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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 No. C 09-04531 CW CRATERS & FREIGHTERS, Plaintiff, 6 7 8 9 v. DAISYCHAIN ENTERPRISES, dba FREIGHT & CRATE; CATHY BENZ; and FRED BENZ. Defendants. United States District Court For the Northern District of California 10 11 12 ORDER GRANTING PLAINTIFF’S MOTION FOR CONTEMPT SANCTIONS ________________________________/ Plaintiff Craters & Freighters moves for contempt sanctions 13 against Defendants Cathy Benz and Fred Benz. 14 both motions. 15 argument, Court grants the motions. Defendants oppose After considering the parties’ submissions and oral 16 BACKGROUND 17 On May 5, 2010, the Court entered a permanent injunction 18 prohibiting Defendants from using the infringing mark “Freight & 19 Crate.” 20 the use of the mark “in conjunction with any web-based 21 advertisement.” Docket No. 104. The injunction specifically prohibited Id. 22 On March 5, 2014, Plaintiff Craters & Freighters moved for an 23 order to show cause why Defendants Cathy Benz and Fred Benz should 24 not be held in civil and criminal contempt for violating the 25 permanent injunction entered by this Court on May 5, 2010. 26 Plaintiff asserted that Defendants were using Plaintiff’s 27 trademarked name “to advertise its products.” 28 Specifically, Plaintiff presented evidence of internet search Docket No. 126. 1 results that included infringement. 2 show cause why Defendants should not be held in contempt. 3 No. 127. 4 any infringement was inadvertent and they had “since disabled” the 5 advertising program that caused the infringing internet search 6 results. 7 impose sanctions, but admonished Defendants of their duty to 8 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 10 United States District Court For the Northern District of California 9 order to show cause why Defendants should not be held in civil and 11 criminal contempt for violating the Court’s injunction. 12 No. 138. 13 April 10, 2014, the day after the Court entered its order 14 declining to impose sanctions, an internet search for “wrap it 15 express” produced results that included “WrapIt Express Freight & 16 Crate,” which linked to the WrapIt Express website, “Wrapit 17 express freight crate,” which linked to a yellowpages.com 18 advertisement for WrapIt Express and “Wrapit Express Crate, 19 Freight and Logistics,” which linked to the Facebook page for 20 Wrapit Express. 21 that it repeated the internet search on April 11, 12, 13 and 14 22 and obtained the same or similar results. 23 they “are responsible for the advertising of WrapIt Express Ltd.” 24 Docket No. 134 ¶ 5. 25 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 26 cause why they should not be held in contempt for failure to 27 comply with the permanent injunction. 28 2 1 2 3 DISCUSSION I. Contempt A district court has the inherent authority to enforce 4 compliance with its orders through a civil contempt proceeding. 5 Int’l Union, UMWA v. Bagwell, 512 U.S. 821, 827–28 (1994). 6 standard for finding a party in civil contempt is well settled: 7 The moving party has the burden of showing by clear and convincing 8 evidence that the [non-moving party] violated a specific and 9 definite order of the court.” “The FTC v. Affordable Media, LLC, 179 United States District Court For the Northern District of California 10 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v. City & County of 11 San Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 1992)). 12 contempt “need not be willful, and there is no good faith 13 exception to the requirement of obedience to a court order.” 14 re Dual–Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 15 693, 695 (9th Cir. 1993). 16 contempt if his action appears to be based on a good faith and 17 reasonable interpretation of the court’s order.” 18 formatting and quotations omitted). 19 with the court order is a defense to civil contempt, and is not 20 vitiated by ‘a few technical violations’ where every reasonable 21 effort has been made to comply.” 22 Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 891 (9th Cir. 23 1982)). 24 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 25 to show cause, Plaintiff has submitted evidence of multiple 26 infringing internet search results for WrapitExpress. 27 admit that they “are responsible for the advertising of WrapIt 28 Express Ltd.” Docket No. 134 ¶ 5. 3 Defendants Some of those infringing 1 results were discovered on April 10, 2014, just one day after the 2 Court declined to issue sanctions. 3 Defendants do not dispute that the search results violate the 4 permanent injunction. 5 their best to comply and are having a difficult time communicating 6 with Google. 7 one of the search results, a “Google Place Ad,” requires the 8 company seeking the advertisement to “claim” the words they want 9 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 10 this case, the words on the advertisement discovered by Plaintiff 11 were “Wrapit Exptress Freight & Crate.” 12 violates the permanent injunction. 13 This advertisement Thus, because Defendants have failed to show that they 14 substantially complied with the May 2010 injunction, the Court 15 holds them in contempt. 16 II. 17 Sanctions Civil contempt sanctions are “characterized by the court’s 18 desire to compel obedience to a court order, or to compensate the 19 contemnor’s adversary for the injuries which result from the 20 noncompliance.” 21 F.2d 770, 778 (9th Cir. 1983) (citations omitted). 22 sanctions are typically “designed to compel future compliance with 23 a court order” and should be made “avoidable through obedience.” 24 Int’l Union, 512 U.S. at 827. 25 Falstaff Brewing Corp. v. Miller Brewing Co., 702 As such, these Accordingly, the Court orders Defendants to comply with the 26 Permanent Injunction. 27 Plaintiff produces evidence of infringing internet advertisements, If at any time after May 21, 2014, 28 4 1 Defendants will be required to pay $1,000 per day that such 2 advertisements are found. 3 III. Attorneys’ Fees and Costs 4 The Court further orders Defendants to pay Plaintiff’s 5 reasonable attorneys’ fees and costs expended in pursuing the 6 March 5, 2014 and April 14, 2014 motions for order to show cause. 7 Within ten days of the date of this order, Plaintiff is directed 8 to submit its attorneys’ billing records and hourly rates. 9 five days thereafter, Defendants may submit a response of no more Within United States District Court For the Northern District of California 10 than five pages, addressing any dispute with the amount of 11 Plaintiff’s request for fees. 12 response, Plaintiff may file a reply of no more than three pages. 13 14 Within five days of Defendants’ CONCLUSION For the reasons set forth above, Plaintiff’s motion for 15 contempt sanctions is GRANTED. 16 in contempt for failing to comply with the May 2010 permanent 17 injunction. Defendants are directed to ensure immediate 18 compliance. Failure to do so will be considered further contempt 19 and result in coercive sanctions of $1,000 per day that any 20 infringing internet advertisements are found. 21 Defendants will be ordered to pay Plaintiff’s reasonable 22 attorneys’ fees and costs expended in pursuing the March 5, 2014 23 and April 14, 2014 motions for order to show cause. 24 The Court hereby holds Defendants In addition, IT IS SO ORDERED. 25 26 27 Dated: 5/22/2014 CLAUDIA WILKEN United States District Judge 28 5

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