Crossfit, Inc. v. Del Cueto Davalos et al

Filing 46

DEFAULT JUDGMENT in favor of Crossfit, Inc. against Andres Del Cueto Davalos. Signed by Judge Beth Labson Freeman on 2/24/2017. (blflc1S, COURT STAFF) (Filed on 2/24/2017)

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1 2 3 4 5 6 7 GIBSON, DUNN & CRUTCHER LLP CHRISTOPHER D. DUSSEAULT (SBN 177557) PERLETTE MICHÈLE JURA (SBN 242332) 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: 213.229.7000 Facsimile: 213.229.7520 Attorneys for Plaintiff CrossFit, Inc. 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 CROSSFIT, INC., a Delaware corporation, 13 Plaintiff, 14 15 16 v. CASE NO. 5:14-cv-00725-BLF Hon. Beth Labson Freeman [PROPOSED] DEFAULT JUDGMENT ANDRES DEL CUETO DAVALOS; ALFA EXTREME FITNESS S.A. DE C.V.; DOES 110, INCLUSIVE, 17 Defendants. 18 19 20 WHEREAS, this action having been commenced by Plaintiff CrossFit, Inc. (“Plaintiff” or 21 “CrossFit”) on February 14, 2014 by the filing of the Summons and Complaint (ECF No. 1) against 22 Defendant Andres Del Cueto Davalos (“Del Cueto”) and Alfa Extreme Fitness S.A. de C.V. (“Alfa 23 Extreme Fitness”) (collectively, “Defendants”)1 under the Lanham Act, 15 U.S.C. § 1051, et seq. (the 24 “Lanham Act”) and the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), and 25 California law, for preliminary and permanent equitable relief, monetary damages, forfeiture of 26 27 28 1 CrossFit voluntarily dismissed Defendant Alfa Extreme Fitness without prejudice, concurrently with the filing of its Motion for Entry of Default Judgment as to Defendant Del Cueto, and therefore pursued default judgment solely with respect to Defendant Del Cueto. Gibson, Dunn & Crutcher LLP [PROPOSED] DEFAULT JUDGMENT-- CASE NO. 5:14-CV-00725-BLF 1 infringing domain names, costs, and attorney fees for Defendants’ unauthorized use of Plaintiff’s 2 federally registered trademark CROSSFIT name (the “CROSSFIT mark”); 3 WHEREAS, Del Cueto was duly served with copies of the Summons and Complaint with 4 exhibits on January 28, 2016, as set forth in the Certificate of Service, filed on May 11, 2016 (ECF 5 No. 32); 6 7 WHEREAS, Del Cueto has not answered or otherwise responded to the Complaint and the deadline for answering has expired; 8 WHEREAS, Del Cueto has failed to otherwise respond or oppose the relief requested therein; 9 WHEREAS, Plaintiff requested that the Clerk of Court enter default in this matter against Del 10 Cueto on September 20, 2016, on the ground that Del Cueto has failed to appear or otherwise respond 11 to Plaintiff’s Complaint within the time prescribed by the Federal Rules of Civil Procedure; 12 13 WHEREAS, Del Cueto’s default was noted by the Clerk’s Certificate of Default, entered on September 21, 2016 (ECF No. 39); 14 WHEREAS, Plaintiff filed a Motion for Entry of Default Judgment as to Defendant Andres 15 Del Cueto Davalos (the “Motion for Default Judgment”) on December 22, 2016 in the above- 16 captioned matter; 17 18 WHEREAS, Plaintiff’s Complaint made clear that Plaintiff would seek the relief provided herein, including: 19 (a) permanent injunctive relief; 20 (b) forfeiture of infringing domain names; 21 (c) monetary damages, including statutory damages pursuant to the Lanham Act; and 22 (d) costs and attorney fees; 23 WHEREAS, Plaintiff gave notice of the Motion for Default Judgment and accompanying 24 papers and exhibits via email to Del Cueto and to Richard S. Mandaro Esq. of Amster, Rothstein & 25 Ebenstein LLP on December 22, 2016; 26 27 28 Gibson, Dunn & Crutcher LLP WHEREAS, Del Cueto has not opposed or otherwise objected to Plaintiff’s Motion for Default Judgment; NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED and DECREED: 2 [PROPOSED] DEFAULT JUDGMENT-- CASE NO. 5:14-CV-00725-BLF 1 1. That Plaintiff’s Motion is hereby GRANTED; 2 2. That judgment is hereby entered against Del Cueto and in favor of Plaintiff; 3 3. That Del Cueto and all persons acting in concert or participation with Del Cueto are 4 permanently enjoined from: 5 a. Using CROSSFIT, or any variant thereof, or any confusingly similar marks or 6 taglines, in connection with the advertising, offering, or promotion of any 7 product or service; 8 b. Engaging in any acts of infringement of the CROSSFIT mark; 9 c. Using CROSSFIT, or any variant thereof, or any confusingly similar marks or 10 taglines, as a trademark, trade name, service mark, tagline, domain name, or 11 for any other purpose; and 12 d. Committing any other acts calculated or likely to cause consumer confusion or 13 mistake in the mind of the public by causing consumers, purchasers or 14 investors to believe that the products or services promoted, offered, or 15 sponsored by Del Cueto come from CrossFit, or are sponsored or approved by, 16 or connected with, or warranted or guaranteed by CrossFit. 17 4. That Del Cueto and all persons acting in concert or participation with Del Cueto are to 18 cooperate in forfeiting and relinquishing all rights in, and transferring to Plaintiff, the following 19 domain names, as well as all other “Crossfit” domain names that Del Cueto may use or register, 20 including infringing variations thereof (collectively, the “Infringing Domain Names”): 21 a. 22 b. 23 5. That the domain registrar is authorized to transfer the Infringing Domain Names set 24 forth in paragraph 4 above to Plaintiff at Plaintiff’s request if Del Cueto fails to do so within thirty (3) 25 days of entry of default judgment; 26 27 6. That Del Cueto shall pay Plaintiff $200,000 in statutory damages ($100,000 per Infringing Domain Name), pursuant to 15 U.S.C. § 1117(d); 28 Gibson, Dunn & Crutcher LLP 3 [PROPOSED] DEFAULT JUDGMENT-- CASE NO. 5:14-CV-00725-BLF 1 7. That Del Cueto shall pay Plaintiff’s attorney’s fees and litigation costs incurred in this 2 action, pursuant to 15 U.S.C. § 1117(a). The Court hereby directs Plaintiff to submit a bill of costs 3 and schedule of attorney’s fees to this Court so that the amount of the award can be determined by the 4 Court; and 5 6 7 8. That the Clerk of Court shall close the above-captioned matter and remove this case from the docket, without prejudice to Plaintiff’s ability to: a. File a motion to seek appropriate relief from this Court in order to enforce this 8 Default Judgment or any outstanding obligations to comply with the discovery 9 provisions of this Court’s prior Orders; or 10 11 b. Reopen this matter in the event it is necessary to pursue sanctions for any violations of this Default Judgment or any further orders of this Court. 12 13 IT IS SO ORDERED AND JUDGMENT SO GRANTED 14 15 Dated: ________________, 201 16 17 18 _______________________________________ The Honorable Beth Labson Freeman UNITED STATES DISTRICT COURT JUDGE 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 4 [PROPOSED] DEFAULT JUDGMENT-- CASE NO. 5:14-CV-00725-BLF

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