BMW of North America LLC et al v. K VIP Auto Body et al

Filing 57

ORDER adopting Report and Recommendation 55 ; granting 44 Motion for Default Judgment. THE CLERK SHALL CLOSE THIS FILE. Signed by Judge Edward J. Davila on 5/30/2018.(ejdlc3S, COURT STAFF) (Filed on 5/30/2018) Modified on 5/30/2018 (ejdlc1S, COURT STAFF).

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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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BMW OF NORTH AMERICA LLC, et al.,

Case No. 5:17-cv-00543-EJD

Plaintiffs,
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ORDER ADOPTING REPORT AND
RECOMMENDATION; DEFAULT
JUDGMENT

v.
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K VIP AUTO BODY, et al.,

Re: Dkt. No. 55

United States District Court
Northern District of California

Defendants.
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Presently before the Court is Magistrate Judge Kim’s Report and Recommendation to

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dismiss Defendant K VIP Auto Body and to enter default judgment against Guo Yong Chen,

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Jingjing Deng a/k/a Tina Deng, Shao Chun Chen, and Fen Deng a/k/a Andy Deng (collectively

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referred to as “Individual Defendants”) (Dkt. No. 55). To date, no objection to the Report and

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Recommendation has been filed. Having conducted a do novo review of the Report and

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Recommendation pursuant to 28 U.S.C. §636 and Fed.R.Civ.P. 72(b), the Court ADOPTS the

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Report and Recommendation (Dkt. No. 55) in its entirety and orders as follows:

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1. Defendant K VIP Auto Body is DISMISSED from this action.

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2. Plaintiffs’ motion for default judgment against the Individual Defendants is

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GRANTED. Plaintiffs are AWARDED $200,000 in statutory damages pursuant to 15 U.S.C. §

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1117(c). Further, pursuant to 15 U.S.C. § 1116(a), the Individual Defendants and their agents,

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representatives, and all persons acting in concert with them, are PERMANENTLY ENJOINED

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from:

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a. The import, export, manufacture, reproduction, assembly, use, acquisition, purchase,

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offer, sale, transfer, brokerage, consignment, distribution, shipment, licensing, development,

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Case No.: 5:17-cv-00543-EJD
ORDER ADOPTING REPORT AND RECOMMENDATION; DEFAULT JUDGMENT
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display, delivery, marketing, advertising or promotion of any counterfeit products bearing the

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BMW®, M2®, M3®, M5®, M6®, MINI®, MINI COOPER®, the BMW® blue/white/black

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circle colored mark, the BMW® white circle mark, the BMW® black circle mark, the MINI®

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wing emblem, the ///M® colored striping mark, the ///M® non-colored striping mark, and the

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stylized S® mark, specifically including but not limited to any air caps, valve stem caps, badges,

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key chains, automobile parts or accessories, and any other unauthorized merchandise bearing any

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of Plaintiffs’ Trademarks (including any non-genuine reproduction, counterfeit, copy or colorable

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imitation thereof);

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b. The import, export, manufacture, reproduction, assembly, use, acquisition, purchase,
offer, sale, transfer, brokerage, consignment, distribution, shipment, licensing, development,

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United States District Court
Northern District of California

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display, delivery, marketing, advertising or promotion of any counterfeit products bearing the

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BMW®, M2®, M3®, M5®, M6®, MINI®, MINI COOPER®, the BMW® blue/white/black

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circle colored mark, the BMW® white circle mark, the BMW® black circle mark, the MINI®

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wing emblem, the ///M® colored striping mark, the ///M® non-colored striping mark, and the

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stylized S® mark, specifically including but not limited to any air caps, valve stem caps, badges,

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key chains, automobile parts or accessories, and any other product which infringes or dilutes any

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of Plaintiffs’ Trademarks, trade name, and/or trade dress, including but not limited to any of

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Plaintiffs’ Trademarks;

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c. The unauthorized use, in any manner whatsoever, of any of Plaintiffs’ Trademarks, trade

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names and/or trade dress, including but not limited to BMW®, M2®, M3®, M5®, M6®, MINI®,

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MINI COOPER®, the BMW® blue/white/black circle colored mark, the BMW® white circle

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mark, the BMW® black circle mark, the MINI® wing emblem, the ///M® colored striping mark,

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the ///M® non-colored striping mark, and the stylized S® mark, any variants, colorable imitations,

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translations and/or simulations thereof, and/or any items that are confusingly similar thereto,

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including specifically:

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i. on or in conjunction with any product or service; and

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ii. on or in conjunction with any advertising, promotional materials, labels,

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Case No.: 5:17-cv-00543-EJD
ORDER ADOPTING REPORT AND RECOMMENDATION; DEFAULT JUDGMENT
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hangtags, packaging, or containers;
d. The use of any trademark, trade name, or trade dress that falsely represents, or is likely

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to confuse, mislead or deceive purchasers, customers, or members of the public to believe that

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unauthorized product imported, exported, manufactured, reproduced, distributed, assembled,

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acquired, purchased, offered, sold, transferred, brokered, consigned, distributed, stored, shipped,

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marketed, advertised and/or promoted by Defendants originate from Plaintiffs, or that said

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merchandise has been sponsored, approved, licensed by, or associated with Plaintiffs or is, in

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some way, connected or affiliated with Plaintiffs;

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e. Engaging in any conduct that falsely represents that, or is likely to confuse, mislead, or
deceive purchasers, customers, or members of the public to believe that Defendants are connected

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United States District Court
Northern District of California

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with, or are in some way sponsored by or affiliated with Plaintiffs, purchases product from or

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otherwise has a business relationship with Plaintiffs; and/or

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f. Affixing, applying, annexing, or using in connection with the manufacture, distribution,

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advertising, sale, and/or offering for sale or other use of any goods, a false description or

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representation, including words or symbols, tending to falsely describe or represent such goods as

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being those of Plaintiffs.

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IT IS SO ORDERED.

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Dated: May 30, 2018
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:17-cv-00543-EJD
ORDER ADOPTING REPORT AND RECOMMENDATION; DEFAULT JUDGMENT
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