Slep-Tone Entertainment Corporation v. Lewis et al

Filing 85

DEFAULT FINAL JUDGMENT AND PERMANENT INJUNCTION AS TO DEFENDANTS ANTHONY GRIFFIN, MATHEW GRIFFIN, and STARZ N BARZ KARAOKE. Order granting in part 84 Plaintiff's Motion for Default Judgment. (See Order for details). Clerk shall close the case. Signed by Judge James S. Moody, Jr on 4/5/2012. (LN)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SLEP-TONE ENTERTAINMENT
CORPORATION,
Plaintiff,

CASE NO.
8:11-cv-1595-T-30EAJ

v.
DAN LEWIS, et al.,
Defendants.

DEFAULT FINAL JUDGMENT AND PERMANENT INJUNCTION AS TO
DEFENDANTS ANTHONY GRIFFIN, MATHEW GRIFFIN, AND STARZ
N BARZ KARAOKE
This matter is before the Court upon the Motion (Doc. 84) of Plaintiff SlepTone Entertainment Corporation (“Slep-Tone”) for default judgment against
Defendants Anthony Griffin (“Griffin”), Mathew Griffin, and Starz N Barz
Karaoke (together, “the Defaulting Defendants”).

None of the Defaulting

Defendants have appeared in this case. For the reasons given below, and having
considered the materials supplied and cited by Plaintiff in support of its motion, the
Court finds that default judgment is appropriate, and the Plaintiff’s motion will
accordingly be GRANTED IN PART.

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FINDINGS OF FACT
1.

On April 2, 2010, Slep-Tone commenced this action against the

Defaulting Defendants and others as Case No. 5:10cv71 in the Northern District of
Florida. (Doc. 1.) The Complaint alleges, in pertinent part, that the Defaulting
Defendants engaged in trademark infringement involving counterfeiting, federal
unfair competition, and violations of the Florida Deceptive and Unfair Trade
Practices Act (“FDUPTA”), Fla. Stat. § 501.211.
2.

On December 21, 2011, the Clerk entered defaults as to each of the

Defaulting Defendants.
3.

Slep-Tone is the owner of U.S. Trademark Registration No.

1,923,448, for SOUND CHOICE®, and of U.S. Trademark Registration No.
2,000,725, for a display trademark SOUND CHOICE & Design® (“the Marks”).
4.

Slep-Tone has consistently used the ® symbol to denote the

registration of the Marks and thereby to give notice to the public that the Marks are
federally registered.
5.

The Defaulting Defendants have used a reproduction, counterfeit, or

copy of the Marks in connection with their providing karaoke services, by
displaying that reproduction, counterfeit, or copy during the provision of their
services.
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6.

None of the Defaulting Defendants had a license to create digitized

copies of the Plaintiff’s karaoke discs or of the music tracks contained thereon.
7.

An unauthorized digitized copy of the Plaintiff’s karaoke discs or

music tracks is a counterfeit.
8.

The Defaulting Defendants did not have a license to use counterfeit

tracks in connection with their provision of karaoke services. The Defaulting
Defendants’ unauthorized use of counterfeits of the Marks is likely to cause
consumer confusion by deceiving their customers and/or patrons into believing that
the services are being provided with Slep-Tone’s authorization.
9.

Slep-Tone has been harmed by the Defaulting Defendants’ infringing

activities.
10.

The unauthorized copies of the Plaintiff’s karaoke tracks used by the

Defaulting Defendants have caused the Marks to be displayed at the Defaulting
Defendants’ karaoke shows without authorization.
11.

The marks so displayed are identical to the marks Slep-Tone has

federally registered.
12.

Plaintiff established that the individual Defaulting Defendants are not

in active military service, and accordingly there is no impediment to the imposition
of default judgment against any of them under the Servicemembers’ Civil Relief
Act.
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CONCLUSIONS OF LAW
1.

By virtue of their defaults in this matter, each of the Defaulting

Defendants are deemed to have admitted those facts alleged in the Complaint that
are material to Slep-Tone’s claims against them.
2.

By using counterfeit materials bearing the Marks to put on karaoke

shows and by displaying the Marks during the course of those shows, the
Defaulting Defendants have each committed acts that are likely to cause confusion
among consumers of their services as to the authorization, sponsorship, and
affiliation of their services with Slep-Tone. In particular, consumers who use the
Defaulting Defendants’ services are likely to believe, falsely, that they have made
use of genuine, authorized materials during the conduct of their respective
businesses.
3.

Accordingly,

the

Defaulting

Defendants’

activities

constitute

trademark infringement involving counterfeiting.
4.

The Defaulting Defendants’ same acts constitute a violation of § 43(a)

of the Trademark Act of 1946, as amended, in that the display of Slep-Tone’s
marks and the marks of other manufacturers whose materials who have been
similarly pirated constitutes a false designation of the origin of those materials.
5.

The Defaulting Defendants’ same acts further constitute a per se

violation of FDUTPA. See TracFone Wireless, Inc. v. Access Telecom, Inc., 642
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F. Supp. 2d 1354, 1365 (S.D. Fla. 2009) (“Engaging in trademark infringement is
an unfair and deceptive trade practice that violates” FDUTPA).
6.

Slep-Tone is entitled to a statutory damage award from each of the

Defaulting Defendants.
7.

Permanent injunctive relief against the Defaulting Defendants is

necessary to prevent continuing harm to Slep-Tone.
8.

An injunction forbidding the use of all unauthorized copies of karaoke

tracks, whether belonging to the Plaintiff or otherwise, is an appropriate remedy
for the federal unfair competition and FDUTPA violations and would be
appropriate to protect the rights of the Plaintiff, its legitimate downstream
customers, and the public at large.
In view of the foregoing Findings of Fact and Conclusions of Law, it is
accordingly ORDERED that the Motion of Plaintiff Slep-Tone Entertainment
Corporation for Default Final Judgment (Doc. 84) is hereby GRANTED in part.
It is therefore ORDERED and ADJUDGED as follows:
1. Pursuant to 15 U.S.C. § 1117, judgment is hereby entered in favor of
Plaintiff Slep-Tone and against Defendant Anthony Griffin for statutory
damages in the principal amount of $10,000, for which sum let execution
issue.

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2. Pursuant to 15 U.S.C. § 1117, judgment is hereby entered in favor of
Plaintiff Slep-Tone and against Defendant Mathew Griffin for statutory
damages in the principal amount of $10,000, for which sum let execution
issue.
3. Pursuant to 15 U.S.C. § 1117, judgment is hereby entered in favor of
Plaintiff Slep-Tone and against Defendant Starz N Barz Karaoke for
statutory damages in the principal amount of $10,000, for which sum let
execution issue.
4. Interest from the date of entry of this judgment shall accrue at the legal rate,
pursuant to 28 U.S.C. § 1961.
5. Each of the Defaulting Defendants, their agents and employees, and all
persons in active concert or participation with them and having knowledge
of this Order are hereby permanently ENJOINED (a) from using (including
making, copying, sharing, distributing, selling, or otherwise using, and
particularly including use to provide karaoke services), commercially or
otherwise, any karaoke accompaniment track that is marked with either the
mark in U.S. Trademark Registration No. 1,923,448, for SOUND
CHOICE®, or the mark in U.S. Trademark Registration No. 2,000,725, for a
display trademark SOUND CHOICE & Design®, without the prior, express
written permission of Slep-Tone or its successor-in-interest, if any, to the
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ownership of those marks, and (b) from making, copying, sharing,
distributing, selling, or otherwise using digitized copies of karaoke
accompaniment tracks, commercially or otherwise, which tracks are marked
with any mark or other designation belonging to any person from whom the
Defendant has not obtained written authorization from the owner thereof to
make, copy, share, distribute, sell, or otherwise use the digitized copy.
6. The Court retains jurisdiction for a period of one (1) year over this cause and
over the parties for the purposes of enforcing the foregoing relief and
entering all further post-judgment orders that are just and proper.
7. The Clerk of Court is directed to CLOSE this case.
DONE and ORDERED in Tampa, Florida on April 5, 2012.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2011\11-cv-1595.default fj injunction.rtf

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