Health & Sun Research, Inc. et al v. Designer Skin LLC
Filing
156
ORDER: Health & Sun's Motion for Permanent Injunction 144 is GRANTED as specified herein. Health & Sun's Motion for Attorneys' Fees and Enhanced Damages 145 is DENIED as to attorneys' fees, DENIED as to enhanced damages, and DENIED AS MOOT as to prejudgment interest. As to disgorgement, the Court directs Australian Gold to file a report of its post-verdict sales of PURPLE REIGN on or before June 27, 2014, as specified above. The parties have ten days from the filing of t hat report to file separate submissions regarding disgorgement or a joint resolution of the matter. The Court will issue a separate order after it receives this information from the parties. Australian Gold's Rule 59(e) Motion to Equitably Reduce Damages 146 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 6/19/2014. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HEALTH & SUN RESEARCH, INC.
d/b/a Kava Kava Intl. and
Vegas Tan,
Plaintiff,
v.
Case No. 8:12-cv-2319-T-33MAP
AUSTRALIAN GOLD, LLC,
Defendant,
_____________________________/
AUSTRALIAN GOLD, LLC,
Counter-Plaintiff,
v.
HEALTH & SUN RESEARCH, Inc.
d/b/a Kava Kava Intl. and
Vegas Tan,
Counter-Defendant.
_____________________________/
ORDER
This cause comes before the Court in consideration of
the following three Motions: (1) Plaintiff Health & Sun
Research, Inc.’s Motion for a Permanent Injunction (Doc. #
144), filed on April 3, 2014; (2) Plaintiff Health & Sun
Research, Inc.’s Motion for Attorneys’ Fees and Enhanced
Damages
(Doc.
Defendant
#
145),
Australian
filed
Gold,
on
LLC’s
April
Rule
3,
2014;
59(e)
and
Motion
(3)
to
Equitably Reduce Damages (Doc. # 146), filed on April 3, 2014.
Each motion is ripe for the Court’s review. This Court held
a hearing on the motions on June 13, 2014. For the reasons
stated at the hearing and for the reasons that follow, the
Court
grants
Health
&
Sun’s
request
for
a
permanent
injunction, denies Health & Sun’s request for attorneys’ fees
and enhanced damages, denies Health & Sun’s request for
prejudgment interest as moot, requires further information
from Australian Gold concerning post-verdict sales of the
infringing PURPLE REIGN product prior to deciding the issue
of disgorgement, and denies Australian Gold’s request to
equitably reduce damages.
I.
Background
On October 11, 2012, Health & Sun filed a Lanham Act
complaint against Designer Skin, LLC. (Doc. # 1). On April 2,
2013,
Health
&
Sun,
Designer
Skin,
and
its
affiliate
Australian Gold stipulated and jointly moved to substitute
Australian Gold for Designer Skin as Defendant and CounterClaimant. (Doc. # 35).
On January 17, 2014, after a four-day trial, the jury
entered its verdict in favor of Health & Sun with respect to
Health
&
Sun’s
PURPLE
RAIN
trademark
and
in
favor
of
Australian Gold with respect to Australian Gold’s ROYAL FLUSH
2
trademark. (Doc. # 109).
Among other relevant determinations, the jury found that
(1) Health & Sun “own[s] rights in the PURPLE RAIN trademark
that are entitled to protection;” (2) Health & Sun owns these
rights on a nationwide basis; (3) “Health & Sun used its
PURPLE RAIN trademark in commerce prior to the date of first
use of Australian Gold’s trademark in the geographic area(s)
where Health & Sun owns rights;” (4) “Australian Gold’s use
of its PURPLE REIGN trademark causes a likelihood of confusion
with Health & Sun’s PURPLE RAIN trademark in the geographic
area(s) where Health & Sun currently owns trademark rights;”
(5) “Health and Sun ceased using the ROYAL FLUSH trademark
with
the
intent
not
to
resume
its
use
in
one
or
more
geographic areas;” and (6) “Health & Sun’s resumption of use
of its ROYAL FLUSH trademark after Health & Sun abandoned its
ROYAL FLUSH trademark caused a likelihood of confusion with
Australian Gold’s ROYAL FLUSH trademark.” (Doc. # 109 at 12, 6, 8).
The jury awarded Australian Gold’s profits to Health &
Sun in the amount of $147,615 and Health & Sun’s profits to
Australian Gold in the amount of $2,285. (Id. at 2, 8). On
March 17, 2014, after the disposition of post-trial motions,
this Court entered its judgment in the amount of $147,615 to
3
Health & Sun and $2,285 to Australian Gold. (Doc. # 143).
At
this
juncture,
Health
&
Sun
seeks
an
award
of
attorneys’ fees in the approximate amount of $270,000, an
increase
in
the
jury’s
damages
award
from
$147,615
to
$367,663, a permanent injunction enjoining Australian Gold
from using the PURPLE RAIN trademark, and the disgorgement of
Australian Gold’s profits resulting from Australian Gold’s
post-verdict sales of PURPLE REIGN. Australian Gold seeks a
reduction in the jury’s damages award and opposes Health &
Sun’s Motion for attorneys’ fees and a permanent injunction.
II.
Analysis
A.
Health & Sun’s Motion for Permanent Injunction
Health & Sun requests a permanent injunction enjoining
Australian Gold from manufacturing, advertising, marketing
and/or selling any indoor tanning lotions that use, copy, or
misappropriate the PURPLE RAIN trademark. (Doc. # 144 at 1).
During the hearing held on June 13, 2014, Australian Gold
conceded that it continued selling the infringing PURPLE
REIGN product after the jury verdict was entered on January
17, 2014.
Before a court may grant a permanent injunction, a
plaintiff seeking a permanent injunction must satisfy the
following four-factor test: (1) that it has suffered an
4
irreparable injury; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that
injury;
(3)
that,
considering
the
balance
of
hardships
between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be
disserved
by
a
permanent
injunction.
eBay
Inc.
v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006). According to
the Supreme Court, “[t]he decision to grant or deny permanent
injunctive relief is an act of equitable discretion by the
district court.” Id.
Health & Sun claims irreparable injury based upon the
jury’s finding that Australian Gold’s use of PURPLE REIGN
causes a likelihood of confusion with Health & Sun’s PURPLE
RAIN trademark. Health & Sun also argues that remedies such
as monetary damages are inadequate because the loss of control
over reputation and goodwill associated with Health & Sun’s
trademarked goods is ongoing, impossible to quantify, and
causes
long-term
damage.
According
to
Health
&
Sun,
Australian Gold is unlikely to suffer substantial hardship
from shutting down its production of PURPLE REIGN and a
permanent injunction serves the public interest by preventing
confusion in the marketplace with respect to Health & Sun’s
PURPLE RAIN product.
5
Australian Gold responds that the issue is moot because
Australian Gold no longer sells PURPLE REIGN, the infringing
product, and has no future plans to resume doing so. (Doc. #
147
at
1-4).
continued
indicating
to
However,
sell
that
Australian
PURPLE
the
REIGN
issue
is
Gold
after
not
concedes
the
moot.
jury
that
it
verdict,
Nevertheless,
Australian Gold argues that Health & Sun’s injuries are
reparable by money and that Health & Sun has not shown actual
proof of irreparable injury or a likelihood of confusion
leading to irreparable injury. (Id. at 4-7).
Upon due consideration of the parties’ arguments, the
Court grants Health & Sun’s Motion for Permanent Injunction.
The Court finds that Health & Sun has demonstrated that an
irreparable injury exists because Australian Gold continued
to sell PURPLE REIGN after the jury entered its verdict on
January 17, 2014, thus causing a likelihood of confusion in
the marketplace and violating Health & Sun’s right to exclude
third parties from infringing upon Health & Sun’s protected
trademark.
The
Court
also
finds
that
monetary
damages
are
inadequate to compensate Health & Sun, despite Australian
Gold’s argument to the contrary, because Australian Gold
continued to sell PURPLE REIGN after January 17, 2014, even
6
though the jury verdict precluded such action. Accordingly,
a permanent injunction safeguards the jury verdict and is
necessary to protect Health & Sun’s trademark from additional
post-verdict non-compliance by Australian Gold.
Considering the balance of hardships between Health &
Sun
and
Australian
Gold,
a
permanent
injunction
imposes
minimal compliance costs upon Australian Gold. A permanent
injunction serves the public interest because it establishes
that Australian Gold no longer sells PURPLE REIGN and protects
consumers from being misled and confused if Australian Gold
distributes
any
existing
materials
that
advertise
the
infringing PURPLE REIGN product.
Accordingly,
Australian
Gold
is
prohibited
from
manufacturing or selling the infringing PURPLE REIGN product.
As to the issue of advertisement, Australian Gold is directed
to stamp all PURPLE REIGN product pages found within its
annual catalogs, training guides, or related materials with
a large stamp mark that says, “This product is no longer
available.” This requirement only applies to annual catalogs,
training
guides,
or
related
materials
currently
within
Australian Gold’s possession. After the stamp mark is affixed
to each PURPLE REIGN page, Australian Gold may then distribute
such materials. Henceforth, Australian Gold is prohibited
7
from creating, promoting, or distributing any additional
advertising
or
marketing
materials
that
contain
the
infringing PURPLE REIGN product.
B.
Health & Sun’s Motion
Enhanced Damages
for
Attorneys’
Fees
and
1. Attorneys’ Fees
Section 1117(a) of the Lanham Act governs the analysis
of Health & Sun’s Motion for Attorneys’ Fees and Enhanced
Damages. 15 U.S.C. § 1117(a).
According to Section 1117(a)
of the Act, if a violation of 1125(a) is established, the
plaintiff is entitled, “subject to the principle of equity,
to recover (1) defendant’s profits, (2) any damages sustained
by the plaintiff, and (3) the costs of the action.” Id.
Additionally, the Act states that “[i]f the court shall find
that the amount of the recovery based on profits is either
inadequate or excessive the court may, in its discretion,
enter judgment for such sum as the court shall find to be
just, according to the circumstances of the case.” Id.
Section 1117(a) of the Lanham Act further establishes
that,
in
“exceptional”
cases,
the
court,
“[m]ay
award
reasonable attorney’s fees to the prevailing party.” Id.
However,
the
Act
cautions
that
damages
awards
constitute compensation and not a penalty.” Id.
8
“shall
“Although a case may rise to the level of exceptionality,
the
decision
discretion
to
of
grant
the
attorney fees
trial
remains
court.” Burger
within
King
Corp.
the
v.
Pilgrim's Pride Corp., 15 F.3d 166, 168 (11th Cir. 1994). In
determining whether a case is exceptional under the Lanham
Act,
courts
consider
whether
a
defendant’s
conduct
was
“malicious, fraudulent, deliberate and willful,” or one in
which “evidence of fraud or bad faith” exists. Dieter v. B &
H Indus. of S.W. Fla., Inc., 880 F.2d 322, 329 (11th Cir.
1989); Safeway
Stores,
Inc.
v.
Safeway
Discount
Drugs,
Inc., 675 F.2d 1160, 1169 (11th Cir. 1982).
Health & Sun argues that this is an “exceptional case”
because
Australian
Gold’s
trademark
infringement
was
deliberate, willful, and reckless. (Doc. # 145 at 2-5). In
support of its position, Health & Sun asserts that Australian
Gold failed to take reasonable measures to determine whether
the PURPLE REIGN mark was already being used in association
with indoor tanning products, perform a meaningful search to
determine whether Health & Sun’s PURPLE RAIN product was on
the market, or to cease using the PURPLE REIGN mark after
receiving a cease and desist letter from Health & Sun. Health
& Sun also directs the Court to the jury verdict which states
that “Australian Gold’s conduct was willful and deliberate,
9
Australian
Gold
was
unjustly
enriched,
or
an
award
is
necessary to deter future conduct.” (Doc. # 145 at 1, Doc. #
109 at 2).
However, during the hearing held on June 13, 2014, when
the Court asked the amount of fees being sought, Health & Sun
could only provide an approximation of $270,000. Health & Sun
also could not, during the hearing, supply the Court with the
hourly rates for each billing attorney or the number of hours
recorded for each attorney.
Australian Gold disputes that its trademark infringement
was
deliberate,
willful,
and
reckless.
Australian
Gold
counters that this is not an exceptional case because it acted
in good faith both before and after receiving the letter from
Health & Sun.
In support of its position, Australian Gold
emphasizes that it made reasonable searches for conflicting
uses before marketing and selling PURPLE REIGN, applied for
and
received
a
federal
trademark
registration
on
PURPLE
REIGN, and responded to Health & Sun’s letter to investigate
and defend against the claim.
Australian Gold also notes
that the jury did not make an express finding of recklessness
on the part of Australian Gold. According to Australian Gold,
an
enhancement
of
the
jury’s
award
in
this
constitute a penalty rather than compensation.
10
case
would
Upon due consideration, the Court denies Health & Sun’s
request for attorneys’ fees. Health & Sun has not demonstrated
that
Australian
Gold
acted
in
a
malicious,
fraudulent,
deliberate and willful manner, or even with fraud or bad
faith.
Reasonable
minds
may
differ
as
to
what
actions
Australian Gold should have taken with respect to initially
researching potential trademark infringement and responding
to Health & Sun’s letter. However, the actions taken by
Australian Gold such as searching for conflicting uses before
marketing
and
selling
PURPLE
REIGN,
applying
for
and
receiving a federal trademark registration for PURPLE REIGN,
and responding to Health & Sun’s letter demonstrate that
Australian Gold was not reckless.
Australian Gold’s actions
do not suggest malicious, fraudulent, deliberate and willful
infringement, fraud, or bad faith.
Even if Australian Gold’s conduct rises to the level of
exceptionality contemplated under the Lanham Act, the Court
exercises its discretion to deny Health & Sun’s Motion for
Attorneys’ Fees. Burger King, 15 F.3d at 168 (“Although a
case may rise to the level of exceptionality, the decision to
grant attorney fees remains within the discretion of the
trial court.”).
11
2. Enhanced Damages
In order to recover damages, the prevailing party must
“demonstrate
that
it
suffered
actual
damages.”
Babbit
Electronics, Inc. v. Dynascan Corp., 38 F.3d 1161, 1182 (11th
Cir. 1994). In order to prove actual damages, the prevailing
party must also prove “[b]oth lost sales and that the loss
was
caused
by
defendants’
action.”
Id.
(quoting
Playboy
Enters. v. P.K. Sorren Export Co., 546 F. Supp. 987, 996 (S.D.
Fla. 1982)). Enhanced damages “may not be punitive, and must
be based on a showing of actual harm.” Optimum Techs., Inc.
v. Home Depot USA, Inc., 217 F. App’x. 899, 903 (11th Cir.
2007)(quoting
infringement
Babbit,
is
38
F.3d
intentional,
the
at
1183).
decision
Unless
to
reduce
the
or
enhance damages remains within the discretion of the trial
court. Babbit, 38 F.3d at 1183.
Health & Sun argues that its recovery based on Australian
Gold’s profits is inadequate.
Health
&
Sun
emphasizes
In support of its position,
the
possibility
of
willful
infringement on the part of Australian Gold and the continued
infringement of Health & Sun’s trademark by Australian Gold
after the final jury verdict. Within its Motion, Health & Sun
initially requested the Court to treble the damages awarded
by the jury from $147,615 to $442,845. (Doc. # 145 at 6).
12
However, at the hearing held on June 13, 2014, Health & Sun
reduced
its
enhanced
damages
request
from
$442,885
to
$367,663.
Australian Gold contends that an enhancement of the
jury’s award, in any amount, would constitute a penalty rather
than compensation.
Australian Gold asserts that there is no
evidence that Health & Sun was actually harmed or that its
PURPLE RAIN product’s sales or profits were affected by
Australian Gold’s sale of PURPLE REIGN. Australian Gold notes
that the jury’s award is more than fourteen times Health &
Sun’s total sale of its PURPLE RAIN product over an eightyear period and that there is no evidence of confusion or
lost sales.
Having considered the parties’ arguments, the Court
denies Health & Sun’s request for enhanced damages. Health &
Sun has not established that Australian Gold’s trademark
infringement caused actual damages to Health & Sun or that
its PURPLE RAIN product’s sales or profits were affected by
Australian
unspecified
Gold’s
sale
damages
to
of
PURPLE
Health
&
REIGN.
Sun’s
Merely
claiming
reputation
and
confusion in the marketplace, without providing the Court
with specific evidence of such damages, is insufficient to
warrant an enhancement of damages. Specifically, Health & Sun
13
has not demonstrated either lost sales of PURPLE RAIN or that
such lost sales were caused by Australian Gold’s conduct. See
Babbit, 38 F.3d at 1182.
Furthermore, Health & Sun has not demonstrated that
Australian Gold’s infringement was intentional. The actions
taken by Australian Gold such as searching for conflicting
uses before marketing and selling PURPLE REIGN, applying for
and receiving a federal trademark registration for PURPLE
REIGN,
and
responding
to
Health
&
Sun’s
letter
suggest
otherwise. Additionally, the jury did not make an express
finding that Australian Gold actually intended to infringe
Health
&
Sun’s
“Australian
Australian
trademark.
Gold’s
Gold
was
conduct
Rather,
was
unjustly
the
willful
enriched,
jury
and
or
found
that
deliberate,
an
award
is
necessary to deter future conduct.” (Doc. # 109 at 2)(emphasis
added). Although the jury may have concluded that Australian
Gold intended to infringe Health & Sun’s trademark, the jury
may have alternatively concluded that Australian Gold acted
unintentionally, misguidedly, or negligently. Generally, it
is not the province of the Court to augur the thoughts,
reasoning, or decision-making of the jury.
Finally, enhancing the jury’s award in this case would
be punitive and constitute a penalty rather than damages. The
14
Court accordingly denies Health & Sun’s request for enhanced
damages.
3.
Prejudgment Interest
Health & Sun’s Motion for Attorneys’ Fees and Enhanced
Damages also requests prejudgment interest and disgorgement
of post-verdict profits.
At the hearing held on June 13,
2014, Health & Sun orally withdrew its request for prejudgment
interest. Therefore, the Court denies Health & Sun’s request
as moot.
4.
Disgorgement
Health & Sun requests the Court to disgorge any postverdict profits made by Australian Gold as to PURPLE REIGN.
Health & Sun also requests limited discovery to determine
whether Australian Gold made sales of PURPLE REIGN after the
date of the jury’s verdict.
Australian Gold responded to Health & Sun’s Motion by
indicating that it has ceased selling PURPLE REIGN and has no
plans to resume selling the infringing product, presumably
rendering
Australian
disgorgement
Gold
filed
unnecessary.
the
(Doc.
declaration
of
#
147
Martin
at
3).
Sperry,
overseer of the accounting functions at Australian Gold, to
demonstrate that it has ceased selling PURPLE REIGN and has
no plans to resume doing so. (Doc. # 147-1).
15
However, at the hearing held on June 13, 2014, Australian
Gold admitted that it made sales of PURPLE REIGN after the
jury verdict was entered on January 17, 2014. Thus, Australian
Gold’s declaration that it has ceased selling PURPLE REIGN
and has no plans to resume doing so is not dispositive as to
the issue of disgorgement of post-verdict profits.
Since Australian Gold has not supplied the Court with
the exact date upon which it ceased selling PURPLE REIGN and
did not specify the number of units sold, the Court does not
have sufficient information to determine whether disgorgement
of post-verdict profits, if any, is appropriate at this time.
Accordingly, by June 27, 2014, Australian Gold is directed to
provide the Court and Health & Sun with a report detailing
the following: 1) the total number of PURPLE REIGN units sold
on or after January 17, 2014, 2) the date of each PURPLE REIGN
unit sale made on or after January 17, 2014, 3) the sales
price of each PURPLE REIGN unit sold on or after January 17,
2014, and 4) the name and/or customer identification of each
purchaser that AUSTRALIAN GOLD sold one or more PURPLE REIGN
units to on or after January 17, 2014.
Within ten days of the Court receiving this information,
the Court directs Health & Sun and Australian Gold to file
separate submissions specifying how much profit, if any,
16
should be disgorged from Australian Gold as a result of
Australian
Gold’s
post-verdict
sales
of
PURPLE
REIGN.
Alternatively, Health & Sun and Australian Gold may submit a
joint resolution of the matter to the Court for approval. The
Court will issue a separate order as to disgorgement after it
receives the information described above.
C.
Australian Gold’s Motion to Reduce Damages
Section 1117(a) of the Lanham Act governs the analysis
of Australian Gold’s Motion to Equitably Reduce Damages. 15
U.S.C. § 1117(a). “[T]he law in this Circuit is well settled
that a plaintiff need not demonstrate actual damage to obtain
an award reflecting an infringer’s profits under § 35 of the
Lanham Act.” Burger King, 855 F.2d at 781.
profits
furthers
the
congressional
An accounting for
purpose
of
making
infringement unprofitable, deprives the defendant of unjust
enrichment, and provides a deterrent to similar activity in
the future. Id. An award of profits based upon either unjust
enrichment or deterrence is not “dependent upon a higher
showing of culpability on the part of [the] defendant, who is
purposely using the trademark.” Id. Additionally, the Lanham
Act “confers broad discretion upon the district court to
fashion the assessment of damages,” according to the specific
circumstances
of
each
case.
17
Id.
at
782.
As
mentioned
previously, damages awards “shall constitute compensation and
not a penalty.” 15 U.S.C. § 1117(a).
Australian Gold argues that the jury’s award constitutes
a
penalty
rather
than
compensation
because
there
is
no
evidence that Health & Sun was actually harmed or that its
PURPLE
RAIN
product
sales
or
profits
were
affected
by
Australian Gold’s product. Australian Gold emphasizes the low
level
of
sales
made
by
Health
&
Sun
of
PURPLE
RAIN,
constituting approximately $10,000 over a ten-year period.
Australian Gold also asks this Court to consider equitable
factors including Health & Sun’s “undisputed” and “unexcused”
fourteen month failure to reply to Australian Gold’s requests
for information regarding Health & Sun’s claims of PURPLE
RAIN trademark rights. (Doc. # 146 at 3-4, 6).
Health & Sun counters that it did not need to demonstrate
actual damages in order to receive Australian Gold’s profits
under the Lanham Act. Additionally, Health & Sun asserts that
reducing Australian Gold’s damages would disregard the jury
finding
that
“Australian
Gold’s
conduct
was
willful
and
deliberate, Australian Gold was unjustly enriched, or an
award is necessary to deter future conduct.” (Doc. # 149 at
3). Health & Sun disputes that its actions compel an equitable
18
reduction in profits and cites the jury’s verdict in support.
(Doc. # 109 at 7).
Balancing
the
equities
and
considering
the
facts
presented, the Court denies Australian Gold’s request to
equitably
reduce
demonstrated
that
damages.
the
Australian
jury’s
award
of
Gold
has
Australian
not
Gold’s
profits to Health & Sun constitutes a penalty rather than
compensation. Although the award exceeds the total sales of
Health & Sun over a ten-year period, the Lanham Act does not
require a showing of actual damages for a prevailing party to
receive an infringer’s profits. Burger King, 855 F.2d at 781.
Rather, under the Lanham Act, the jury was free to award
Australian Gold’s profits to Health & Sun on the basis of
willfulness,
deterrence,
or
unjust
enrichment
without
requiring Health & Sun to make a higher showing of culpability
on the part of Australian Gold. Id.; (Doc. # 109 at 2). The
jury determined that the damages award was necessary to
compensate Health & Sun for Australian Gold’s conduct, deter
future conduct, prevent unjust enrichment, or any combination
of the aforementioned. (Doc. # 109 at 2). Such determinations
are left to the province of the jury.
19
III. Conclusion
In conclusion, the Court grants Health & Sun’s request
for a permanent injunction, denies Health & Sun’s request for
attorneys’ fees and enhanced damages, denies Health & Sun’s
request for prejudgment interest as moot, requires further
information
from
Australian
Gold
concerning
post-verdict
sales of the infringing PURPLE REIGN product prior to deciding
the
issue
of
disgorgement,
and
denies
Australian
Gold’s
request to equitably reduce damages.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Health & Sun’s Motion for Permanent Injunction (Doc. #
144) is GRANTED as specified herein.
(2)
Health & Sun’s Motion for Attorneys’ Fees and Enhanced
Damages (Doc. # 145) is DENIED as to attorneys’ fees,
DENIED as to enhanced damages, and DENIED AS MOOT as to
prejudgment interest. As to disgorgement, the Court
directs Australian Gold to file a report of its postverdict sales of PURPLE REIGN on or before June 27, 2014,
as specified above. The parties have ten days from the
filing
of
that
report
to
file
separate
submissions
regarding disgorgement or a joint resolution of the
20
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