1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 AMAZON.COM INC; AMAZON.COM Case No. 2:23-cv-00898-TMC 8 SERVICES LLC; OOFOS INC, ORDER GRANTING MOTION FOR 9 DEFAULT JUDGMENT Plaintiff, 10 v. 11 GUANGMING TANG; KANG SUN; 12 WENJIE FAN; XIAOFEI LIU; ZHI LI; 13 YACHUN HE; HAIQING HU, 14 Defendant. 15
16 Before the Court is Plaintiffs Amazon.com, Inc, Amazon.com Services LLC 17 (collectively, “Amazon”), and Oofos, Inc.’s (“Oofos”) motion for default judgment. Dkt. 31. 18 None of the Defendants have appeared in this action or responded to Plaintiffs’ motion. For the 19 reasons stated below, the Court GRANTS the motion. 20 I. BACKGROUND 21 Plaintiff Oofos sells athletic footwear through Amazon’s online store, Amazon.com. See 22 Dkt 8 ¶¶ 2–3. Plaintiffs’ operative complaint1 alleges that Defendants Guangming Tang, Kang 23
24 1 Plaintiffs first amended complaint, Dkt. 8, is their operative complaint. 1 Sun, Wenjie Fan, Xiaofei Liu, Zhi Li, Yachun He, and Haiqing Hu2 operated accounts on 2 Amazon.com through which they sold counterfeit Oofos footwear. See Dkt. 8 ¶ 35, 45. Plaintiffs 3 allege, on information and belief, that Defendants “operated in concert with one another in their 4 advertising, marketing, offering, distributing, and selling of’ the counterfeit products. Id. ¶ 45. 5 After discovering the operation and “verif[ying] Defendants’ sale of counterfeit Oofos 6 products,” Amazon blocked Defendants’ selling accounts. Id. ¶ 48. Plaintiffs filed this case on 7 June 14, 2023. Dkt. 1. The first amended complaint raises claims for trademark counterfeiting 8 and trademark infringement under 15 U.S.C. § 1114; False Designation of Origin and False 9 Advertising under 15 U.S.C. § 1125(a); a Violation of Washington Consumer Protection Act, 10 RCW 19.86.010, et seq.; and breach of contract. Dkt. 8 ¶¶ 50–85. 11 Plaintiffs sought and were granted leave to serve Defendants through their email 12 addresses, Dkt. 20, and did so on February 28, 2024, Dkt. 21. On April 18, 2024, Plaintiffs
13 moved for default against Defendants after they failed to timely appear, Dkt. 22, which the Clerk 14 of Court granted on April 23, 2024, Dkt. 24. Plaintiffs then filed this default judgment motion on 15 June 14, 2024. Dkt. 31. 16 II. DISCUSSION 17 A. Jurisdiction The Court first examines its jurisdiction when evaluating a motion for default judgment. 18 See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). First, the Court has federal question 19 jurisdiction based on Plaintiffs’ claims for trademark counterfeiting and infringement and false 20 designation of origin and false advertising under 15 U.S.C § 1121 and 28 U.S.C. § 1338, 21 respectively. The Court exercises supplemental jurisdiction over Plaintiffs’ related claims for 22 23 2 The amended complaint also names Hui Yang and “Does 1-10” as defendants, but on April 19, 24 2024, Plaintiffs voluntarily dismissed them from the case without prejudice. Dkt. 23. 1 violations of the Washington Consumer Protection Act and breach of contract pursuant to 28 2 U.S.C. §§ 1332 and 1367. Second, the Court has personal jurisdiction over Defendants because 3 they consented to the forum selection clause in their “Business Solutions Agreements” (“BSA”)
4 with Amazon selecting state or federal court in King County, Washington. See Dkt. 8 ¶ 21; Chan 5 v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1406–07 (9th Cir. 1994) (“[A] forum selection clause 6 alone could confer personal jurisdiction . . . [and] would be an additional basis for establishing 7 personal jurisdiction.”) Defendants also directed their sales and other business conduct toward 8 Washington State in their dealings with Amazon, therefore establishing minimum contacts, see 9 Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945), and a reasonable anticipation of “being haled 10 into court” here. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). The Court has 11 jurisdiction over the subject matter and the parties. 12 B. Default Judgment Standard
13 Motions for default judgment are governed by Rule 55 of the Federal Rules of Civil 14 Procedure. The Rule authorizes the Court to enter default judgment against a party that fails to 15 appear or otherwise defend in an action. Fed. R. Civ. P. 55. In deciding motions for default 16 judgment, courts take “‘the well-pleaded factual allegations’ in the complaint ‘as true,’ ‘except 17 those relating to the amount of damages.’” Rozario v. Richards, 687 F. App’x 568, 569 (9th Cir. 18 2017) (first quoting DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007); then 19 quoting Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (internal citations 20 omitted)); Fed. R. Civ. P. 8(b)(6). The court also does not accept the truth of statements in the 21 complaint that amount to legal conclusions. DIRECTV, Inc., 503 F.3d at 854. “[N]ecessary facts 22 not contained in the pleadings, and claims which are legally insufficient, are not established by
23 default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). 24 1 The “starting point is the general rule that default judgments are ordinarily disfavored. 2 Cases should be decided upon their merits whenever reasonably possible.” Eitel v. McCool, 782 3 F.2d 1470, 1472 (9th Cir. 1986). Courts weigh the following factors in deciding motions for
4 default judgment: 5 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at 6 stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy 7 underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
8 Id. at 1471–72; see NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 616–17 (9th Cir. 2016) 9 (suggesting that district courts “weigh” the Eitel factors). District courts’ decisions on motions 10 for default judgment are discretionary. See NewGen, LLC, 840 F.3d at 616 (“We review . . . the 11 grant of a default judgment for abuse of discretion.”). Failure to establish the second and third 12 factors is dispositive and requires denial of the motion. See Cripps, 980 F.2d at 1268 (vacating 13 default judgment where “the default judgment [was] legally insupportable”); United States ex 14 rel. Lesnik v. Eisenmann SE, No. 16-CV-01120-LHK, 2021 WL 4243399, at *11 (N.D. Cal. 15 Sept. 17, 2021) (noting that “failure to satisfy the second and third Eitel factors is sufficient to 16 deny a motion for default judgment”). 17 C. Plaintiffs are entitled to Default Judgment. 18 For the following reasons, the Court agrees with Plaintiffs that the Eitel factors favor 19 default judgment. 20 1. Possibility of prejudice to Plaintiffs 21 Under the first Eitel factor, the Court considers whether Plaintiffs will suffer prejudice if 22 default judgment is not entered. See, e.g., PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 23 1177 (C.D. Cal. 2002). Plaintiffs filed suit in June 2023 (Dkt. 1) and no Defendant has responded 24 or otherwise defended in this action. Plaintiffs would be prejudiced without entry of default 1 judgment because they would be left without legal remedy given Defendants’ lack of response. 2 See, e.g., Alliant Credit Union v. Williams, No. CV18-8483-GW(PLAx), 2020 WL 10963955, at 3 *4 (C.D. Cal. Feb. 13, 2020). The first Eitel factor weighs in favor of default judgment.
4 2. Substantive merits and sufficiency of the complaint 5 The second and third Eitel factors, concerning the merits of the plaintiff’s claim and the 6 sufficiency of their complaint, are “often analyzed together.” See, e.g., Curtis v. Illumination 7 Arts, Inc., 33 F. Supp. 3d 1200, 1211 (W.D. Wash. 2014) (citing PepsiCo, 238 F. Supp. 2d at 8 1175). These two factors weigh in favor of default judgment when the plaintiff’s complaint 9 contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on 10 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Danning v. Lavine, 572 F.2d 1386, 11 1388 (9th Cir. 1978). Courts cannot enter default judgment if the complaint fails to state a claim. 12 See Moore v. United Kingdom, 384 F.3d 1079, 1090 (9th Cir. 2004). Here, Plaintiffs assert they
13 have established Defendants’ liability as to all claims. The Court examines each claim in turn. 14 a. Trademark infringement 15 First, Oofos seeks entry of default judgment on its claim that Defendants infringed its 16 trademarks in violation of the Lanham Act, 15 U.S.C. § 1114. 17 To state a claim for trademark infringement under the Lanham Act, Oofos must plausibly 18 allege that Defendants used: “(1) a reproduction, counterfeit, copy or colorable imitation of 19 plaintiff’s registered trademark, (2) without its consent, (3) in commerce, (4) in connection with 20 the sale, offering for sale, distribution or advertising of any goods, (5) where such use is likely to 21 cause confusion, or to cause a mistake or to deceive.” Amazon v. Kurth, No. C18-0353-RAJ, 22 2019 WL 3426064, at *2 (W.D. Wash. July 30, 2019) (citing 15 U.S.C. § 1114(1)(2)).
23 “The ‘likelihood of confusion’ inquiry generally considers whether a reasonably prudent 24 consumer in the marketplace is likely to be confused as to the origin or source of the goods or 1 services bearing one of the marks or names at issue in the case.” Rearden LLC v. Rearden Com., 2 Inc., 683 F.3d 1190, 1209 (9th Cir. 2012). When a defendant uses a counterfeit mark, courts 3 presume a likelihood of consumer confusion. See Coach, Inc. v. Pegasus Theater Shops, No.
4 C12-1631-MJP, 2013 WL 5406220, at *3 (W.D. Wash. Sept. 25, 2013) (compiling cases). A 5 “counterfeit” is a “spurious mark which is identical with, or substantially indistinguishable from, 6 a registered mark.” Id. 7 Here, Oofos alleges that owns the registered trademarks nos. 4,140,410 and 4,407,860. 8 Dkt. 8 ¶ 4. It asserts it conducted “test purchases” of products sold by Defendants and 9 determined that they each bore a counterfeit Oofos trademark. Id. ¶ 43. Accepting these 10 allegations as true, Rozario, 687 F. App’x at 569, the Court concludes it is likely that a 11 reasonable consumer would have been deceived by Defendants into confusing their counterfeit 12 merchandise with genuine Oofos products. See Coach, 2013 WL 5406220, at *3. The second and
13 third Eitel factors therefore weigh in favor of entry of default judgment on Oofos’s claim against 14 Defendants for trademark infringement in violation of 15 U.S.C. § 1141(1)(1). 15 b. False designation of origin 16 Second, Oofos and Amazon seek entry of default judgment on their claims for 17 Defendants’ false designation of the origin of products or services under 15 U.S.C. § 1125(a). A 18 claim for false designation of origin must plausibly allege that a defendant: “(1) used in 19 commerce (2) any word, false designation of origin, false or misleading description, or 20 representation of fact, which (3) is likely to cause confusion or mistake, or to deceive, as to 21 sponsorship, affiliation, or the origin of the goods or services in question.” Luxul Tech. Inc. v. 22 Nectarlux, LLC, 78 F. Supp. 3d 1156, 1170 (N.D. Cal. 2015) (citing Freecycle Network, Inc. v.
23 Oey, 505 F.3d 898, 902–04 (9th Cir. 2007)). Generally, “[a]lthough there are some differences 24 between a trademark infringement claim under § 1114 and a false designation of origin claim 1 under § 1125(a), ‘the analysis under the two provisions is oftentimes identical.’” Entrepreneur 2 Media, Inc. v. Doe, No. 8:19-cv-01706-JLS-JDE, 2020 WL 6811475, at *4 (C.D. Cal. Oct. 21, 3 2020).
4 “[A] plaintiff suing under § 1125(a) ordinarily must show economic or reputational injury 5 flowing directly from the deception wrought by the defendant's advertising; and that . . . occurs 6 when deception of consumers causes them to withhold trade from the plaintiff.” Lexmark Int'l., 7 Inc. v. Static Control Components, Inc., 572 U.S. 118, 133 (2014). A plaintiff need not be the 8 owner of the infringed trademark to prevail on the claim. Id. 9 Both Oofos and Amazon have sufficiently alleged and proven their false designation 10 claims. As discussed above, supra Section 2.C.2.a., Defendants advertised and sold counterfeit 11 Oofos-branded products through Amazon.com selling accounts. Plaintiffs allege this conduct 12 misled consumers into purchasing counterfeit Oofos merchandise believing that they were
13 genuine products. Dkt. 8 ¶¶ 5–6, 60–61. Accepting Oofos’s allegations as true, Rozario, 687 F. 14 App’x at 569, the Court concludes that Oofos plausibly states a claim for false designation given 15 that counterfeit versions of its products were falsely presented as genuine to consumers whose 16 misdirected purchases affected sales of genuine merchandise. The Court also finds that Amazon 17 states a plausible false designation claim. While Amazon is not an owner of the Oofos 18 trademarks, it was deceived by Defendants who presented their counterfeit Oofos merchandise as 19 authentic inventory for their Amazon.com selling accounts—causing Amazon to allow 20 counterfeit products to be sold through its website, leading to consumer harm and plausible 21 associated reputational and financial damage to Amazon. The Court concludes that Oofos and 22 Amazon have stated claims for false designation and the second and third Eitel factors weigh in
23 favor of entering default judgment on these claims. 24 c. Washington Consumer Protection Act 1 Third, Plaintiffs seek entry of default judgment on their claims for Defendants’ violations 2 of the Washington Consumer Protection Act. A Washington Consumer Protection Act claim is 3 “substantially congruous” to federal claims under the Lanham Act, BBC Grp. NV LLC v. Island
4 Life Rest. Grp. LLC, No. C18-1101-RSM, 2020 WL 758070, at *2 (W.D. Wash. Feb. 14, 2020), 5 and requires a plaintiff to show “(1) an unfair or deceptive act or practice; (2) occurring in the 6 conduct of trade or commerce; (3) affecting the public interest; (4) injuring its business or 7 property; and (5) a causal link between the unfair or deceptive act and the injury suffered.” Id. 8 (citing Lahoti v. Vericheck, Inc., No. C06-1132-JLR, 2007 WL 2570247, at *9 (W.D. Wash. 9 Aug. 30, 2007), aff’d, 586 F.3d 1190 (9th Cir. 2009)). Given the above discussion, supra 10 Sections 2.C.2.a.–b., the Court finds that both Oofos and Amazon have met the similar 11 requirements of the Lanham Act and Washington Consumer Protection Act violations alleged— 12 where deceptive commercial activity led to business injury. See BBC Grp., 2020 WL 758070, at
13 *2; Amazon v. Kurth, 2019 WL 3426064, at *2; Luxul Tech., 78 F. Supp. 3d at 1170. The Court 14 finds that the second and third Eitel factors weigh in favor of entering default judgment on 15 Plaintiffs’ Washington Consumer Protection Act claims. 16 d. Breach of contract 17 Finally, Amazon Services LLC moves for default judgment on its breach of contract 18 claim against all Defendants. To prove a claim for breach of contract, the plaintiff 19 “[g]enerally . . . must prove a valid contract between the parties,” Lehrer v. State, Dep’t of Soc. 20 & Health Servs., 101 Wn. App. 509, 516 5 P.3d 722 (2000), and show four elements: duty, 21 breach, causation, and damages. Hard 2 Find Accessories, Inc. v. Amazon.com, Inc., 58 F. Supp. 22 3d 1166, 1171 (W.D. Wash. 2014), aff’d sub nom. Hard2Find Accessories, Inc. v. Amazon.com,
23 Inc., 691 F. App’x 406 (9th Cir. 2017); Baldwin v. Silver, 165 Wn. App. 463, 473, 269 P.3d 284 24 1 (2011). “For any breach to arise, there must first be some duty to perform.” Hard 2 Find 2 Accessories, Inc., 58 F. Supp. 3d at 1171. 3 Amazon Services LLC alleges that Defendants agreed to the BSAs with Amazon, which
4 “specifically identifies the sale of counterfeit goods as ‘deceptive, fraudulent, or illegal activity’ 5 in violation of Amazon’s policies, reserving the right to withhold payments and terminate the 6 selling account of any bad actor who engages in such conduct.” Dkt. 8 ¶¶ 36–37. The BSA 7 requires the seller to defend, indemnify, and hold Amazon harmless against any claims or losses 8 arising from the seller’s “actual or alleged infringement of any Intellectual Property Rights.” Id. 9 ¶ 37. The agreement also requires that “the information and documentation [sellers] provide to 10 Amazon in connection with their selling accounts—such as identification, contact, and banking 11 information—will, at all times, be valid, truthful, accurate, and complete.” Id. ¶ 40. 12 The Defendants also agreed, by way of the BSA, to Amazon’s Anti-Counterfeiting
13 Policy, which “expressly prohibits the sale of counterfeit goods in the Amazon Store.” Id. ¶ 38. 14 The policy provides, as an example of a “prohibited product,” “[p]roducts that infringe another 15 party’s intellectual property rights.” Id. ¶ 39. 16 Amazon Services LLC asserts that Defendants breached the BSA and Anti- 17 Counterfeiting Policy by selling counterfeit Oofos products, which it alleges infringed Oofos’s 18 intellectual property rights, id. ¶ 82, and “by providing Amazon with false, fraudulent, or 19 otherwise inaccurate identification, contact, and/or banking information in connection with their 20 Selling Accounts,” id. ¶ 84. It also alleges that Defendants’ failure to reimburse Amazon for “full 21 refunds” that Amazon issued to customers who purchased Defendants’ counterfeited products 22 violated the contract. Id. ¶ 49. These allegations sufficiently establish that Defendants had a duty
23 to abide by the above-mentioned policies, and that they breached their obligations under the BSA 24 and incorporated policies; Amazon Services LLC has sufficiently established the first two 1 elements of their claim. Moreover, the allegations that Defendants did not reimburse Amazon for 2 money it had to pay out as a result of Defendants’ sales of counterfeited items show that 3 Defendants’ conduct caused harm to Amazon. The Court finds that the second and third Eitel
4 factors weigh in favor of entering default judgment on Amazon Services LLC’s breach of 5 contract claim. 6 3. The sum of money at stake 7 Under the fourth Eitel factor, “the court must consider the amount of money at stake in 8 relation to the seriousness of defendant’s conduct.” PepsiCo, Inc., 238 F. Supp. 2d at 1176–77; 9 see also Curtis v. Illumination Arts, Inc., 33 F. Supp. 3d 1200, 1212 (W.D. Wash. 2014) 10 (“[C]ourts take into account the amount of money requested in relation to the seriousness of the 11 defendant’s conduct, whether large sums of money are involved, and whether the recovery 12 sought is proportional to the harm caused by defendant’s conduct.” (internal quotation marks
13 omitted)). The Court assesses whether the amount of money sought is proportional to the harm 14 caused by Defendants’ conduct. “Default judgment is disfavored where the sum of money at 15 stake is too large or unreasonable in relation to defendant’s conduct.” See Vogel v. Rite Aid 16 Corp., 992 F. Supp. 2d 998, 1012 (C.D. Cal. 2014). 17 Plaintiffs seek a total of $3,127,316 in statutory damages against Defendants, Dkt. 31-1 at 18 2, based on statutory damages of not less than $1,000 and no more than $2,000,000 per 19 trademark affected. See 15 U.S.C. §§ 1117(c)(1)–(2). While the sum is substantial, Defendants’ 20 conduct also resulted in a substantial estimated minimum of $1,041,476.60 in counterfeit sales, 21 Dkt. 32 at 23 ¶ 3, and was characterized by willful infringement and misleading commercial 22 activity. The Court concludes that Plaintiffs’ requested statutory damages are not unreasonable
23 relative to the scale and seriousness of the conduct alleged, taking place over two years and 24 spread across several defendants, and thus do not weigh against entry of default judgment. 1 For its breach of contract claim, Amazon Services LLC also seeks the following in actual 2 damages for sales made by selling accounts controlled by certain Defendants that they did not 3 reimburse Amazon Services for, as required by their contractual agreement: awards of $210,937
4 against Defendant GuangMing Tang; $175,647 against Defendant Kang Sun; $41,994 against 5 Defendant Wenjie Fan; $116,605 against Defendant Xiaofei Liu; $46,517 against Defendant Zhi 6 Li; $8,115 against Defendant Yachun He; and $37,013 against Defendant Haiqing Hu. Dkt. 32 7 ¶ 4. The requested actual damages are directly proportional to the individual Defendants’ 8 conduct and resulted from their breach. 9 Additionally, “the substantial sums that are at stake and the seriousness of the alleged 10 misconduct” also make this factor weigh in favor of default judgment. See Amazon.com, Inc. v. 11 Li, No. 2:21-cv-01512-TL, 2024 WL 1832466, at *8 (W.D. Wash. Apr. 26, 2024). 12 For the above reasons, this factor weighs in favor of default judgment.
13 4. The possibility of dispute concerning material facts 14 As for the fifth Eitel factor, no genuine issue of material fact exists, and the factor does 15 not weigh against default judgment. Once default is entered, well-pleaded factual allegations in 16 the operative complaint are taken as true except for the allegations relating to damages. 17 TeleVideo Sys., Inc., 826 F.2d at 917–18. Here, all Defendants are in default. See Dkt. 24. 18 5. Whether default was due to excusable neglect Under the sixth Eitel factor, the Court examines whether Defendants’ default resulted 19 from excusable neglect. See PepsiCo, 238 F. Supp. 2d at 1177. Plaintiffs have provided evidence 20 that Defendants were served, see Dkt. 21, 26, and there is no evidence in the record to support a 21 finding that Defendants’ failure to respond is the result of excusable neglect. Accordingly, the 22 sixth Eitel factor weighs in favor of default judgment. 23 24 1 6. Policy favoring decisions on the merits 2 Finally, the seventh Eitel factor favors that courts decide cases “upon their merits 3 whenever reasonably possible.” Eitel, 782 F.2d at 1472. When a defendant fails to appear or
4 defend themselves in an action, however, the policy favoring decisions on the merits is not 5 dispositive. See PepsiCo, 238 F. Supp. 2d at 1177. Indeed, Federal Rule of Civil Procedure 55 6 allows courts to issue a default judgment if a defendant fails to appear or defend. Id. The Court 7 finds that the seventh Eitel factor does not weigh against default judgment here. 8 D. Plaintiffs are entitled to remedies. Since the Court finds the Eitel factors weigh in favor of entry of default judgment against 9 Defendants, the Court now turns to remedies. See TeleVideo Sys., Inc., 826 F.2d at 917– 18. The 10 Court does not consider defaulting defendants to have admitted the facts alleged concerning 11 damages. Id. at 917. Instead, plaintiffs moving for default judgment should submit “a declaration 12 and other evidence establishing [their] entitlement to a sum certain and to any nonmonetary relief 13 sought.” Local Rules W.D. Wash. 55(b)(2). 14 1. Statutory damages 15 “[S]tatutory damages may compensate the victim, penalize the wrongdoer, deter future 16 wrongdoing, or serve all of those purposes.” Amazon.com, Inc. v. Dong, No. C23-159, 2024 WL 17 775900 (W.D. Wash. Feb. 26, 2024) (quoting Y.Y.G.M. SA v. Redbubble, Inc., 75 F.4th 995, 18 1008 (9th Cir. 2023)). “The plaintiff, however, is not entitled to a windfall.” Li, 2024 WL 19 1832466, at *8. 20 Oofos seeks a total of $3,127,316 in statutory damages against Defendants, Dkt. 31-1 at 21 2. Where there is willful use of a counterfeit mark, courts may award statutory damages between 22 $1,000 and no more than $2,000,000 per trademark affected. See 15 U.S.C. §§ 1117(c)(1)–(2). 23 24 1 Because the Court assumes the truth of Plaintiffs’ allegations of willful infringement, see 2 Dkt. 8 ¶ 46, it grants the statutory damages sought. See Derek Andrew, Inc. v. Poof Apparel 3 Corp., 528 F.3d 696, 702 (9th Cir. 2008) (“The district court entered default and Poof concedes
4 that its default occurred with respect to a complaint that pled wilfulness. Thus, all factual 5 allegations in the complaint are deemed true, including the allegation of Poof’s willful 6 infringement of Andrew’s trademarks.”). The Court finds the sum to be reasonably calculated 7 and supported by written declaration, see Dkt. 32 at 3–4, and accordingly grants the statutory 8 damages sought. 9 2. Actual Damages 10 “The general measure of damages for breach of contract is that the injured party is 11 entitled to: (1) recovery of all damages that accrue naturally from the breach, and (2) to be put 12 into as good a pecuniary position as he would have had if the contract had been
13 performed.” Entry Select Ins. Co. v. Silver Arrow Cars, Ltd., No. C19-0598, 2020 WL 1847749 14 (W.D. Wash. Apr. 13, 2020) (citing Diedrick v. Sch. Dist. 81, 87 Wn.2d 598, 610 (1976)). 15 Amazon Services LLC seeks awards of $210,937 against Defendant GuangMing Tang; 16 $175,647 against Defendant Kang Sun; $41,994 against Defendant Wenjie Fan; $116,605 against 17 Defendant Xiaofei Liu; $46,517 against Defendant Zhi Li; $8,115 against Defendant Yachun He; 18 and $37,013 against Defendant Haiqing Hu. Dkt. 32 ¶ 4. These are the amounts Amazon 19 Services LLC paid consumers who bought counterfeit goods sold by these Defendants’ accounts. 20 See id. Because Defendants agreed to reimburse Amazon for these payments, the Court finds 21 these damages to be appropriate and just. 22 3. Permanent Injunction Plaintiffs also seek a permanent injunction enjoining Defendants from: 23 a. selling counterfeit or infringing products in Amazon’s stores; 24 1 b. selling counterfeit or infringing products to Amazon or any Amazon affiliate; c. importing, manufacturing, producing, distributing, circulating, offering to sell, 2 selling, promoting, or displaying any product or service using any simulation, reproduction, counterfeit, copy, or colorable imitation of Oofos’s brand or 3 trademarks, or which otherwise infringes Oofos’s intellectual property, in any store or in any medium; and 4 d. assisting, aiding, or abetting any other person or business entity in engaging in 5 or performing any of the activities referred to in subparagraphs (a) through (c) above. 6 Dkt. 8 § VI(A). The Lanham Act authorizes the Court to “grant injunctions according to 7 principles of equity and upon such terms as the court may deem reasonable, to prevent the 8 violation of any right of the trademark owner.” Reno Air Racing Ass’n., Inc. v. McCord, 452 9 F.3d 1126, 1137–38 (9th Cir. 2006) (internal quotations omitted). Similarly, the Washington 10 Consumer Protection Act also allows parties to seek a permanent injunction to prevent further 11 violations. RCW 19.86.090. A permanent injunction is “an act of equitable discretion” such that 12 courts should analyze “traditional equitable principles” before granting. See eBay Inc. v. 13 MercExchange, LLC, 547 U.S. 288, 391–92 (2006). A plaintiff seeking permanent injunction 14 should satisfy the following four-factor test before a court may grant such relief (“equitable 15 factors”): that (1) the plaintiff has suffered an irreparable injury, (2) remedies available at law, 16 such as monetary damages, are inadequate to compensate for that injury, (3) considering the 17 balance of hardships between plaintiff and defendant, a remedy in equity is warranted, and 18 (4) the public interest is not disserved by a permanent injunction. See id. at 391. 19 First, when “infringement is shown, irreparable injury is generally presumed in a 20 trademark case.” T-Mobile USA, Inc. v. Terry, 862 F. Supp. 2d 1121, 1133 (W.D. Wash. 2012); 21 15 U.S.C. § 1116 (“A plaintiff seeking any such injunction shall be entitled to a rebuttable 22 presumption of irreparable harm upon a finding of a violation identified in this subsection in the 23 case of a motion for a permanent injunction”). Since the Court therefore presumes irreparable 24 1 injury under 15 U.S.C. § 1116, and the defaulting Defendants fail to provide any rebuttal of such 2 presumption, the first of the equitable factors is met. 3 Second, as Plaintiffs note, this Court previously found that the second factor favored the
4 plaintiffs in a case where the plaintiffs requested a similar injunction because “the reputational 5 damage caused by counterfeiting is difficult to quantify and Defendants’ failure to respond 6 suggests their infringing activities may continue. The second equitable factor also weighs in 7 favor of injunction, so that repetitive lawsuits will be unnecessary.” Amazon.com Inc. v. Zhi, 8 2024 WL 943465, at *5–7 (W.D. Wash., Mar. 4, 2024). The Court comes to the same conclusion 9 here. 10 Third, the balance of hardships also supports the injunction sought by Plaintiffs. Without 11 an injunction, Defendants could continue selling counterfeit Oofos products and cause continued 12 hardship for Plaintiffs whether financially or through requiring additional lawsuits to enforce
13 Plaintiffs’ rights. 14 Fourth, a permanent injunction serves the public interest by protecting the rights of 15 trademark holders and minimizing consumer confusion and the risk of purchasing fraudulent 16 merchandise. See Amazon.com, Inc. v. White, No. C20-1773-JHC, 2022 WL 1641423, at *7 17 (W.D. Wash. May 24, 2022) (citing Treemo, Inc. v. Flipboard, Inc., 53 F. Supp. 3d 1342, 1368 18 (W.D. Wash. 2014)); Amazon.com Inc. v. Robojap Techs. LLC, No. C20-694-MJP, 2021 WL 19 5232130, at *4 (W.D. Wash. Nov. 10, 2021)). 20 Accordingly, the Court grants the requested permanent injunction. 21 III. CONCLUSION 22 For the foregoing reasons, the Court GRANTS Plaintiffs motion for default judgment
23 (Dkt. 31), and JUDGMENT is entered against Defendants on Oofos’s Cause of Action for 24 Trademark Counterfeiting and Trademark Infringement (15 U.S.C. § 1114), Oofos’s Causes of 1 Action for False Designation of Origin and False Advertising (15 U.S.C. § 1125(a)), Amazon’s 2 Cause of Action for False Designation of Origin (15 U.S.C. § 1125(a)), Plaintiffs’ Cause of 3 Action for Violation of the Washington Consumer Protection Act (RCW 19.86.010 et seq.), and
4 Amazon.com Services LLC’s Cause of Action for Breach of Contract. 5 The Court awards Oofos statutory damages in the amount of $3,127,316 based on 6 Defendants’ willful violations of the Lanham Act, as follows: 7 a. An award of $1,021,733 against GuangMing Tang, for counterfeit sales from the 8 following Selling Accounts: “BH- Boston” and “Briceno LLC”; 9 b. An award of $852,151 against Kang Sun, for counterfeit sales from the following 10 Selling Accounts: “BricenoLLC.” and “Empressiv Glow Hydration and Wellness, LLC.”; 11 c. An award of $208,520 against Wenjie Fan, for counterfeit sales from the following 12 Selling Account: “True LLC”;
13 d. An award of $524,631 against Xiaofei Liu, for counterfeit sales from the Selling 14 Account: “Antonious New”; 15 e. An award of $240,436 against Zhi Li, for counterfeit sales from the Selling Accounts: 16 “Angel Seller” and “Briceno LLC.”; f. An award of $101,975 against Yachun He, for 17 counterfeit sales from the Selling Account: “Angel Seller”; 18 g. An award of $174,980 against Haiqing Hu, for counterfeit sales from the Selling 19 Account: “Premier Outlets.” 20 The Clerk is directed to enter judgment against each Defendant and in favor of Oofos in 21 the amounts set forth above. 22 The Court awards Amazon its actual damages for Defendants’ breaches of contract as
23 follows: 24 1 a. An award of $210,937 against Defendant GuangMing Tang for Amazon’s damages 2 arising from the counterfeit sales from the following Selling Accounts: “BH- Boston” and 3 “Briceno LLC”;
4 b. An award of $175,647 against Defendant Kang Sun for Amazon’s damages arising 5 from the counterfeit sales from the following Selling Accounts: “BricenoLLC” and 6 “Empressiv Glow and Wellness, LLC”; 7 c. An award of $41,994 against Defendant Wenjie Fan for Amazon’s damages arising 8 from the counterfeit sales from the following Selling Account: “True LLC”; 9 d. An award of $116,605 against Defendant Xiaofei Liu for Amazon’s damages arising 10 from the counterfeit sales from the following Selling Account: “Antonious New”; 11 e. An award of $46,517 against Defendant Zhi Li for Amazon’s damages arising from the 12 counterfeit sales from the following Selling Accounts: “Angel Seller” and “Briceno
13 LLC”; 14 f. An award of $8,115 against Defendant Yachun He for Amazon’s damages arising from 15 the counterfeit sales from the following Selling Account: “Angel Seller”; and 16 g. An award of $37,013 against Defendant Haiqing Hu for Amazon’s damages arising 17 from the counterfeit sales from the following Selling Account: “Premier Outlets.” 18 The Clerk is directed to enter judgment against each Defendant and in favor of Amazon 19 for the amounts set forth above. 20 Defendants and their officers, agents, servants, employees, and attorneys, and all others 21 in active concert or participation with them who receive actual notice of the order, are hereby 22 permanently ENJOINED AND RESTRAINED from:
23 a. selling counterfeit or infringing products in Amazon’s stores; 24 b. selling counterfeit or infringing products to Amazon or any Amazon affiliate; 1 c. importing, manufacturing, producing, distributing, circulating, offering to sell, selling, 2 promoting, or displaying any product using any simulation, reproduction, counterfeit, 3 copy, or colorable imitation of Oofos’s brand or trademarks, or which otherwise infringes
4 Oofos’s intellectual property, in any store or in any medium; and 5 d. assisting, aiding, or abetting any other person or business entity in engaging in or in 6 performing any of the activities referred to in subparagraphs (a) through (c) above. 7 The Court hereby retains jurisdiction over this case for the purpose of enforcing this 8 Order and Injunction, and for any supplemental proceedings that may be authorized by law. 9 Plaintiffs’ counsel is hereby directed to serve a copy of this Order and Injunction on 10 Defendants’ last known email addresses registered with the payment service provider Payoneer, 11 Inc., which Plaintiffs used to complete service. 12
13 Dated this 24th day of July, 2024. 14 A 15 Tiffany M. Cartwright 16 United States District Judge
18 19 20 21 22 23 24