Craters & Freighters v. Daisychain Enterprises et al
Filing
159
ORDER GRANTING PLAINTIFFS MOTION FOR CONTEMPT SANCTIONS. Signed by Judge Claudia Wilken on 5/22/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 5/22/2014)
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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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v.
DAISYCHAIN ENTERPRISES, dba
FREIGHT & CRATE; CATHY BENZ; and
FRED BENZ.
Defendants.
United States District Court
For the Northern District of California
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ORDER GRANTING
PLAINTIFF’S MOTION FOR
CONTEMPT SANCTIONS
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Plaintiff Craters & Freighters moves for contempt sanctions
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against Defendants Cathy Benz and Fred Benz.
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both motions.
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argument, Court grants the motions.
Defendants oppose
After considering the parties’ submissions and oral
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BACKGROUND
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On May 5, 2010, the Court entered a permanent injunction
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prohibiting Defendants from using the infringing mark “Freight &
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Crate.”
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the use of the mark “in conjunction with any web-based
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advertisement.”
Docket No. 104.
The injunction specifically prohibited
Id.
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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 asserted that Defendants were using Plaintiff’s
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trademarked name “to advertise its products.”
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Specifically, Plaintiff presented evidence of internet search
Docket No. 126.
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results that included infringement.
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show cause why Defendants should not be held in contempt.
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No. 127.
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any infringement was inadvertent and they had “since disabled” the
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advertising program that caused the infringing internet search
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results.
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impose sanctions, but admonished Defendants of their duty to
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comply with the injunction.
The Court issued an order to
Docket
On April 8, 2014, Defendants responded in writing that
Docket No. 133.
On April 9, 2014, the Court declined to
Docket No. 137.
On April 14, 2014, Plaintiff filed another motion for an
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United States District Court
For the Northern District of California
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order to show cause why Defendants should not be held in civil and
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criminal contempt for violating the Court’s injunction.
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No. 138.
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April 10, 2014, the day after the Court entered its order
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declining to impose sanctions, an internet search for “wrap it
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express” produced results that included “WrapIt Express Freight &
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Crate,” which linked to the WrapIt Express website, “Wrapit
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express freight crate,” which linked to a yellowpages.com
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advertisement for WrapIt Express and “Wrapit Express Crate,
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Freight and Logistics,” which linked to the Facebook page for
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Wrapit Express.
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that it repeated the internet search on April 11, 12, 13 and 14
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and obtained the same or similar results.
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they “are responsible for the advertising of WrapIt Express Ltd.”
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Docket No. 134 ¶ 5.
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Docket
Plaintiff submitted evidence that, on the morning of
Schmitz Dec., Ex. A.
Plaintiff submits evidence
Defendants admit that
The Court ordered Defendants to appear at a hearing to show
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cause why they should not be held in contempt for failure to
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comply with the permanent injunction.
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DISCUSSION
I.
Contempt
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
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definite order of the court.”
“The
FTC v. Affordable Media, LLC, 179
United States District Court
For the Northern District of California
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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 quotations omitted).
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with the court order is a defense to civil contempt, and is not
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vitiated by ‘a few technical violations’ where every reasonable
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effort has been made to comply.”
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Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 891 (9th Cir.
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1982)).
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The
In
“But a person should not be held in
Id. (internal
“‘Substantial compliance’
Id. (citing Vertex Distrib.,
As explained in the March 12, 2014 and April 25, 2014 orders
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to show cause, Plaintiff has submitted evidence of multiple
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infringing internet search results for WrapitExpress.
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admit that they “are responsible for the advertising of WrapIt
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Express Ltd.”
Docket No. 134 ¶ 5.
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Defendants
Some of those infringing
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results were discovered on April 10, 2014, just one day after the
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Court declined to issue sanctions.
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Defendants do not dispute that the search results violate the
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permanent injunction.
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their best to comply and are having a difficult time communicating
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with Google.
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one of the search results, a “Google Place Ad,” requires the
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company seeking the advertisement to “claim” the words they want
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included in the advertisement.
Instead, they argue that they are doing
However, Plaintiff presents evidence that at least
Docket No, 146, Ex. A ¶ 15.
In
United States District Court
For the Northern District of California
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this case, the words on the advertisement discovered by Plaintiff
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were “Wrapit Exptress Freight & Crate.”
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violates the permanent injunction.
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This advertisement
Thus, because Defendants have failed to show that they
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substantially complied with the May 2010 injunction, the Court
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holds them in contempt.
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II.
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Sanctions
Civil contempt sanctions are “characterized by the court’s
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desire to compel obedience to a court order, or to compensate the
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contemnor’s adversary for the injuries which result from the
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noncompliance.”
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F.2d 770, 778 (9th Cir. 1983) (citations omitted).
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sanctions are typically “designed to compel future compliance with
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a court order” and should be made “avoidable through obedience.”
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Int’l Union, 512 U.S. at 827.
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Falstaff Brewing Corp. v. Miller Brewing Co., 702
As such, these
Accordingly, the Court orders Defendants to comply with the
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Permanent Injunction.
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Plaintiff produces evidence of infringing internet advertisements,
If at any time after May 21, 2014,
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Defendants will be required to pay $1,000 per day that such
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advertisements are found.
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III. Attorneys’ Fees and Costs
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The Court further orders Defendants to pay Plaintiff’s
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reasonable attorneys’ fees and costs expended in pursuing the
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March 5, 2014 and April 14, 2014 motions for order to show cause.
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Within ten days of the date of this order, Plaintiff is directed
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to submit its attorneys’ billing records and hourly rates.
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five days thereafter, Defendants may submit a response of no more
Within
United States District Court
For the Northern District of California
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than five pages, addressing any dispute with the amount of
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Plaintiff’s request for fees.
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response, Plaintiff may file a reply of no more than three pages.
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Within five days of Defendants’
CONCLUSION
For the reasons set forth above, Plaintiff’s motion for
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contempt sanctions is GRANTED.
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in contempt for failing to comply with the May 2010 permanent
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injunction.
Defendants are directed to ensure immediate
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compliance.
Failure to do so will be considered further contempt
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and result in coercive sanctions of $1,000 per day that any
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infringing internet advertisements are found.
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Defendants will be ordered to pay Plaintiff’s reasonable
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attorneys’ fees and costs expended in pursuing the March 5, 2014
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and April 14, 2014 motions for order to show cause.
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The Court hereby holds Defendants
In addition,
IT IS SO ORDERED.
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Dated:
5/22/2014
CLAUDIA WILKEN
United States District Judge
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