’ Seller IDs).

Given the circumstances present in this case, Plaintiff has properly established the

necessary elements to state a claim for design patent infringement under 35 U.S.C. § 271 and is

entitled to final default judgment on this claim.

Here, Plaintiff sufficiently alleged facts to establish the elements of both of its claims, and

the factual allegations in Plaintiff’s complaint have been additionally substantiated by sworn

declarations and other evidence establishing the Remaining Defendants’ liability on both claims,

see ECF Nos. 51-1 to 51-6. Under the circumstances presented, entry of default judgment in favor

of Plaintiff and against the Remaining Defendants pursuant to Federal Rule of Civil Procedure 55

is appropriate.

C. RELIEF

Plaintiff, in its motion, ECF No. 51 at 2, 11-23, requests equitable relief, statutory damages,

and lost profits. The undersigned first addresses Plaintiff’s request for injunctive and other

equitable relief, and then addresses the monetary damages for each claim individually.

A. Injunctive and Other Equitable 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)). Similarly, the Patent Act provides that a district court “may grant

injunctions in accordance with the principles of equity to prevent the violation of any right secured

by patent, on such terms as the court deems reasonable.” 35 U.S.C. § 283; see Atmos Nation, LLC

v. Pana Depot, Inc., No. 14-CIV-62620, 2015 WL 11198010, at *2 (S.D. Fla. Apr. 8, 2015)

(granting default judgment and a permanent injunction for patent infringement claim, among

others). Indeed, a plaintiff has little other recourse where defendants fail to respond or appear in

a case. See Atmos Nation, LLC, 2015 WL 11198010, at *2.

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).

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 decrease

its legitimate sales.”). Further, “[i]n order for an injury to be irreparable, it cannot be undone

through monetary remedies.” Alpha Signs & Designs v. Individuals, No. 24-cv-20096, 2024 WL

3543724, at *4 (S.D. Fla. Apr. 3, 2024) (quoting VAS Aero Servs., LLC v. Arroyo, 860 F. Supp. 2d

1349, 1362 (S.D. Fla. 2012)), report and recommendation adopted, 2024 WL 3543702 (S.D. Fla.

May 24, 2024).

Plaintiff’s complaint demonstrates that the Remaining Defendants are improperly

infringing on the PURPLE INNOVATION Trademarks and Patents by using them to advertise,

promote, and sell goods by using marks that are identical or substantially identical to the PURPLE

INNOVATION Trademarks and by embodying designs depicted in the PURPLE INNOVATION

Patents, and these infringing activities are deceiving consumers and causing consumers to confuse

and mistake the Remaining Defendants’ counterfeit products with Plaintiff’s genuine products that

use the PURPLE INNOVATION Trademarks or embody the designs depicted in the PURPLE

INNOVATION Patents. ECF No. 1 at ¶¶ 3, 45-46, 48-49, 50, 52, 58; see also id. at ¶¶ 28-29, 32-

33. The Remaining Defendants’ infringing actions have caused Plaintiff irreparable injury,

including to Plaintiff’s good will and reputation, and will continue to do so if the Remaining

Defendants are not permanently enjoined. Id. at ¶¶ 8, 53, 58.

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

the PURPLE INNOVATION Trademarks and PURPLE INNOVATION Patents in connection

with their Internet-based e-commerce stores under the Seller IDs because Plaintiff will have no

control over the quality of what appears to be its products in the marketplace and will be unable to

exclude the Remaining Defendants from using its intellectual property. See, e.g., XYZ Corp., 668

F. Supp. 3d at 1276. An award of monetary damages alone will not cure the injury to Plaintiff’s

reputation and goodwill that will result if Remaining Defendants’ counterfeiting and infringing

actions are allowed to continue. Plaintiff has a significant interest in enforcing its Trademark and

Patent rights and expends significant resources promoting its Trademarks and genuine products

and protecting and enforcing its rights. See id. at ¶¶ 17, 20. Enjoining Remaining Defendants is

critical to prevent hardship to Plaintiff from loss of sales and injury to Plaintiff’s reputation and

goodwill. By contrast, the Remaining Defendants face no hardship if they are prohibited from the

continued infringement of PURPLE INNOVATION Trademarks and PURPLE INNOVATION

Patents, which are unlawful acts.

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

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

products. Chanel, Inc. v. Sea Hero, 234 F. Supp. 3d 1255, 1262 (S.D. Fla. 2016); see Nike, Inc. v.

Leslie, No. 85-960 Civ-T-15, 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.”). The Remaining Defendants have created an Internet-based infringement scheme in

which they are profiting from the deliberate misappropriation of PURPLE INNOVATION

Trademarks and PURPLE INNOVATION Patents. Unless the Remaining Defendants are

enjoined, they will be free to continue infringing on Plaintiff’s PURPLE INNOVATION

Trademarks and PURPLE INNOVATION Patents.

Having established all four elements necessary for injunctive relief, Plaintiff is entitled to

a permanent injunction.

Plaintiff additionally requests that the Court order that all listings and associated images of

goods that infringe on the PURPLE INNOVATION Trademarks and PURPLE INNOVATION

Patents be permanently removed from the Remaining Defendants’ online marketplace stores. See

ECF No. 51 at 2, 14-15. The Court’s broad equity powers allow it to fashion such relief to stop

the Remaining Defendants’ infringing activities, see, e.g., Believe Pursue LLC, 2025 WL 2427675,

at *10, and such relief is appropriate and recommended in this case.

B. Damages for Trademark Infringement and Counterfeiting

Because the admitted facts are sufficient to establish liability, the Court must ascertain the

appropriate amount of damages. Nishimatsu Constr. Co., 515 F.2d at 1206. In a case involving

the use of counterfeit marks in connection with a sale, offering for sale, or distribution of products,

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 the Remaining 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, Plaintiff has elected statutory damages pursuant to 15 U.S.C. § 1117(c) as to

Count I of its 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. v. MedPets.Com, Inc., 336 F. Supp. 2d 1213, 1220 (S.D. Fla. 2004) (statutory

damages are “specially appropriate in default judgment cases due to infringer nondisclosure”).

The Court has wide discretion to determine the amount of statutory damages awarded. See PetMed

Express, 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

Ford 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 complaint, which are taken as true, establish that the Remaining

Defendants intentionally used counterfeits of the PURPLE INNOVATION Trademarks for the

purpose of deriving benefit from Plaintiff’s reputation and goodwill. See ECF No. 1 at ¶¶ 45, 50-

51; see also id. at ¶¶ 28-30, 32-33, 48-49, 53. 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 actions. See

15 U.S.C. § 1117(c)(2).

Each of the Remaining Defendants sold, promoted, distributed, advertised, and/or offered

for sale products bearing marks that were counterfeits of the PURPLE INNOVATION

Trademarks. See, e.g., ECF No. 1 at ¶¶ 3, 10, 45, 48-50. Based on the above considerations,

Plaintiff suggests that the Court award statutory damages of $200,000.00 against each of the

Remaining Defendants, each of whom sold at least one type of good bearing counterfeits of the

PURPLE INNOVATION Trademarks. See ECF No. 51 at 22. Such an award should be sufficient

to deter the Remaining Defendants and others from continuing to counterfeit or otherwise infringe

upon PURPLE INNOVATION Trademarks, compensate Plaintiff, and punish the Remaining

Defendants, all stated goals of 15 U.S.C. § 1117(c). See, e.g., Purple Innovation, LLC v.

Individuals, No. 24-25034-CIV, 2025 WL 1754677, at *6 (S.D. Fla. Apr. 25, 2025). The Court

finds that this 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. The undersigned accordingly

recommends an award of $200,000 against each of the Remaining Defendants on Count 1.

C. Damages for Design Patent Infringement

On its patent design infringement claim, Plaintiff “seeks $250 for the infringement of each

Design Patent” pursuant to 35 U.S.C. § 289 “[t]o the extent that the [Remaining] Defendants’

known total profits were less than $250 in connection with the sale of products that infringe on the

Design Patents.” ECF No. 51 at 16. With respect to 14 of the Remaining Defendants, Plaintiff

also seeks “lost profits” to the “extent that th[ose] [Remaining] Defendants’ total profits exceeded

$250.” Id.; see also ECF No. 51-7.

More specifically, Plaintiff contends that it seeks to recover such lost profits pursuant to

35 U.S.C. § 284, see ECF No. 51 at 16, which provides for compensatory damages based on a

patentee’s lost sales and profits and which also allows for the trebling of those damages. See 35

U.S.C. § 284 (“Upon finding for the claimant the court shall award the claimant damages adequate

to compensate for the infringement, but in no event less than a reasonable royalty for the use made

of the invention by the infringer” and “may increase the damages up to three times the amount

found or assessed.”); Believe Pursue LLC, 2025 WL 2427675, at *6-7; see also, e.g., Trell v.

Marlee Elecs. Corp., 912 F.2d 1443, 1446 (Fed. Cir. 1990) (“The two methods by which damages

are usually calculated under [35 U.S.C.] § 284 are assessment of actual damages (the profits the

patentee lost due to the infringement) or, if actual damages cannot be ascertained, determination

of a reasonable royalty.”). Plaintiff, however, provides no argument or evidence whatsoever about

any lost sales or lost profits that it suffered. Instead, Plaintiff’s motion for default judgment

actually seeks the profits made by the infringing Remaining Defendants. See ECF No. 51 at 17-

20. That, however, is not a remedy available under 35 U.S.C. § 284, but is instead a remedy

provided by 35 U.S.C. § 289.4 See Believe Pursue LLC, 2025 WL 2427675, at *11 (“Recovery of

an infringer’s total profits, rather than a patentee’s own lost sales, falls squarely within the scope

of § 289, not § 284.”); id. at *5-7. Indeed, § 289 provides that “[w]hoever during the term of a

4 It appears that Plaintiff has “conflate[d] the distinct remedies provided under 35 U.S.C. §§ 284

and 289.” Believe Pursue LLC, 2025 WL 2427675, at *11. The remedies that Plaintiff requests—

the profits made by the Remaining Defendants—are available under § 289.

patent for a design, without license of the owner, (1) applies the patented design, or any colorable

imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for

sale any article of manufacture to which such design or colorable imitation has been applied shall

be liable to the owner to the extent of his total profit, but not less than $250.” 35 U.S.C. § 289

(emphasis added). Significantly, Plaintiff calculates the loss profits that it seeks expressly using

the methodology for determining an award under § 289. See ECF No. 51 at 17. Because it is

impermissible “for Plaintiff to recover both infringer’s profits under § 289 and additional

compensatory damages under § 284 for the same act of infringement,” Believe Pursue LLC, 2025

WL 2427675, at *12, and because Plaintiff calculates the damages that it requests pursuant to

§ 289 based on the Remaining Defendants’ profits, Plaintiff’s damages on its design patent claim

are evaluated under § 289.

Determining an award under § 289 involves two steps: “First, identify the ‘article of

manufacture’ to which the infringed design has been applied. Second, calculate the infringer’s

total profit made on that article of manufacture.” Samsung Elecs. Co. v. Apple, Inc., 580 U.S. 53,

60 (2016). The plaintiff has the initial burden to show the article of manufacture and the

defendant’s total profit on that article. Blue Spring Partners, LLC v. Individuals, Corps., Ltd. Liab.

Cos., P’ships, and Unincorporated Ass’ns Identified on Sched. “A”, No. 1:24-CV-24197-PCH,

2025 WL 1042127, at *9 (S.D. Fla. Mar. 10, 2025). The burden then shifts to the defendant to

produce evidence of any deductions from the total profit identified by the plaintiff (or to show the

article of manufacture, if it believes it to be different). Id.

When calculating an infringer’s profits in similar contexts, courts have held that any

uncertainty is to be resolved against the infringer. See, e.g., Mishawaka Rubber & Woolen Mfg.

Co. v. S.S. Kresge Co., 316 US. 203, 206-07 (1942) (“The burden is the infringer’s to prove that

his infringement had no cash value in sales made by him. If he does not do so, the profits made

on sales of goods bearing the infringing mark properly belong to the owner of the mark.”). “[I]n

the context of default judgments, courts in this District evaluate lost profits under Gross Merchant

Value (‘GMV’), which is the sales price of infringing goods multiplied by the number of goods

sold.” Believe Pursue LLC, 2025 WL 2427675, at *6 (collecting cases). Where a defendant fails

to produce supporting documents “to characterize revenue, courts in this District have entered a

profits award for the entire revenue amount excluding any costs to be deducted from the

defendant’s gross profit.” Id. (collecting cases).

Here, Plaintiff purports to calculate its lost profits damages as follows:

If the Third Party Provider provided information about gross profits for a specific

infringing product (i.e., the “Gross Merchant Value”), Plaintiff relied on that

information. If the Third Party Provider did not provide such information, Plaintiff

relied on the reported entire revenue amount for the [Remaining] Defendant.

ECF No. 51 at 19 n.3. In support of its calculation, Plaintiff merely submitted a chart indicating

the total amount of lost profits it seeks from each seller. See ECF No. 51-7; ECF No. 51-1 at ¶ 2

n.3. Plaintiff, however, “provides no underlying information or documentation to corroborate

th[ose] figure[s]—no sales records, transaction histories, invoices, or account summaries.

Nowhere in the record does Plaintiff provide any evidence or breakdown of the number of goods

sold or how Plaintiff calculated” its lost profits. Believe Pursue LLC, 2025 WL 2427675, at *12.

Plaintiff has thus failed to satisfy its burden to produce evidence of the lost profits it seeks from

14 of the Remaining Defendants, and even in the default judgment context, “[w]ithout supporting

evidence, the Court cannot verify the accuracy of Plaintiff’s claimed damages.” Id. Plaintiff’s

bare assertion within its motion for default judgment is insufficient to satisfy its burden. Id.

Accordingly, because the Plaintiff has established the Remaining Defendants’ liability on

Plaintiff’s design patent infringement claim, but Plaintiff has not yet presented adequate evidence

to support its request for damages under 35 U.S.C. § 289, the undersigned respectfully

RECOMMENDS that the Court REQUIRE Plaintiff to present evidence of the lost profits that it

seeks for each infringing product for which it seeks damages under § 289 against each of the

Remaining Defendants.

D. CONCLUSION

For the foregoing reasons, the undersigned RESPECTFULLY RECOMMENDS that

Plaintiff’s Motion for Final Default Judgment Against Defendants, ECF No. 51, be GRANTED

with respect to the Remaining Defendants as set forth above, that final default judgment be entered

in favor of Plaintiff and against the Remaining Defendants, that a permanent injunction be issued

against the Remaining Defendants, that Plaintiff be awarded statutory damages of $200,000

against each of the Remaining Defendants pursuant to the Lanham Act, and that Plaintiff be

required to present additional evidence of the profits that it seeks from each Remaining Defendant

within fourteen (14) days of the Court’s Order requiring such evidence.

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, the

parties shall have until September 25, 2025, to serve and file written objections, if any, to this

Report and Recommendation with the Honorable Jose E. Martinez, United States District Judge.

Failure 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 (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 19th day of

September 2025.

al :

EDUARDO I. SANCHEZ

UNITED STATES MAGISTRATE JUDGE

ce: Hon. Jose E. Martinez

Counsel of Record

19

SCHEDULE A

DOE No. | Defendant Seller Defendant Online Marketplace

1 Airspace https://us.shein.com/store/home?store_code=6078 116

083

Always Be My Gul Store | https://www.aliexpress.com/store/1 103050324

Autobliss Store https://www.aliexpress.com/store/1103266471

16 Enjoying* Life Store littpls://www.aliexplress.com/store/1101460664

17 HUTTON LIVE Store □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 102963729

| 18 IBPS Shop Store

| 19 JUNMUMUKE]JI https://www.aliexpress.com/store/1 103185219

Manufacturer Store

20 KAWASIMAYA □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 103210325

Professional Sale Store

21 Maimeirui Homeware https://www.aliexpress.com/store/1] 103315068

Store

DOE No.

UY6Q

https://www.amazon.com/sp?seller=A 16LUVBOC86

X4L

https://www.temu.com/aiqin-m-

634418212847771 html

https://www.temu.com/-home-m-

634418211489725 html

https://www.temu.com/-m-634418211009567.html

Awesome Selection - https://www.temu.com/awesome-selection-

Youqingshu ougingshu-m-5986259853168.html

31 ban yarun https://www.temu.com/ban--m-

634418213974176.html?go00ds_id=60109960217801

S&sticky_type=1&_x_sessn_id=ulr3nt420q&refer_p

age name=goods&refer_page 1d=10032_ 172588068

1941 qze98won9r&refer page sn=10032

32 Beautiful Blue House https://www.temu.com/beautiful--m-

634418217297075 html

women women-1mn-61 17219438339. html

43 CieloHome https://www.temu.com/cielohome-m-

DOE No. | Defendant Seller Defendant Online Marketplace

49 Dongxiu https://www.temu.com/dongxiu-m-

634418216498082.html

55 Enjoy your wonderful life | https://www.temu.com/up-stone-m-

634418212163196.html

fenghui commerce https://www.temu.com/-commerce-m-

634418216968949 html

61 Ginger Dec https://www.temu.com/ginger-dec-m-

5654252915134.html

63 GTAO https://www.temu.com/gtao-m-

634418215669157. html

64 GTDAMAI https://www.temu.com)/gtdamai-m-

634418215673050.html

| GYANG https:/Awww.temu.com/-m-6344 18214634867. html

H Enjoy life https://www.temu.con/h-enjoy-life-m-

634418214923782.html

634418218140552. html

https://www.temu.com/hupo-kb-m-

634418216600415.html

634418213196323 html

”

634418216666192.html

78 jrukun https://www.temu.cony/jiukun-m-

ry 634418214753295.html

KPAN

4346568268839. html

84 Le Puppino Pet local https://www.temu.com/le-puppino-pet-local-m-

634418215275914. html

Bee nesta

634418213531294 html

634418212619316.html

634418217050520.html

>

634418215468308 html

634418213736070.html

634418212225006.html

634418213738488. html

Products 634418210890397. html

635517727290097 html

97 Office Craft Shop https://www.temu.cony office--m-

634418213127157. html

99 pengs https://www.temu.cony/pengg-m-

634418215185387. html

100 Pin An Dian https://www.temu.com/pin-an--m-

oo 634418215523382.html

102 QDU0Q https://www.temu.com/qduoq-in-

4663785375090. html

103 renquandianpu https://www.temu.com/renquandianpu-in-

634418214519251.html

104 ROU SHOP https://www.temu.com/rou-shop-m-

oe 634418211506458 html

634418212493328 html

634418217390724. html

634418215367213.html

634418212933638 html

634418211784895. html

Defendant Online Marketplace

https://www.temu.com/wtn-shop-m-

634418216630482. html

https://www.temu.com/x--m-634418216845952.html

https://www.temu.com/xflwto-m-

634418216140782 html

121 xguoguo https://www.temu.com/xguoguo-m-

634418213236918. html

122 xianqishop https://www.temu.com/xianqishop-m-

634418217646365.html

125 yangeuangmeigui https://www.temu.com/yangeuanginelgul-mn-

634418212171885.html?goods_1d=60109962025801

9&sticky_type=1&_x_sessn_id=ul3nt420q&refer_p

age name=goods&refer_ page 1d=10032_ 172588050

1512_pistxbyihc&refer_page_sn=10032

126 yezishangdian □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

6344182132661 13.html

132 ZHAO

634418216717439. html

134 ZHONG HUISHAN https://www.temu.com/-huishan-in-

634418217046521.html

https://www.wish.com/merchant/616d292590f8c7def

f09129e

DOE No. Defendant Seller Defendant Online Marketplace

139 mytlp https://www.wish.com/merchant/550a36408e8def0b2

a652677

140 nvjiaoezimei https://www.wish.com/merchant/5ae13469a71fbf120

bc2f877

141 SHOPSTORYFRANCE https://www.wish.com/merchant/5a955057a6bf7a195

938b11c

142 SKY-00 https://www.wish.com/merchant/641bf6e8ace9aac64

855e789

143 wuhaiyuelian https://www.wish.com/merchant/5e7b0e64d14fc41c3

0244b82

144 wuyishan513 https://www.wish.com/merchant/641473e363cf403c6

b16555f

145 xingtai https://www.wish.com/merchant/5d4269b270327a45

c1c40774

146 xionghongji8542 https://www.wish.com/merchant/6174f1c73618ae52b

05858a8

147 xuchengyan5620 https://www.wish.com/merchant/617508b09c5e62c6f

2a441c7