E.L.V.H. Inc. v. Andrew Bennett

• Court: District Court, C.D. California
• Decided: February 6, 2020
• Docket: 2:18-cv-00710
• Status: Unknown

Opinion

O 1

3 4

7 8 United States District Court 9 Central District of California

11 E.L.V.H. INC.; EDWARD VAN Case No. 2:18-cv-00710-ODW (PLAx) 12 HALEN 13 Plaintiffs, ORDER GRANTING PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT 14 v. [34] ANDREW BENNETT, 15 Defendant. 16

17 I. INTRODUCTION 18 Plaintiffs E.L.V.H. Inc. and Edward Van Halen (collectively “Van Halen”) move 19 for default judgment against Defendant Andrew Bennett (“Bennett”) in this copyright 20 21 infringement and breach of contract action (“Motion”). (ECF No. 34.) For the reasons discussed below, the Court GRANTS Van Halen’s Motion.1 22 II. BACKGROUND 23 Since 2006, Van Halen invited Bennett to film him and others at his recording 24 studio named 5150, located in Los Angeles, California. (Compl. ¶¶ 5–7, 9, ECF No. 25 1.) Van Halen instructed Bennett to film the rehearsals and later use the film footage 26 27

28 1 After carefully considering the papers filed in support of the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 and audio files (“Subject Material”) to make a long-form DVD or video project. 2 (Compl. ¶¶ 5–7, 9.) Bennett signed a “Confidentiality Agreement” on February 20, 3 2007. (Compl. ¶10, Ex. 1 (“Confidentiality Agreement”), ECF No. 1-1.) In this 4 agreement, Bennett acknowledged that he would be exposed to personal and private 5 information of Van Halen, and agreed not disclose any information obtained or learned 6 by him relating to Van Halen, “his business, his personal or professional activities, 7 finances, or EVH’s family friends or acquaintances, without the prior written consent 8 of EVH.” (Confidentiality Agreement 1.) 9 The Subject Material was never used commercially, and years later, Bennett 10 threatened to release the Subject Material, claiming that Mr. Van Halen never paid him. 11 (Compl. ¶ 11.) On August 31, 2015, the parties entered into a Settlement Agreement 12 and Release, which required Bennett to transfer the Subject Material and all other video 13 footage and audio files to Van Halen. (Compl. ¶13; Preliminary Injunction and 14 Impoundment Order (“Prelim. Inj.”), Ex. 2 (“Settlement Agreement”), ECF No. 28). 15 The Settlement Agreement required Bennett to provide to Van Halen his copies of the 16 Subject Material and to transfer the copyrights therein. (See Settlement Agreement.) 17 Bennett also signed an “Affidavit and Assignment” in which he swore under penalty of 18 perjury that he does not “possess any video footage and/or audio files . . . that in any 19 way deals with, pertains to, or covers,” Van Halen. (Settlement Agreement 15.) The 20 Affidavit and Assignment also transfers the copyright in the Subject Material to Van 21 Halen. (Settlement Agreement 15.) 22 Van Halen alleges that Bennett released the Subject Material on the website 23 “http://5150vault.com.,” and thereby, breached the Confidentiality Agreement and 24 Settlement Agreement. (Compl. ¶ 17.) Van Halen then issued a copyright notice to the 25 hosting provider, GoDaddy.com, and duly suspended the website. (Compl. ¶ 19.) 26 Bennett subsequently posted the Subject Material on another website, 27 “http://thefiftyonefiftyvault.com.” (Compl. ¶ 21.) In addition to its copyrights, Van 28 Halen owns various trademarks, including the “family of 5150-formative trademarks 1 used in connection with various goods and services including amplifiers and speaker 2 systems.” (Compl. ¶ 25.) 3 On January 26, 2018, Van Halen sued Bennett and sought injunctive relief. 4 (See Compl.) On May 25, 2018, the Court entered a Preliminary Injunction that 5 enjoined Bennett from distributing the Subject Material and restrained him from 6 breaching the Confidentiality Agreement and Settlement Agreement with Van Halen. 7 (Prelim. Inj.) 8 Van Halen alleges that Bennet has violated the Court’s Preliminary Injunction. 9 For example, in an email to John Narcise (“Narcise”), Bennett revealed that he was 10 entertaining offers for purchase of his copies of the Subject Material and book 11 publishing deals regarding his past interactions with Van Halen. (Decl. of John Narcise 12 (“Narcise Decl.”) ¶¶ 4–5, Ex. 1 (“Email”), ECF No. 34-3.) Bennett has also failed to 13 surrender copies of the Subject Material as required by Section 1(B) of the Preliminary 14 Injunction which requires Bennett to surrender copies of the Subject Material in his 15 possession within seven (7) days of the issuance of the impoundment Order. (Narcise 16 Decl. ¶ 5; Prelim. Inj.) 17 Bennett has failed to appear before this Court, and accordingly, on August 31, 18 2019, Van Halen requested entry of default, which the Clerk of the Court granted. 19 (Default, ECF No. 32.) Van Halen now seeks default judgment against Bennett. 20 III. LEGAL STANDARD 21 Federal Rule of Civil Procedure (“FRCP”) 55(b) authorizes a district court to 22 grant a default judgment after the Clerk enters default under Rule 55(a). Fed. R. Civ. 23 P. 55(b). Before a court can enter a default judgment against a defendant, the plaintiff 24 must satisfy the procedural requirements set forth in FRCP 54(c) and 55, as well as 25 Local Rules 55-1 and 55-2. Fed. R. Civ. P. 54(c), 55; C.D. Cal. L.R. 55-1, 55-2. Local 26 Rule 55-1 requires that the movant submit a declaration establishing: (1) when and 27 against which party default was entered; (2) identification of the pleading to which 28 default was entered; (3) whether the defaulting party is a minor, incompetent person, or 1 active service member; (4) that the Servicemembers Civil Relief Act, 50 U.S.C. § 3931, 2 does not apply; and that (5) the defaulting party was properly served with notice, if 3 required under Rule 55(b)(2). C.D. Cal. L.R. 55-1. 4 If these procedural requirements are satisfied, a district court has discretion to 5 enter default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). “[A] 6 defendant’s default does not automatically entitle the plaintiff to a court-ordered 7 judgment.” PepsiCo, Inc., v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal 8 2002). In exercising discretion, a court must consider several factors (the “Eitel 9 Factors”): 10 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 11 substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning 12 material facts; (6) whether the default was due to excusable neglect, and 13 (7) the strong policy underlying the [FRCP] favoring decisions on the merits. 14 15 Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). Generally, after the Clerk 16 enters default, the defendant’s liability is conclusively established, and the well-pleaded 17 factual allegations in the complaint are accepted as true, except those pertaining to 18 damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per 19 curiam) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). 20 IV. DISCUSSION 21 Van Halen has complied with the relevant procedural requirements for default 22 judgment against Bennett and has established that the Eitel factors favor default 23 judgment on all claims. 24 A. Procedural Requirements 25 Van Halen has complied with the relevant procedural requirements for entry of 26 default judgment against Bennett by submitting a declaration which states: (1) the Clerk 27 entered default against Bennett on September 3, 2019; (2) the default was entered on 28 the Complaint appearing at ECF No. 1; (3)&(4) Bennett is not an infant, incompetent 1 person, or active service member so the Servicemembers Civil Relief Act does not 2 apply; and (5) Bennett has failed to appear or otherwise respond to the Complaint. 3 (Decl. of Eric Levinrad (“Levinrad Decl.”) ¶¶ 10–12, ECF No. 34-2.) Bennett has failed 4 to make an appearance in this action, and as such, service of notice of this application 5 for entry of default judgment on Bennett is not required by Fed. R. Civ. Pr. 55(b)(2). 6 (Mot. 6.) Therefore, Van Halen has satisfied the requirements of FRCP 54(c) and 55, 7 as well as Local Rule 55-1. 8 B. Factors 9 Van Halen seeks default judgment as to all five of its causes of action. (Mot. 7– 10 11.) The Court finds the Eitel factors weigh in favor of entering default judgment as to 11 all of Van Halen’s causes of action. 12 1. Possibility of Prejudice to Plaintiff 13 The first Eitel factor asks whether the plaintiff will suffer prejudice if a default 14 judgment is not entered. Eitel, 782 F.2d at 1471. Denial of default leads to prejudice 15 when it leaves a plaintiff without a remedy or recourse to recover compensation. 16 Landstar Ranger, Inc. v. Parth Enter., Inc., 725 F. Supp. 2d 916, 920 (C.D. Cal. 2010); 17 PepsiCo, 238 F. Supp. 2d at 1177. Bennet has failed to appear or participate in this 18 action. Absent entry of default judgment, Van Halen is without recourse to recover. 19 Accordingly, this factor weighs in favor of default judgment. 20 2. Substantive Merits & 3. Sufficiency of the Complaint 21 The second and third Eitel factors “require that a plaintiff state a claim on which 22 the [plaintiff] may recover.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 23 F.R.D. 494, 499 (C.D. Cal. 2003) (alteration in original) (quoting PepsiCo, 238 F. Supp. 24 2d at 1175). To weigh these two factors, the Court must evaluate the merits of each 25 cause of action. 26 Copyright Infringement 27 To prove copyright infringement, a plaintiff must show (1) ownership of a valid 28 copyright and (2) copying of constituent elements of the work that are original. Feist 1 Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). 2 Van Halen has met the first requirement for copyright infringement by 3 demonstrating ownership of a valid copyright in the Subject Material. Foremost, Van 4 Halen has provided evidence demonstrating registration of the Subject Materials with 5 United States Copyright Office. (See Compl., Exs. 9–10.) Therefore, Van Halen has 6 made a prima facie showing of ownership. Three Boys Music Corp. v. Bolton, 212 F.3d 7 477, 488–89 (9th Cir. 2000) (“Registration is prima facie evidence of the validity of a 8 copyright.”). Since, Bennett has not appeared to rebut this showing, the Court 9 concludes that Van Halen owns a valid copyright in the Subject Material. 10 Van Halen has also met the second requirement for copyright infringement. 11 Specifically, Van Halen alleges copying by asserting that Bennett had retained a copy 12 to the Subject Material and produced, distributed and/or sold infringing copies of the 13 Subject Material on the following websites: http://5150vault.comand and 14 http://thefiftyonefiftyvault.com. (Compl. ¶¶ 29–30.) Through the evidence provided, 15 Van Halen has demonstrated that (1) the Bennett had access to the copyrighted work 16 prior to the Subject Material being released; and (2) Bennett released the infringing 17 copies of the Subject Material on his websites. See Twentieth Century Fox Film Corp. 18 v. Streeter, 438 F. Supp. 2d 1065, 1071 (D. Ariz. 2006) (finding defendant had 19 committed copyright infringement by distributing without authorization copies of the 20 copyrighted materials on the internet). Therefore, the Court finds that the well-pleaded 21 allegations in the Complaint state a claim for copyright infringement. 22 Cybersquatting 23 Under the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 24 1125(d), cybersquatting “occurs when a person other than the trademark holder registers 25 the domain name of a well known trademark and then attempts to profit from this by 26 either ransoming the domain name back to the trademark holder or by using the domain 27 name to divert business from the trademark holder to the domain name holder.” Bosley 28 Med. Inst., Inc. v. Kremer, 403 F.3d 672, 680 (9th Cir. 2005). The ACPA authorizes a 1 trademark owner to bring a civil suit against any person who: “‘(i) has a bad faith intent 2 to profit from that mark . . . ; and (ii) registers, traffics in, or uses a domain name that . 3 . . is identical or confusingly similar to or [in certain cases] dilutive of that mark . . . .’” 4 Verizon California Inc. v. Navigation Catalyst Sys., Inc., 568 F. Supp. 2d 1088, 1094 5 (C.D. Cal. 2008) (quoting 15 U.S.C. § 1125(d)(1)(A)). 6 First, Van Halen alleges that he holds copyright protections in the 5150 mark and 7 that Bennett “registered, trafficked in, and/or used domain names that are identical or 8 confusingly similar to the 5150 mark, which was distinctive at the time [Bennett] 9 registered the domain names.” (Compl. ¶¶ 35, 37.) Accordingly, the Court finds that 10 Bennett’s websites use the identical or confusingly similar marks as Van Halen’s 5150 11 mark. (Compl. ¶¶ 37–38.); Wilens v. Doe Defendant No. 1, No. 3:14-CV-02419-LB, 12 2015 WL 4606238, at *13 (N.D. Cal. July 31, 2015) (Courts compare the plaintiff’s 13 mark with the name of the website in determining whether there is a likelihood of 14 confusion under the ACPA.) 15 Second, Van Halen further alleges that Bennett “had a bad-faith intent to profit 16 from the 5150 mark.” (Compl. ¶ 36.) The Court finds that Van Halen has sufficiently 17 alleged bad-faith intent to profit because: (1) Bennett has released the Subject Material 18 on his own websites (Compl. ¶¶ 11, 37–38) and (2) Bennett responded to this Court’s 19 preliminary injunction by stating “I say this with the utmost respect to you, the legal 20 profession and the justice system. Ed’s lawsuit means nothing to me. Nothing.” (Decl. 21 Narcise ¶ 3; Email.) Clearly, Bennett’s alleged conduct constitutes bad-faith intent to 22 profit off of Van Halen’s 5150 mark. Therefore, Van Halen’s Complaint properly states 23 a meritorious claim for violation of the ACPA. 24 Use of Name or Likeness 25 California Civil Code Section 3344 provides in relevant part, “[a]ny person who 26 knowingly uses another’s name, voice, signature, photograph, or likeness, in any 27 manner . . . for purposes of advertising . . . without such person’s prior consent . . . shall 28 be liable for any damages sustained by the person.” Cal. Civ. Code § 3344(a). Section 1 3344, unlike a common law claim, requires a plaintiff to establish: (1) a “knowing” use; 2 (2) for purposes of advertising, and (3) a direct connection between the use and the 3 commercial purpose. Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998). 4 Here, Van Halen alleges that Bennett violated section 3344 by knowingly using 5 “[] Van Halen’s name, voice, photograph and likeness for [Bennett’s] commercial 6 advantages . . . without [] Van Halen’s permission or consent.” (Compl. ¶ 45.) 7 Specifically, Van Halen alleges that Bennett threatened to release film footage of Van 8 Halen, and that he was entertaining offers for purchase of his copies of the footage. 9 (Compl. ¶ 11.) Moreover, the alleged footage also appeared and was offered for sale at 10 www.directedbyandrewbennett.com/vanhalenabouttimeweb.mov, 11 www.youtube.com/watch?v=Lj0B8df2jTw, and www.etsy.com/people/1trjfvg4. 12 (Compl. ¶ 24.) Hence, Van Halen has been damaged by Bennett’s unauthorized use of 13 his name, voice, photograph, and likeness, and therefore, Van Halen’s Complaint 14 properly states a meritorious claim for violation of section 3344. 15 Misappropriation of Common Law Right of Publicity 16 To sustain a common law cause of action for commercial misappropriation, a 17 plaintiff must prove: “(1) the defendant’s use of the plaintiff’s identity; (2) the 18 appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or 19 otherwise; (3) lack of consent; and (4) resulting injury.” Newcombe, 157 F.3d at 692. 20 Here, it is alleged that Bennett, without Van Halen’s consent, used and continues 21 to use, “Van Halen’s name, voice, photograph and likeness to market, advertise, and 22 promote himself and his infringing sales of the 5150 vault, including on his websites, 23 http://5150vault.com and http://thefiftyonefiftyvault.com.” (Compl. ¶ 50.) Van Halen 24 further alleges that Bennett has harmed him by (1) interfering with his ability to control 25 how, when and through which channels consumers can view their works; (2) harming 26 his business relationships; (3) diluting the pent-up demand of his fans. (Mot. 13–14.) 27 Therefore, Van Halen properly states a meritorious claim for misappropriation of 28 common law right of publicity. See Newcombe, 157 F.3d at 692. 1 Breach of Contract 2 A breach of contract action in California requires a plaintiff to establish: “(1) the 3 existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, 4 (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” Oasis W. Realty, 5 LLC v. Goldman, 51 Cal. 4th 811, 821 (2011). 6 First, Van Halen assert that Bennett entered into two valid and binding 7 agreements, the Confidentiality Agreement and Settlement Agreement. (Compl. ¶¶ 56, 8 58; See Confidentiality Agreement; See Settlement Agreement.) Second, Van Halen 9 alleges that they have performed all conditions, covenants, and promises on under both 10 agreements. (Compl. ¶ 61.) Third, Van Halen alleges that Bennett breached the 11 confidentiality agreement by disclosing Van Halen’s confidential information to the 12 public, without Van Halen’s consent, in connection with Bennet’s sale of the 5150 13 Vault. (Compl. ¶ 57.) Moreover, Van Halen alleges that Bennett breached the 14 Settlement Agreement by retaining and not providing to Van Halen all the video footage 15 and audio files that in any way deal with, pertain to, or cover Van Halen. (Compl. ¶ 16 59.) Finally, Van Halen has been harmed by Bennett’s breach in an amount no less than 17 $350,000 pursuant to the Agreements. (Compl. ¶¶ 63, 66.) Accepting as true the well- 18 pleaded factual allegations in the Complaint, Van Halen has stated a claim for breach 19 of contract. 20 Van Halen has stated claims on which it may recover as to its copyright 21 infringement, cybersquatting, use of name and likeness, misappropriation of common 22 law right of publicity, and breach of contract. As such, the second and third Eitel factors 23 favor default judgment on those claims. 24 4. Amount at Stake 25 The fourth Eitel factor balances the amount of money at stake with the 26 “seriousness of Defendant’s conduct.” PepsiCo, 238 F. Supp. 2d at 1176; Eitel, 782 27 F.2d at 1471. The amount at stake must be proportionate to the harm alleged. Landstar, 28 725 F. Supp. 2d at 921. “Default judgment is disfavored where the sum of money at 1 stake is too large or unreasonable in light of defendant’s action.” Truong Giang Corp. 2 v. Twinstar Tea Corp., No. C 06-03594 JSW, 2007 WL 1545173, at *12 (N.D. Cal. 3 May 29, 2007). 4 Here, Van Halen does not seek a default judgment for monetary damages, but 5 instead limit their request to a judgment granting them a permanent injunction. (Mot. 6 10–11.) Accordingly, this factor favors granting default judgment. See PepsiCo, 238 7 F. Supp. 2d at 1177 (finding that when plaintiff does not seek monetary damages, only 8 injunctive relief, this factor favors granting default judgment.) 9 5. Possibility of Dispute 10 The fifth Eitel factor considers the possibility that material facts are in dispute. 11 PepsiCo, 238 F. Supp. 2d at 1177. As the allegations in Van Halen’s Complaint are 12 presumed true, Bennet’s failure to appear in this action results in a finding that “no 13 factual disputes exist that would preclude entry of default judgment.” Vogel v. Rite Aid 14 Corp., 992 F. Supp. 2d 998, 1013 (C.D. Cal. 2014). Accordingly, this factor favors 15 granting default judgment. 16 6. Possibility of Excusable Neglect 17 The sixth Eitel factor considers the possibility that a defendant’s default is the 18 result of excusable neglect. PepsiCo, 238 F. Supp. 2d at 1177. Here, Bennett has sent 19 emails to counsel, in which Bennett acknowledged the existence of the lawsuit, and 20 stated that the action “means nothing to me. . . Nothing.” (Email.) Despite admittedly 21 knowing about the lawsuit, Bennett failed to file a responsive pleading. Accordingly, 22 this factor favors entry of default judgment. See also PepsiCo, 238 F. Supp. at 1177 23 (finding no possibility of excusable neglect precluding default judgment where 24 defendant, after being served with the complaint, “contacted Plaintiffs’ counsel to 25 discuss settlement of the matter,” but failed to respond to the complaint.). 26 7. Policy Favoring Decisions on the Merits 27 “[D]efault judgments are ordinarily disfavored. Cases should be decided upon 28 their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472 (citing Pena v. 1 Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)). However, where the 2 defendant fails to answer the plaintiff’s complaint, “a decision on the merits [is] 3 impractical, if not impossible.” PepsiCo, 238 F. Supp. 2d at 1177. Because Bennet 4 failed to appear or otherwise respond, a determination on the merits is impossible. 5 Accordingly, this factor does not preclude entry of default judgment. 6 On balance, the Eitel factors support entry of default judgment on Van Halen’s 7 causes of action for copyright infringement, cybersquatting, use of name and likeness, 8 misappropriation of common law right of publicity, and breach of contract. As such, 9 the Court GRANTS Van Halen’s Motion for Default Judgment. 10 C. Remedies And Damages 11 Court has previously granted Van Halen a temporary restraining order (TRO, 12 ECF No. 22) and a preliminary injunction (Prelim. Inj., ECF No. 28) against Bennet. 13 Van Halen now seek a permanent injunction. Under the Copyright Act, the Court “may 14 grant temporary and final injunctions on such terms as it may deem reasonable to 15 prevent or restrain infringement of a copyright.” 17 U.S.C. §502(a). In order for the 16 Court to grant a permanent injunction, plaintiff must demonstrate: “(1) that it has 17 suffered an irreparable injury; (2) that remedies available at law, such as monetary 18 damages, are inadequate to compensate for that injury; (3) that, considering the balance 19 of hardships between the plaintiff and defendant, a remedy in equity is warranted; and 20 (4) that the public interest would not be disserved by a permanent injunction.” eBay 21 Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 22 1. Plaintiffs Have Suffered Irreparable Injury 23 Van Halen asserts that Bennett’s continued threat of release, promotion, and sale 24 of the Subject Material will cause irreparable injury by (1) interfering with Van Halen’s 25 ability to control how, when and through which channels consumers can view his 26 works; (2) damaging Van Halen’s business relationships; (3) and diluting the pent-up 27 demand of Van Halen fans. (Mot. 13–14.) As discussed above, the Court finds that 28 Bennett has injured Van Halen and will continue to release the Subject Material through 1 multiple channels, and thereby, denying Van Halen the right to control the use of its 2 copyrighted material and harming its business relationships. See Metro-Goldwyn- 3 Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1217 (C.D. Cal. 2007) 4 (finding that plaintiff was irreparably harmed because it could not control the use of its 5 copyrighted materials); Universal City Studios, Inc. v. J.A.R. Sales, Inc., No. 82-4892- 6 AAH (BX), 1982 WL 1279, at *8 (C.D. Cal. Oct. 20, 1982) (finding that adverse effects 7 on plaintiffs’ business relationships established irreparable harm). Accordingly, Van 8 Halen has established that it has and will continue to suffer irreparable injury. 9 2. Inadequacy of Monetary Damages and Other Remedies At Law 10 Van Halen asserts that monetary damages are inadequate because Bennett’s 11 infringement undermines Van Halen’s hard-earned reputation and goodwill by 12 hijacking his brand and associating it with products not to up Van Halen’s standards. 13 (Mot. 15.) The Court agrees. First, “where, as here, injury to goodwill and weakening 14 of a trade name are alleged, it would be impossible to quantify the monetary loss, if any, 15 suffered by the plaintiff. This renders the legal remedy inadequate.” Beachbody, LLC 16 v. Kteam Enterprises, Ltd., No. CV1603054ABMRWX, 2017 WL 7806558, at *3 (C.D. 17 Cal. June 19, 2017) (quoting Dunhill Ltd. v. Dunhill Compact Classics Inc., No. 88 18 5584 WDK (BX), 1988 WL 391507, at *2 (C.D. Cal. Dec. 28, 1988)). 19 Second, as discussed above, Bennett has refused to participate in this action and 20 has continued to threaten to infringe upon Van Halen’s copyright materials. 21 Accordingly, legal remedies are inadequate here because Bennett’s “lack of 22 participation in this litigation has given the court no assurance that [Bennett] infringing 23 activity will cease.” Id. Therefore, the Court finds that monetary damages are in 24 inadequate under these circumstances. See id. 25 3. Balance of Hardships Favors Plaintiffs & Permanent Injunction 26 Serves Public Interest 27 Next, Van Halen has shown that Bennett has violated the Confidentiality 28 Agreement and Settlement Agreement by releasing Van Halen’s copyrighted material 1 | on numerous websites, without Van Halen’s consent, and has threatened to continue to 2 || release the copyrighted material. (Compl. {§ 35-38.) Van Halen asserts that the 3 || injunction would only prohibit Bennett from infringing Van Halen’s copyright materials 4 and Bennett would not suffer hardship from the requested infringement. Beachbody, 5] LLC, 2017 WL 7806558, at *3 (finding that balance of hardships favored plaintiff 6 || because the injunction was limited to activity defendants admitted as unlawful). Therefore, the Court finds ‘tan injunction would serve the public interest because it 8 || would both ensure compliance with the law and would avoid consumer confusion.” Jd. 9 || (finding that an injunction would serve the public interest when defendant admitted it 10 | would continue to distribute copyright infringing videos). 1 Accordingly, the Court grants Van Halen’s request for a permanent injunction 12 || against Bennett. Finally, Van Halen does not request litigation costs nor request 13 || attorneys’ fees, and thus, the Court does not award them. (See Mot.) 14 □□□ CONCLUSION 15 For the reasons discussed above, the Court GRANTS Van Halen’s Motion for 16 || Default Judgment as to Van Halen’s causes of action for copyright infringement, 17 || cybersquatting, use of name and likeness, misappropriation of common law right of 18 || publicity, and breach of contract. (ECF No. 34.) The Court also GRANTS Van Halen’s 19 || request for permanent injunctive relief against Bennett. The Court will issue Judgment. 20 21 IT ISSO ORDERED. 22 23 February 6, 2020 <3 24 fox

6 OTIS D. WRIGHT, II UNITED STATES/DISTRICT JUDGE