AK Futures LLC v. Smoke Tokes LLC

Opinion

1 2 3 4 5 6 7 11 12 Case No. 8:21-cv-01061-JVS-ADS

13 AK FUTURES LLC, (Related to 8:21-cv-1027-JVS- ADS, 8:21-cv-01028-JVS-ADS, 14 Plaintiff, and 8:21-cv-01154-JVS-ADS) 15 v. JUDGMENT AND PERMANENT INJUNCTION 16 SMOKE TOKES, LLC and SMOKE TOTES DOES 1-10, 17 Complaint Filed: June 16, 2021 Defendants. 18 The Honorable James V. Selna 19

20 21 22 23 24 25 26 27 28 1 On November 17, 2021, this Court granted Plaintiff AK Futures LLC’s 2 request for default judgment, permanent injunctive relief, an award of enhanced 3 statutory damages in the amount of $150,000, and reasonable attorneys’ fees and 4 costs against Defendant Smoke Tokes, LLC. Based on the Court’s order, and 5 AK Futures’ motion for default judgment and permanent injunction, and other 6 papers on file in this action, the Court finds that: 7 1. Smoke Tokes failed to appear in this action by timely pleading, 8 responding to, or otherwise defending against the complaint in this action after 9 being properly served. AK Futures made a request for entry of default against 10 Smoke Tokes on August 5, 2021. The Clerk entered default as to Smoke Tokes 11 under Rule 55(a) of the Federal Rules of Civil Procedure on August 6, 2021. 12 2. AK Futures moved for default judgment and permanent injunction on 13 October 15, 2021. On November 17, 2021, this Court granted AK Futures’ motion 14 for default judgment and permanent injunction and awarded enhanced statutory 15 damages in the amount of $150,000 and reasonable attorneys’ fees and costs against 16 Smoke Tokes for its willful and continued infringement of AK Futures’ intellectual 17 property. 18 3. Smoke Tokes is not a minor nor incompetent person, and the 19 Servicemembers Civil Relief Act does not apply. 20 4. AK Futures complied with Rule 54(c) and sought a permanent 21 injunction, damages, and recovery of attorneys’ fees and costs, as requested in the 22 Complaint. 23 5. Default judgment is appropriate under the substantive requirements as 24 identified in the Ninth Circuit (together, the Eitel factors): (1) AK Futures expended 25 effort and incurred costs, without response from Smoke Tokes; (2) AK Futures 26 sufficiently states its claims for relief; (3) AK Futures shows it is likely to succeed 27 on the merits of its claims; (4) enhanced statutory damages in the amount of 28 $150,000 for Smoke Tokes’ willful infringement under the Copyright Act is 1 reasonable; (5) no disputes of facts preclude default; (6) Smoke Tokes’ default is 2 not attributed to excusable neglect; and (7) a policy favoring a decision on the 3 merits does not alone counterbalance the other six factors in this case. Eitel v. 4 McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 6 A. Judgment is entered in favor of AK Futures and against Smoke Tokes 7 on all claims for relief averred in the complaint. 8 B. A money judgment shall be, and hereby is, entered in favor of 9 AK Futures, and against Smoke Tokes in the amount of $150,000 for 10 Smoke Tokes’ willful infringement of AK Futures’ copyrighted CAKE 11 design, pursuant to 17 U.S.C. § 504. 12 C. Default judgment is entered under Federal Rules of Civil Procedure, 13 Rule 55(b) against Smoke Tokes. AK Futures shall further be awarded 14 its reasonable attorneys’ fees in the amount of $92,656.45 and costs in 15 the amount of $1,495.95, for a total judgment of $244,152.40. 16 D. This judgment will bear interest at the judgment rate from the date of 17 this judgment until paid pursuant to 28 U.S.C. § 1961. 18 E. Smoke Tokes and its partners, officers, directors, employees, agents, 19 owners, and representatives and all persons, firms, and corporations in 20 active concert or participation with any of them as described in Federal 21 Rules of Civil Procedure Rule 65(d)(2), including without limitation 22 individuals Raheel Lakhany, Shafaq Sattar, and Amin Habibullah 23 (collectively, “Defendant’s Related Persons”), are hereby 24 PERMANENTLY RESTRAINED AND ENJOINED FROM: 25 i. using, on or in connection with the manufacture, distribution, 26 sale, offering for sale, advertisement and/or promotion of any 27 products or services, any copy or colorable imitation of AK 28 Future’s CAKE trademarks or anything confusingly similar 1 thereto, including but not limited to CAKE, the stylized CAKE 2 mark depicted in U.S. Trademark Application Serial Nos. 3 90594523 and 90686598, and the cake logo depicted in U.S. 4 Trademark Application Serial Nos. 90594382 and 90624745; 5 ii. reproducing, distributing copies of, and/or displaying to the 6 public the cake design that is the subject of U.S. Copyright Reg. 7 No. VA 2-247-632 or any colorable imitation thereof; 8 iii. creating, using, distributing copies of, and/or displaying to the 9 public any derivative work of the cake design that is the subject 10 of U.S. Copyright Reg. No. VA 2-247-632; 11 iv. representing directly or indirectly in any form or manner 12 whatsoever, that Smoke Tokes’ business, products or services 13 are in any manner associated with, sponsored by, or approved by 14 AK Futures or otherwise taking any action likely to cause 15 confusion, mistake or deception on the part of purchasers as to 16 the source, origin or sponsorship of Smoke Tokes’ business, 17 products or services; and 18 v. assisting, aiding, or abetting any person or business entity in 19 engaging in or performing any of the activities referred to in 20 subparagraphs (i) through (iv) above. 21 F. Smoke Tokes and Defendant’s Related Persons, as identified in 22 Paragraph E above, shall destroy all products, labels, signs, prints, 23 packages, wrappers, receptacles, boxes, files, images, advertisements, 24 and promotions or materials in any other form in their possession that 25 depicts, uses, or copies AK Futures’ intellectual properties or similar 26 names or marks as described above. 27 G. Smoke Tokes and Defendant’s Related Persons, are further directed to 28 file with this Court and serve upon AK Futures within 30 days after 1 entry of the injunction a report in writing under oath setting forth in 2 detail the manner and form in which Smoke Tokes has complied with 3 the injunction and ceased all offering or promoting of unauthorized 4 and inauthentic CAKE-branded goods. > [ya ee = / eh 7 g Dated: December 08, 2021 Vv / United States District Court Judge 9 The Honorable James V. Selna 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28