Craters & Freighters v. Daisychain Enterprises et al

Filing 137

ORDER by Judge Claudia Wilken RE SANCTIONS. (denying 131 Motion to Strike ; denying as moot 132 Motion to Appear by Telephone) (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 4/9/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 09-04531 CW
CRATERS & FREIGHTERS,
Plaintiff,

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United States District Court
For the Northern District of California

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ORDER RE: SANCTIONS

v.
DAISYCHAIN ENTERPRISES, dba
FREIGHT & CRATE; CATHY BENZ; and
FRED BENZ.
Defendants.
________________________________/

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On March 5, 2014, Plaintiff Craters & Freighters moved for an

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order to show cause why Defendants Cathy Benz and Fred Benz should

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not be held in civil and criminal contempt for violating the

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permanent injunction entered by this Court on May 5, 2010.

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Plaintiff asserts that Defendants are using Plaintiff’s

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trademarked name “to advertise its products.”

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the Court entered an order to show cause why Defendants should not

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be held in contempt.

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show cause1 and Plaintiff filed a reply.

On March 12, 2014,

Defendants filed a response to the order to
Having considered the

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Plaintiff has filed a motion to strike Defendants’ response
on two grounds. Plaintiff asserts that the response was not
timely filed. Plaintiff further argues that Defendants’ response
violates Federal Rule of Civil Procedure 11 because it is
“disingenuous.” Pro se Defendants’ response was filed three days
after the deadline and Plaintiff has failed to make a showing of
any Rule 11 violation. Accordingly, the Court DENIES the motion
to strike. Docket No. 131.

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parties’ papers and the record in this case, the Court declines to

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sanction Defendants.

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LEGAL STANDARD
A district court has the inherent authority to enforce

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compliance with its orders through a civil contempt proceeding.

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Int’l Union, UMWA v. Bagwell, 512 U.S. 821, 827-28 (1994).

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standard for finding a party in civil contempt is well settled:

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The moving party has the burden of showing by clear and convincing

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evidence that the [non-moving party] violated a specific and

“The

United States District Court
For the Northern District of California

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definite order of the court.”

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F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v. City & County of

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San Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 1992)).

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contempt “need not be willful, and there is no good faith

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exception to the requirement of obedience to a court order.”

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re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d

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693, 695 (9th Cir. 1993).

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contempt if his action appears to be based on a good faith and

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reasonable interpretation of the court’s order.”

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formatting and quotation marks omitted).

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compliance’ with the court order is a defense to civil contempt,

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and is not vitiated by ‘a few technical violations’ where every

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reasonable effort has been made to comply.”

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Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 891

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(9th Cir. 1982)).

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FTC v. Affordable Media, LLC, 179

The

In

“But a person should not be held in

Id. (internal

“‘Substantial

Id. (citing Vertex

DISCUSSION

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Plaintiff submits evidence that an internet search for

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“craters and freighters” provided results that included “Craters

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And Freighters - Domestic & Int’l Freight - wrapitexpress.com,”
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which linked to www.wrapitexpress.com, the website for Wrapit

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Express.

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evidence that a search for “craters & freighters” provided results

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that included “Freighters And Craters - Domestic & Int’l Freight -

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wrapitexpress.com,” which also led to www.wrapitexpress.com.

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Ritchie Supp. Dec., Ex. A.

Plaintiff also submits

The permanent injunction prohibits the use of “Freight &

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Crate” and the use of “the registered trademark ‘Craters &

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Freighters’ for any purpose whatsoever.”

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“Freighters And Craters” is an infringing use of Plaintiff’s

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United States District Court
For the Northern District of California

Id.

Docket No. 104.

registered trademark, “Craters & Freighters.”

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Plaintiff alleges that Defendants Cathy Benz and Fred Benz

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are “owners and operators” of Wrapit Express.

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contention, Plaintiff submits evidence that Defendants Cathy Benz

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and Fred Benz are listed as the Terminal Manager and Facilities

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Manager, respectively, on the Wrapit Express website. Schmitz

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Supp. Decl., Ex. C.

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not owners of Wrapit Express, although they do admit that as

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employees, they “are responsible for the advertising of WrapIt

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Express Ltd.”

In support of this

Defendants counter that they are employees,

Defendants’ Dec. ¶ 5.

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Defendants also represent that they did not know about the

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infringing search results, which they assert were the result of

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“optimization” of their Google AdWords account.

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further assert that they have “since disabled the offending

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programming and sincerely apologize for any confusion.”

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10.

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suggests that Defendants are responsible for the content of their

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AdWords results on Google and admonishes Defendants to ensure that

Defendants

Id. at ¶

The Court notes that the exhibit to Defendants’ declaration

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all future advertisements comply with the permanent injunction.

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Plaintiff makes much of the fact that it attempted to contact

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Defendants regarding the infringing search results prior to filing

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the motion for an order to show cause.

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that it sent all communications to an address in Windsor,

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California, not the address for service listed for Defendants on

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the Case Management/Electronic Case Filing (CM/ECF) system.

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Indeed, even after Defendants noted that the motion for an order

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to show cause was served at the incorrect address, Plaintiff

However, Plaintiff admits

United States District Court
For the Northern District of California

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served its reply at that same address.

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Plaintiff that it must send all communications, including cease

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and desist letters and court filings, to the address for service

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listed on CM/ECF.

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they are complying with the injunction, Plaintiff should make good

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faith efforts to communicate with Defendants if they discover any

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infringing activity.

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Defendants at their addresses for service, as well as other known

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addresses.

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The Court admonishes

While Defendants have a duty to ensure that

These good faith efforts include contacting

Defendants must ensure that their addresses for service are

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kept up to date on CM/ECF.

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filer and is currently receiving electronic notifications of all

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filings.

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Ms. Benz.

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Ms. Benz at the address for service listed on CM/ECF.

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Mr. Benz is approved as an electronic-

However, as a non-attorney, Mr. Benz cannot represent
Accordingly, all documents must be manually served on

CONCLUSION
For the foregoing reasons, the Court declines to issue
sanctions against Defendants and DENIES Plaintiff’s motion to

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strike.

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telephone is DENIED as moot.

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IT IS SO ORDERED.

Docket No. 131.

Plaintiff’s motion to appear by
Docket No. 132.

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Dated: 4/9/14

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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