1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GS HOLISTIC, LLC, Case No. 1:23-cv-00285-KJM-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT BE GRANTED IN 14 MORAD NASHER, et al., PART AND DENIED IN PART 15 Defendants. ECF No. 20 16 OBJECTIONS DUE WITHIN FOURTEEN DAYS 17 18 Plaintiff GS Holistic LLC commenced this trademark infringement action, alleging that 19 defendants used its registered marks to sell competing electronic cigarette products without 20 plaintiff’s permission. Defendants Morad Nasher and City Stars Smoke Shope have not 21 appeared, and default has been entered against them. ECF No. 17. Plaintiff has moved for 22 default judgment, ECF No. 20, and this motion was before the court for hearing on November 16, 23 2023. I recommend that plaintiff’s motion be granted in part and denied in part. 24 Background 25 The first amended complaint alleges that since 2020, plaintiff has marketed and sold glass 26 infusers and related accessories. ECF No. 13 ⁋ 8. Plaintiff is the owner of the “Stüdenglass” 27 trademark and two other related trademarks—U.S. Trademark Registration Numbers 6,633,884; 28 1 6,174,292; and 6,174,291 (“marks”)—which have been used in connection with the 2 manufacturing and sale of plaintiff’s products. Id. ⁋⁋ 11-13. Plaintiff has continuously used the 3 marks since 2020, and goods bearing the distinct marks are widely recognized as superior to 4 competing products. Id. ⁋⁋ 14-15. Defendants have, without plaintiff’s consent, sold counterfeit 5 products bearing one or more of plaintiff’s marks. Id. ⁋⁋ 25-52. Based on these allegations, 6 plaintiff alleges two claims under the Lanham Act: (1) counterfeiting and infringement under 7 trademark, 15 U.S.C. § 1114; and (2) false designation of origin and unfair competition, 15 8 U.S.C. § 1125(a). Id. at 13-16. 9 On July 1, 2023, defendants were personally served with a summons and a copy of the 10 complaint. ECF No. 16 at 2-3. After defendants did not appear, the Clerk of Court entered their 11 default. ECF No. 17. Plaintiff has filed a motion for default judgment against defendants. ECF 12 No. 20. 13 At the hearing, I expressed some concerns with plaintiff’s motion. First, the complaint 14 sued defendant Nasher twice, both as an individual and as doing business as City Stars Smoke 15 Shop. Second, the proofs of service did not specify whether the initial or amended complaint was 16 served on defendants. Finally, the requested damages appeared to be unsupported by the 17 allegations in the amended complaint. In response to these concerns, plaintiff submitted 18 supplemental briefing on December 15, 2023. ECF No. 26. 19 Legal Standard 20 Under Federal Rule of Civil Procedure 55, default may be entered against a party who 21 fails to plead or otherwise defend against an action. See Fed. R. Civ. P. 55(a). However, “[a] 22 defendant’s default does not automatically entitle the plaintiff to a court-ordered judgment.” 23 PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. 24 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)). Rather, the decision to grant or deny a motion 25 for default judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In 26 exercising that discretion, the court considers the following factors: 27 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, 28 (4) the sum of money at stake in the action, (5) the possibility of a 1 dispute concerning the material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the 2 Federal Rules of Civil Procedure favoring decisions on the merits. 3 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). “In applying this discretionary 4 standard, default judgments are more often granted than denied.” Philip Morris USA, Inc. v. 5 Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo, Inc. v. Triunfo- 6 Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)). 7 Generally, once default is entered “the factual allegations of the complaint, except those 8 relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 9 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th 10 Cir. 1977)). However, “necessary facts not contained in the pleadings, and claims which are 11 legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 12 1261, 1267 (9th Cir. 1992). 13 Discussion 14 A. Duplicative Defendants 15 Plaintiff asserts the same claims against both Nasher and Nasher doing business as City 16 Stars Smoke Shop. However, since City Stars Smoke Shop is a sole proprietorship operated by 17 Nasher, it is legally indistinguishable from him. See G&G Closed Circuit Events, LLC v. Marin, 18 No. 3:20-cv-01171-JR, 2021 WL 2277834, at * 4 (D. Or. May 7, 2021) (finding that because no 19 separate legal entity is created with a sole proprietorship, the individual remains personally 20 responsible for the business’s liabilities). Therefore, plaintiff’s claims against Nasher doing 21 business as City Stars Smoke Shop are duplicative of his claims against Nasher as an individual. 22 Accordingly, plaintiff’s motion for default judgment against defendant Nasher doing business as 23 City Stars Smoke Shop should be denied. 24 B. Appropriateness of the Entry of Default Judgment Under the Eitel Factors 25 Factors two and three—the merits of plaintiff’s substantive claims and the sufficiency of 26 the complaint—are related and best discussed together. The court must consider whether the 27 allegations in the complaint are sufficient to state a claim that supports the relief sought. See 28 PepsiCo, Inc., 238 F. Supp. 2d at 1175. 1 To state a trademark infringement claim under the Lanham Act, a plaintiff must allege 2 “(1) that [the plaintiff] has a protectible ownership interest in the mark; and (2) that the 3 defendant’s use of the mark is likely to cause consumer confusion.”1 Rearden LLC v. Rearden 4 Commerce, Inc., 683 F.3d 1190, 1202 (9th Cir. 2012). “Registration of a mark is prima facie 5 evidence of the validity of the mark, the registrant’s ownership of the mark, and the registrant’s 6 exclusive right to use the mark in connection with the goods specified in the registration.” Pom 7 Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GS HOLISTIC, LLC, Case No. 1:23-cv-00285-KJM-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT BE GRANTED IN 14 MORAD NASHER, et al., PART AND DENIED IN PART 15 Defendants. ECF No. 20 16 OBJECTIONS DUE WITHIN FOURTEEN DAYS 17 18 Plaintiff GS Holistic LLC commenced this trademark infringement action, alleging that 19 defendants used its registered marks to sell competing electronic cigarette products without 20 plaintiff’s permission. Defendants Morad Nasher and City Stars Smoke Shope have not 21 appeared, and default has been entered against them. ECF No. 17. Plaintiff has moved for 22 default judgment, ECF No. 20, and this motion was before the court for hearing on November 16, 23 2023. I recommend that plaintiff’s motion be granted in part and denied in part. 24 Background 25 The first amended complaint alleges that since 2020, plaintiff has marketed and sold glass 26 infusers and related accessories. ECF No. 13 ⁋ 8. Plaintiff is the owner of the “Stüdenglass” 27 trademark and two other related trademarks—U.S. Trademark Registration Numbers 6,633,884; 28 1 6,174,292; and 6,174,291 (“marks”)—which have been used in connection with the 2 manufacturing and sale of plaintiff’s products. Id. ⁋⁋ 11-13. Plaintiff has continuously used the 3 marks since 2020, and goods bearing the distinct marks are widely recognized as superior to 4 competing products. Id. ⁋⁋ 14-15. Defendants have, without plaintiff’s consent, sold counterfeit 5 products bearing one or more of plaintiff’s marks. Id. ⁋⁋ 25-52. Based on these allegations, 6 plaintiff alleges two claims under the Lanham Act: (1) counterfeiting and infringement under 7 trademark, 15 U.S.C. § 1114; and (2) false designation of origin and unfair competition, 15 8 U.S.C. § 1125(a). Id. at 13-16. 9 On July 1, 2023, defendants were personally served with a summons and a copy of the 10 complaint. ECF No. 16 at 2-3. After defendants did not appear, the Clerk of Court entered their 11 default. ECF No. 17. Plaintiff has filed a motion for default judgment against defendants. ECF 12 No. 20. 13 At the hearing, I expressed some concerns with plaintiff’s motion. First, the complaint 14 sued defendant Nasher twice, both as an individual and as doing business as City Stars Smoke 15 Shop. Second, the proofs of service did not specify whether the initial or amended complaint was 16 served on defendants. Finally, the requested damages appeared to be unsupported by the 17 allegations in the amended complaint. In response to these concerns, plaintiff submitted 18 supplemental briefing on December 15, 2023. ECF No. 26. 19 Legal Standard 20 Under Federal Rule of Civil Procedure 55, default may be entered against a party who 21 fails to plead or otherwise defend against an action. See Fed. R. Civ. P. 55(a). However, “[a] 22 defendant’s default does not automatically entitle the plaintiff to a court-ordered judgment.” 23 PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. 24 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)). Rather, the decision to grant or deny a motion 25 for default judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In 26 exercising that discretion, the court considers the following factors: 27 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, 28 (4) the sum of money at stake in the action, (5) the possibility of a 1 dispute concerning the material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the 2 Federal Rules of Civil Procedure favoring decisions on the merits. 3 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). “In applying this discretionary 4 standard, default judgments are more often granted than denied.” Philip Morris USA, Inc. v. 5 Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo, Inc. v. Triunfo- 6 Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)). 7 Generally, once default is entered “the factual allegations of the complaint, except those 8 relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 9 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th 10 Cir. 1977)). However, “necessary facts not contained in the pleadings, and claims which are 11 legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 12 1261, 1267 (9th Cir. 1992). 13 Discussion 14 A. Duplicative Defendants 15 Plaintiff asserts the same claims against both Nasher and Nasher doing business as City 16 Stars Smoke Shop. However, since City Stars Smoke Shop is a sole proprietorship operated by 17 Nasher, it is legally indistinguishable from him. See G&G Closed Circuit Events, LLC v. Marin, 18 No. 3:20-cv-01171-JR, 2021 WL 2277834, at * 4 (D. Or. May 7, 2021) (finding that because no 19 separate legal entity is created with a sole proprietorship, the individual remains personally 20 responsible for the business’s liabilities). Therefore, plaintiff’s claims against Nasher doing 21 business as City Stars Smoke Shop are duplicative of his claims against Nasher as an individual. 22 Accordingly, plaintiff’s motion for default judgment against defendant Nasher doing business as 23 City Stars Smoke Shop should be denied. 24 B. Appropriateness of the Entry of Default Judgment Under the Eitel Factors 25 Factors two and three—the merits of plaintiff’s substantive claims and the sufficiency of 26 the complaint—are related and best discussed together. The court must consider whether the 27 allegations in the complaint are sufficient to state a claim that supports the relief sought. See 28 PepsiCo, Inc., 238 F. Supp. 2d at 1175. 1 To state a trademark infringement claim under the Lanham Act, a plaintiff must allege 2 “(1) that [the plaintiff] has a protectible ownership interest in the mark; and (2) that the 3 defendant’s use of the mark is likely to cause consumer confusion.”1 Rearden LLC v. Rearden 4 Commerce, Inc., 683 F.3d 1190, 1202 (9th Cir. 2012). “Registration of a mark is prima facie 5 evidence of the validity of the mark, the registrant’s ownership of the mark, and the registrant’s 6 exclusive right to use the mark in connection with the goods specified in the registration.” Pom 7 Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 2014). In assessing the likelihood of 8 consumer confusion, courts consider the following eight factors: “(1) strength of the protected 9 mark; (2) proximity and relatedness of the goods; (3) type of goods and the degree of consumer 10 care; (4) similarity of the protected mark and the allegedly infringing mark; (5) marketing channel 11 convergence; (6) evidence of actual consumer confusion; (7) defendant’s intent in selecting the 12 allegedly infringing mark; and (8) likelihood of product expansion.” Id. at 1125. “[A] plaintiff 13 need not satisfy every factor, provided that strong showings are made with respect to some of 14 them.” Id. at 1126. 15 Here, plaintiff alleges that it is the owner of the three Stüdenglass marks, which are 16 associated with the sale of plaintiff’s glass infusers and related accessories. ECF No. 13 ⁋⁋ 9-11. 17 The marks are distinct, have been used continuously since 2020, and are “widely recognized and 18 exclusively associated by consumers, the public, and the trade as being high-quality products 19 sourced from” plaintiff. Id. ⁋⁋ 13-15. Without plaintiff’s consent, defendants have sold, and 20 continue to sell, counterfeit products using imitations of one or more of plaintiff’s marks. Id. 21 ⁋⁋ 26-27. These imitating marks are identical to, or substantially indistinguishable from, 22 plaintiff’s marks. Id. ⁋ 28. These allegations are sufficient to state claims for trademark 23 infringement and false designation and unfair competition. 24 1 I will address plaintiff’s claims together since the same standard applies for 25 demonstrating trademark infringement and false designation and unfair competition under the 26 Lanham Act. See, e.g., Sebastian Intern., Inc. v. Longs Drug Stores Corp., 53 F.3d 1073, 1074 (9th Cir. 1995); Grey v. Campbell Soup Co., 650 F. Supp. 1166, 1173 (C.D. Cal. 1986) (“The 27 tests for infringement of a federally registered mark under § 32(1), 15 U.S.C. § 1114(1), infringement of a common law trademark, unfair competition under § 43(a), 15 U.S.C. § 1125(a), 28 and common law unfair competition involving trademarks are the same.”). 1 The remaining Eitel factors also weigh in favor of default judgment. Defendants were 2 properly served, see ECF Nos. 4 & 6, but have not responded. Thus, it appears that their default 3 was not entered due to excusable neglect. Plaintiff seeks statutory damages, and when accepting 4 plaintiff’s allegations as true, there is little possibility of a dispute concerning material facts. See 5 Elektra Entm’t Grp. Inc. v. Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all 6 allegations in a well-pleaded complaint are taken as true after the court clerk enters default 7 judgment, there is no likelihood that any genuine issue of material fact exists.”). Additionally, 8 because defendants have not appeared in this action, plaintiff has no recourse for obtaining relief 9 absent default judgment. Finally, although decisions on the merits are favored, such a decision is 10 impossible where the defendant declines to take part in the action. See Penpower Tech. Ltd. v. 11 S.P.C. Tech., 627 F. Supp. 2d 1083, 1093 (N.D. Cal. 2008). Accordingly, plaintiff is entitled to 12 default judgment on its claims. 13 C. Requested Relief 14 Plaintiff seeks $1,276 in costs, $150,000 in statutory damages, and injunctive relief. ECF 15 No. 20 at 13-17. 16 1. Costs 17 Plaintiff’s requests for costs breaks down to $402 for the court’s filing fee, $325 for 18 completing service, and $549 for investigation fees. ECF No. 20-3 ¶ 6. Curiously, plaintiff 19 claims that he spent $325 in process server fees, yet the three proofs of service reflect that service 20 costs were $65 each. ECF Nos. 4, 14, & 15. Moreover, plaintiff’s request necessarily includes 21 the fees associated with serving both defendant Nasher and defendant Nasher doing business as 22 City Stars Smoke Shop. But because these defendants are indistinguishable, effectuating service 23 on both named defendants was duplicative and unnecessary. Finally, plaintiff’s request for 24 investigation fees should be denied because 15 U.S.C. § 1117(a) does not allow for costs incurred 25 before an action is filed. See GS Holistic, LLC v. MSA-Bossy Inc., No. 22-CV-07638-JSC, 2023 26 WL 3604322, at *6 (N.D. Cal. May 22, 2023) (denying the plaintiff’s request for investigation 27 fees because “[t]he plain language of ‘the costs of the action,’ 15 U.S.C. § 1117(a), is limited to 28 costs incurred after ‘the action’—the court case—has begun”); 15 U.S.C. § 1117(a). 1 For these reasons, plaintiff’s request for costs should be denied without prejudice. 2 Pursuant to Local Rule 292, plaintiff may make a renewed request for costs after judgment has 3 been entered.2 4 2. Damages 5 Under the Lanham Act, a plaintiff may elect to recover statutory damages instead of actual 6 damages in cases involving the use of a counterfeit mark. A plaintiff may elect to recover not 7 more than $2,000,000 per counterfeit mark so long as the court determines “that the use of the 8 counterfeit mark was willful.” 15 U.S.C. § 1117(c)(2). “The district court has wide discretion in 9 determining the amount of statutory damages to be awarded, constrained only by the specified 10 maxima and minima.” L.A. News Service v. Reuters Television Intern., Ltd., 149 F.3d 987, 996 11 (9th Cir. 1998); see also Peer Intern. Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 12 1990) (“The court is guided by what is just in the particular case, considering the nature of the 13 copyright, the circumstances of the infringement and the like.”). 14 In assessing the appropriate amount of statutory damages, courts have considered: 15 (1) the expenses saved and the profits reaped by the defendant; (2) the revenues lost by the plaintiff; (3) the value of the copyright; 16 (4) the deterrent effect on others besides the defendant; (5) whether the defendant's conduct was innocent or willful; (6) whether a 17 defendant has cooperated in providing particular records from which to assess the value of the infringing material produced; and 18 (7) the potential for discouraging the defendant. 19 Coach, Inc. v. Diva Shoes & Accessories, No. 10-5151 SC, 2011 WL 1483436, at *6 (N.D. Cal. 20 Apr. 19, 2011) (citing Microsoft Corp. v. Nop, 549 F. Supp. 2d 1233, 1237-38 (E.D. Cal. 2008)). 21 In support of its request for damages, plaintiff submits a declaration from its owner and 22 chief executive officer, Christopher Folkerts. ECF No. 20-2. With respect to damages, Mr. 23 Folkerts states that “[o]n October 20, 2022, counterfeit products bearing the Stüdenglass 24 Trademarks registered to GS were sold by the defendant store . . . . The Store sold the fake 25 product . . . for $485.35 when the actual sale price of the real product at retail is $599.95, which is 26 deceptive and confusing to the buyer as the price point is almost identical.” Id. at 2. Mr. Folkerts 27 2 While I see no issue with plaintiff’s request for the filing fee, it is best to address the 28 total costs together. 1 states that his research shows that at least three out of every ten products sold is counterfeit. ECF 2 No. 20-2 at 2. Based on that figure and his “industry knowledge,” he estimates that plaintiff’s 3 2021 sales would have been approximately $38,400,000 if the market had not been impacted by 4 fake Stüdenglass products. Id. at 2-3. 5 Plaintiff seeks $150,000—$50,000 for infringement of each mark—in statutory damages. 6 However, as plaintiff may be aware, the single incident of infringement at issue here does not 7 warrant $150,000 in damages.3 In similar situations, courts have consistently found $5,000 in 8 damages to be appropriate. See GS Holistic, LLC v. AA 110, No. 2:22-cv-02034-DAD-CKD, 9 2024 WL 200949, at *1 (E.D. Cal. Jan. 17, 2024) (awarding $5,000 in statutory damages pursuant 10 to 15 U.S.C. § 1117); GS Holistic, LLC v. Seattle Smoke Shop LLC, No. C23-5181JLR, 2023 WL 11 7386428, at *6 (W.D. Wash. Nov. 8, 2023) (same); GS Holistic, LLC v. Aman Awalom, No. 23- 12 cv-00748-CRB, 2023 WL 7458857, at *1 (N.D. Cal. Oct. 21, 2023) (same); GS Holistic, LLC v. 13 Always Lit Inc., No. 2:22-cv-05393-SVW-MAR, 2023 WL 5504955, at *5 (C.D. Cal. July 7, 14 2023) (same). 15 Moreover, the bare-bones conclusions offered by plaintiff do not warrant the requested 16 damages. Here, as in other cases, plaintiff cannot reasonably estimate actual damages and has 17 only shown one sale related to a counterfeit item. To reduce the risk of a windfall, I recommend 18 an award of $5,000 in statutory damages. See GS Holistic, LLC v. MSA-Bossy Inc., No. 22-CV- 19 07638-JSC, 2023 WL 3604322, at *6 (N.D. Cal. May 22, 2023) (“Under the circumstances, an 20 award of $5,000 is just. . . . . It is above the statutory minimum, represents almost ten times the 21 price of the only sale at issue, and serves a deterrent purpose while avoiding a windfall.”); GS 22 Holistic, LLC v. Budda Maharjan, No. 23-cv-00750-SVK, 2024 WL 1007422, at *5 (N.D. Cal. 23 Feb. 7, 2024). 24 3. Injunctive Relief 25 “Injunctive relief is the remedy of choice for trademark and unfair competition cases, 26 since there is no adequate remedy at law for the injury caused by a defendant’s continuing 27
28 3 Plaintiff has filed countless cases with nearly identical allegations. 1 infringement.” Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1180 (9th Cir. 1988). 2 To obtain a permanent injunction, a “plaintiff must demonstrate: (1) that it has suffered an 3 irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate 4 to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff 5 and defendant, a remedy in equity is warranted; and (4) that the public interest would not be 6 disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 7 (2006). “[O]nce the plaintiff establishes a likelihood of confusion, it is ordinarily presumed that 8 the plaintiff will suffer irreparable harm if injunctive relief is not granted.” Vision Sports, Inc. v. 9 Melville Corp., 888 F.2d 609, 612 n.3 (9th Cir. 1989). 10 Plaintiff argues that it is entitled to injunctive relief pursuant to 15 U.S.C. § 1116, see ECF 11 No. 20 at 16-17, but plaintiff has not met its burden for obtaining a permanent injunction, see 12 Adidas Am., Inc. v. Skechers USA, Inc., 890 F.3d 747, 756-57, 759-61 (9th Cir. 2018). As an 13 initial matter, plaintiff’s motion does not address any of the factors a court must consider before 14 entering a permanent injunction. And although plaintiff is entitled to a rebuttable presumption of 15 irreparable harm, the court must consider several factors prior to entering a permanent injunction, 16 and these factors have not been addressed by plaintiff. See GS Holistic, LLC v. AA 110, No. 2:22- 17 cv-02034-DAD-CKD, 2023 WL 8473361, at *7 (E.D. Cal. Dec. 7, 2023) (declining to 18 recommend that a permanent injunction be entered because the plaintiff failed to address the 19 factors a court must consider before entering a permanent injunction). Additionally, plaintiff’s 20 proposed permanent injunction seeks injunctive relief beyond what is sought in the amended 21 complaint. The relief would extend to “[a]ssisting, aiding or attempting to assist or aid any other 22 person or entity in performing” any of the activities prohibited by the injunction. For the 23 foregoing reasons, I decline to recommend that a permanent injunction be entered at this time. 24 Finally, plaintiff seeks an order under 15 U.S.C. § 1118 requiring that “Defendants, at 25 their cost, deliver to the Plaintiff for destruction all products, accessories, labels, signs, prints, 26 packages, wrappers, receptacles, advertisements, and other material in their possession, custody 27 or control bearing any of the Stündenglass Marks.” ECF No. 20 at 17. I do not find that a one- 28 time purchase of a single item with the marks warrants an order imposing the destruction of any 1 || article item with the mark. Again, courts have denied this request and plaintiff has presented no 2 || new evidence warranting a departure from those rulings. See GS Holistic, LLC, v. Iman Corp. 3 || Inc., No. C23-0315JLR, 2024 WL 1012896, at *7 (W.D. Wash. Mar. 8, 2024) (denying □□□□□□□□□□□ 4 || request for an order pursuant to 15 U.S.C. § 1118). 5 Accordingly, it is hereby RECOMMENDED that: 6 1. Plaintiff's motion for default judgment, ECF No. 20, be granted in part and denied in 7 | part as follow: 8 a. the motion be granted as to plaintiff’s claims against defendant Morad Nasher; 9 b. the balance of the motion be denied; and 10 c. plaintiff’s claims against defendant Morad Nasher doing business as City Stars 11 || Smoke Shop be dismissed. 12 2. The court enter judgment against defendant Nasher in the amount of $5,000. 13 3. Plaintiff’s request for cost be denied without prejudice to filing a motion under Local 14 | Rules 292. 15 4. The Clerk of Court be directed to close this case. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 18 | after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 || objections shall be served and filed within fourteen days after service of the objections. The 22 || parties are advised that failure to file objections within the specified time may waive the right to 23 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 24 | v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 2) | ITIS SO ORDERED.
27 || Dated: _ March 13, 2024 Virsrnne WOXnee □□ JEREMY D. PE SON 28 UNITED STATES MAGISTRATE JUDGE