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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GIBSON, DUNN & CRUTCHER LLP
CHRISTOPHER D. DUSSEAULT (SBN 177557)
[e-mail]
PERLETTE MICHÈLE JURA (SBN 242332)
[e-mail]
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: [phone]
Facsimile: 213.229.7520
[e-mail]
Attorneys for Plaintiff
CrossFit, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CROSSFIT, INC., a Delaware corporation,

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Plaintiff,

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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,

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Defendants.

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WHEREAS, this action having been commenced by Plaintiff CrossFit, Inc. (“Plaintiff” or

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“CrossFit”) on February 14, 2014 by the filing of the Summons and Complaint (ECF No. 1) against

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Defendant Andres Del Cueto Davalos (“Del Cueto”) and Alfa Extreme Fitness S.A. de C.V. (“Alfa

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Extreme Fitness”) (collectively, “Defendants”)1 under the Lanham Act, 15 U.S.C. § 1051, et seq. (the

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“Lanham Act”) and the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), and

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California law, for preliminary and permanent equitable relief, monetary damages, forfeiture of

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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

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infringing domain names, costs, and attorney fees for Defendants’ unauthorized use of Plaintiff’s

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federally registered trademark CROSSFIT name (the “CROSSFIT mark”);

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WHEREAS, Del Cueto was duly served with copies of the Summons and Complaint with

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exhibits on January 28, 2016, as set forth in the Certificate of Service, filed on May 11, 2016 (ECF

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No. 32);

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WHEREAS, Del Cueto has not answered or otherwise responded to the Complaint and the
deadline for answering has expired;

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WHEREAS, Del Cueto has failed to otherwise respond or oppose the relief requested therein;

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WHEREAS, Plaintiff requested that the Clerk of Court enter default in this matter against Del

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Cueto on September 20, 2016, on the ground that Del Cueto has failed to appear or otherwise respond

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to Plaintiff’s Complaint within the time prescribed by the Federal Rules of Civil Procedure;

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WHEREAS, Del Cueto’s default was noted by the Clerk’s Certificate of Default, entered on
September 21, 2016 (ECF No. 39);

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WHEREAS, Plaintiff filed a Motion for Entry of Default Judgment as to Defendant Andres

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Del Cueto Davalos (the “Motion for Default Judgment”) on December 22, 2016 in the above-

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captioned matter;

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WHEREAS, Plaintiff’s Complaint made clear that Plaintiff would seek the relief provided
herein, including:

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(a) permanent injunctive relief;

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(b) forfeiture of infringing domain names;

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(c) monetary damages, including statutory damages pursuant to the Lanham Act; and

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(d) costs and attorney fees;

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WHEREAS, Plaintiff gave notice of the Motion for Default Judgment and accompanying

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papers and exhibits via email to Del Cueto and to Richard S. Mandaro Esq. of Amster, Rothstein &

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Ebenstein LLP on December 22, 2016;

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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:
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[PROPOSED] DEFAULT JUDGMENT-- CASE NO. 5:14-CV-00725-BLF

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That Plaintiff’s Motion is hereby GRANTED;

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That judgment is hereby entered against Del Cueto and in favor of Plaintiff;

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That Del Cueto and all persons acting in concert or participation with Del Cueto are

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permanently enjoined from:

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a.

Using CROSSFIT, or any variant thereof, or any confusingly similar marks or

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taglines, in connection with the advertising, offering, or promotion of any

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product or service;

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b.

Engaging in any acts of infringement of the CROSSFIT mark;

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c.

Using CROSSFIT, or any variant thereof, or any confusingly similar marks or

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taglines, as a trademark, trade name, service mark, tagline, domain name, or

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for any other purpose; and

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d.

Committing any other acts calculated or likely to cause consumer confusion or

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mistake in the mind of the public by causing consumers, purchasers or

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investors to believe that the products or services promoted, offered, or

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sponsored by Del Cueto come from CrossFit, or are sponsored or approved by,

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or connected with, or warranted or guaranteed by CrossFit.

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4.

That Del Cueto and all persons acting in concert or participation with Del Cueto are to

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cooperate in forfeiting and relinquishing all rights in, and transferring to Plaintiff, the following

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domain names, as well as all other “Crossfit” domain names that Del Cueto may use or register,

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including infringing variations thereof (collectively, the “Infringing Domain Names”):

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a.

www.crossfitalfa.com

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b.

www.crossfitbeta.com

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5.

That the domain registrar is authorized to transfer the Infringing Domain Names set

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forth in paragraph 4 above to Plaintiff at Plaintiff’s request if Del Cueto fails to do so within thirty (3)

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days of entry of default judgment;

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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);

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Gibson, Dunn &
Crutcher LLP

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[PROPOSED] DEFAULT JUDGMENT-- CASE NO. 5:14-CV-00725-BLF

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That Del Cueto shall pay Plaintiff’s attorney’s fees and litigation costs incurred in this

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action, pursuant to 15 U.S.C. § 1117(a). The Court hereby directs Plaintiff to submit a bill of costs

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and schedule of attorney’s fees to this Court so that the amount of the award can be determined by the

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Court; and

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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:
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File a motion to seek appropriate relief from this Court in order to enforce this

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Default Judgment or any outstanding obligations to comply with the discovery

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provisions of this Court’s prior Orders; or

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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.

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IT IS SO ORDERED AND JUDGMENT SO GRANTED

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Dated: ________________, 201

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_______________________________________
The Honorable Beth Labson Freeman
UNITED STATES DISTRICT COURT JUDGE

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Gibson, Dunn &
Crutcher LLP

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[PROPOSED] DEFAULT JUDGMENT-- CASE NO. 5:14-CV-00725-BLF