MWR Holdings, LLC et al v. Academy of Tampa, Inc.
Filing
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DEFAULT FINAL JUDGMENT AND PERMANENT INJUNCTION. Order granting 12 Plaintiffs' Motion for Default Judgment. (See Order for details.) The Clerk shall terminate any pending motions and close this case. Signed by Judge James S. Moody, Jr on 11/3/2014. (LN)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
MWR HOLDINGS, LLC, THE
LEARNING EXPERIENCE SYSTEMS,
LLC, and
THE LEARNING EXPERIENCE
HOLDING CORP.
Case No: 8:14-cv-1325-T-30MAP
Plaintiffs,
v.
ACADEMY OF TAMPA, INC.
Defendant.
DEFAULT FINAL JUDGMENT AND PERMANENT INJUNCTION
This matter comes before the Court on Plaintiffs MWR Holdings, LLC, The
Learning Experience Systems, LLC, and The Learning Experience Holding Corporation’s
(collectively, “Plaintiffs”) Motion for Default Judgment (Dkt. #12). For the reasons given
below, and having considered the materials supplied and cited by Plaintiffs in support of
their Motion, the Court finds that default judgment is appropriate, and the Plaintiffs’
Motion should be granted.
FINDINGS OF FACT
1. On June 4, 2014, Plaintiffs MWR Holdings, LLC, The Learning Experience
Systems, LLC and the Learning Experience Holding Corporation commenced this action
against Defendant Academy of Tampa, Inc. alleging, in pertinent part, that Defendant
engaged in trademark infringement, federal unfair competition, and violations of the
Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.211.
2. On July 30, 2014, the Clerk of Court entered a default against the Defendant. (Dkt.
# 11).
3. Plaintiffs are the owners of U.S. Trademark Registration No. 4,105,084 for the
“Bubbles the Elephant” character and the wording “THE LEARNING EXPERIENCE
CHILD DEVELOPMENT CENTER,” U.S. Trademark Registration No. 3,214,487 for
their “distinctive school trade dress,” the pending U.S. Trademark application for Serial
No. 86/054,445 for their “Bubbles the Elephant” character, pending U.S. Trademark
Application Serial No. 85/761,890 for their “Bubbles the Elephant” character and the
wording “THE LEARNING EXPERIENCE ACADEMY OF EARLY EDUCATION,”
and the pending U.S. Trademark Application Serial No. 85/749,888 for their “distinctive
school trade dress.”
4. Plaintiffs use their Bubbles the Elephant mark extensively throughout their licensees’
schools and marketing materials, including in their three locations in Tampa.
5. The Defendant operates a child care center called “Kids Corner” located in Tampa,
Florida.
6. The Kids Corner child care center features the identical letter and number block
pillars, the “Bubbles the Elephant” mark, and the multi-colored block lettering as those
featured in Plaintiffs’ trademarks.
7. The Kids Corner child care center also features a road sign that incorporates
Plaintiffs’ “Bubbles the Elephant” mark and multi-colored block lettering.
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8. The Defendant was not authorized to use Plaintiffs’ marks and intellectual property.
9. The Defendant has harmed Plaintiffs by engaging in the aforementioned infringing
activities.
10. The marks so displayed are identical to Plaintiffs federally registered trademarks.
11. The following rates are reasonable based on the respective attorney’s experience
and the market rate in Tampa: $400.00 for Jason Kislin, $450.00 for Robert Wexler,
$400.00 for William Stroever, and $475.00 for Greg W. Kehoe. The requested 35.90 hours
were reasonably spent in attaining the result for the Plaintiffs. Therefore, the Plaintiffs’
reasonable attorney’s fees are $14,647.50.
12. Plaintiff’s recoverable costs are $440.97.
CONCLUSIONS OF LAW
1. By virtue of its default in this matter, the Defendant is deemed to have admitted
those facts alleged in the Complaint that are material to Plaintiffs’ claims against it.
2. By using Plaintiffs’ marks in its child care center, the Defendant has committed acts
that are likely to cause confusion among consumers of their services as to the authorization,
sponsorship, and affiliation of their services with Plaintiffs. In particular, consumers who
use the Defendant's 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 Defendant's activities constitute trademark infringement under
federal law and Florida common law.
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4. The Defendant's same acts constitute a violation of § 43(a) of the Trademark Act of
1946, as amended, in that the display of Plaintiffs’ marks constitutes a false designation of
the origin of those materials.
5. The Defendant's same acts further constitute unfair competition under 15 U.S.C. §
1125.
6. The Defendant's same acts further constitute a violation of FDUTPA.
7. Defendant’s acts are deliberate and willful.
8. Plaintiffs are entitled to a statutory damage award from the Defendant.
9. Plaintiffs are entitled to attorney’s fees and costs.
10. Permanent injunctive relief against the Defendant is necessary to prevent continuing
harm to Plaintiffs.
11. An injunction forbidding the use of Plaintiffs’ marks is an appropriate remedy for
the federal unfair competition and FDUTPA violations and is appropriate to protect the
rights of the Plaintiffs, its legitimate downstream customers, and the public at large.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. Plaintiffs' Motion for Default Judgment (Dkt. # 12) is GRANTED.
2. The Court awards Plaintiff statutory damages in the amount of $10,000.00.
3. The Court awards Plaintiff $14,647.50 in attorney’s fees and $440.97 in costs for a
total amount of $15,088.47.
4. Final Judgment is hereby entered in favor of Plaintiffs MWR Holdings, LLC, The
Learning Experience Systems, LLC, and The Learning Experience Holding Corporation
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and against Defendant Academy of Tampa, Inc. in the amount of $25,088.47 for which
sums let execution issue.
5. A Permanent Injunction is hereby entered in favor of Plaintiffs MWR Holdings,
LLC, The Learning Experience Systems, LLC, and the Learning Experience Holding
Corporation and against Academy of Tampa, Inc., their respective agents, servants,
employees, officers, successors, licenses, assigns, and all persons acting in concert or
participation with it to:
a.
cease and desist any present or future use of Plaintiffs’ registered and
unregistered trademarks, or marks confusingly similar thereto;
b.
cease and desist any present or future use of signage using Plaintiffs’
registered and unregistered trademarks, or marks confusingly similar thereto;
in addition, Defendant, Academy of Tampa, Inc., its employees, representatives, agents,
servants, attorneys, and all persons who act in privity or participation with it are
HEREBY ORDERED TO:
c.
remove all trade dress, signage, advertising, or other uses of Plaintiffs’
trademarks from Defendant’s Kid’s Corner child care center location.
6. The Clerk of Court shall close this case and terminate any pending motions as moot.
Done and Ordered in Tampa, Florida on this 3rd day of November, 2014.
cc: Counsel/Parties of Record
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