Coolmath.com, LLC v. Evertap LLC et al

Filing 28

ORDER: Plaintiff Coolmath.com, LLC's Motion for Default Judgment 27 is GRANTED to the extent set forth herein. The Clerk is directed to enter Judgment in favor of Plaintiff Coolmath.com LLC and against Defendants Evertap LLC, Cool Math Games For Fun, LLC and Ryan Wade in the amount of $15,000. Thereafter, the Clerk is directed to CLOSE THIS CASE. The Court declines to retain jurisdiction over this matter. In the event Defendants fail to adhere to this Court's Order, Plaintiff may pursue appropriate remedies at that time. Signed by Judge Virginia M. Hernandez Covington on 12/17/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
COOLMATH.COM, LLC,
Plaintiff,
v.

Case No. 8:14-cv-2638-T-33TBM

EVERTAP LLC, ET AL.,
Defendants.
______________________________/
ORDER
This matter comes before the Court in consideration of
Plaintiff Coolmath.com, LLC’s (Plaintiff) Motion for Default
Judgment (Doc. # 27), filed on December 10, 2014. For the
reasons that follow, the Court grants the Motion as set forth
herein.
I.

Background
Plaintiff is the owner of all rights in the trade name

and registered mark COOLMATH as well as numerous COOLMATHinclusive

marks

(collectively

referred

to

as

“COOLMATH

Mark”). (Doc. # 1 at ¶¶ 1, 10). Plaintiff has used the
COOLMATH Mark since early 1997 “in connection with math and
science educational computer games in the United States and
around

the

world

.

.

.,”

including

in

connection

with

educational websites. (Id. at ¶¶ 1, 11). Plaintiff’s websites

now include coolmath.com, coolmath4kids.com, and coolmathgames.com. (Id. at ¶ 12).
According to the Complaint, Plaintiff’s websites “have
been considered leading internet sites for math games and
education.” (Id. at ¶ 13).

As a result, “Plaintiff takes

great pains to ensure that every game on its sites has
educational value, with age-appropriate content and skills to
be gained for the user.” (Id. at ¶ 14). “Based in part on the
care

Plaintiff

has

taken

with

its

services,

Plaintiff’s

websites are well-regarded by teachers and parents and are
approved for use in schools across the nation.” (Id.). “As a
consequence of Plaintiff’s extensive and continuous use of
the COOLMATH Mark, the COOLMATH Mark enjoys considerable
goodwill in the United States and elsewhere, identifies and
distinguishes Plaintiff’s services from those of others, and
has become a valuable asset of Plaintiff.” (Id. at ¶ 17).
In addition, the COOLMATH Mark has been registered in
the United States for use in connection with “‘Computer
services, namely, providing on-line website in the field of
mathematics and science education; entertainment services,
namely providing on-line computer games in the field of
mathematics and science [e]ducation’ in International Class
41.” (Id. at ¶ 18; Doc. # 1-2). This trademark registration

2 

- U.S. Registration No. 3,404,699 – is “valid, subsisting and
in full force and effect.” (Doc. # 1 at ¶ 18).
On April 23, 2014, Defendant Ryan Wade registered the
coolmathgamesforfun.com

domain

name.

(Id.

at

¶

20).

In

conjunction with registering this domain name, Defendants
Wade and Evertap LLC formed a new limited liability company
- Defendant Cool Math Games For Fun, LLC - a division of
Evertap, “with the mission of offering online math games.”
(Id. at ¶ 21).
Shortly after registering the coolmathgamesforfun.com
domain

name,

Defendants

launched

a

website

at

coolmathgamesforfun.com “offering online math-related games
under the mark COOL MATH GAMES FOR FUN (the ‘Infringing
Mark’),”

which

was

“aimed

at

students

identical

and/or

closely related to those games offered by Plaintiff under its
COOLMATH Mark.” (Id. at ¶ 22). At the same time, or shortly
thereafter, Defendants also began marketing math-related game
applications under the Infringing Mark through the Apple
iTunes Store under the trade name of Cool Math Games for Fun.
(Id. at ¶ 23).
According to the Complaint,
Defendants have never been associated or affiliated
with Plaintiff in any way and Plaintiff has never

3 

authorized or otherwise licensed Defendants’ use of
the Infringing Mark in connection with the
provision of online math games, the trade name of
Defendant Cool Math Games For Fun, or any other
products or services in the United States or
elsewhere.
(Id. at ¶ 24). Therefore, on October 3, 2014, Plaintiff’s
counsel

sent

a

letter

to

Wade

concerning

Defendants’

“unauthorized use of the Infringing Mark” and requested that
Defendants “immediately cease their unlawful activities.”
(Id. at ¶ 26). Although Defendants are on actual notice of
Plaintiff's exclusive rights in the COOLMATH Mark, Plaintiff
contends that “Defendants have nevertheless continued to
advertise and offer, under the Infringing Mark, online math
games that are identical and/or closely related to those
offered by Plaintiff under its COOLMATH Mark.” (Id. at ¶ 27).
Plaintiff initiated this action on October 20, 2014,
asserting claims for (1) Federal Trademark Infringement under
Section 32 of the Lanham Act, 15 U.S.C. § 1114(1), (2) Federal
Unfair Competition under Section 43(a) of the Lanham Act, 15
U.S.C. § 1125(a), (3) Cybersquatting Under 43(d) of the Lanham
Act, 15 U.S.C. § 1125(d), (4) Unlawful Acts and Practices,
Fla. Stat. § 501.204, and (5) Unfair Competition under Florida
Common Law. (See Doc. # 1). Plaintiff requested that the Court
award injunctive relief, including enjoining Defendants from

4 

using the Infringing Mark, statutory damages under 15 U.S.C.
§ 1125(d) and other damages, costs, and fees as set forth in
the Complaint. (See Id.).
Plaintiff effectuated service of process on Defendants
on October 29, 2014. (Doc. ## 18-20). Defendants failed to
respond to the Complaint.

As a result, on November 21, 2014,

Plaintiff filed an application for Clerk’s default against
Defendants (Doc. # 22), and the Clerk issued its entry of
default on November 26, 2014, against Cool Math Games For Fun
and on December 8, 2014, against Evertap and Wade (Doc. ##
24-25). Thereafter, on December 10, 2014, this Court entered
an Order directing Plaintiff to proceed with filing its motion
for default judgment against Defendants. (Doc. # 26). That
same day, Plaintiff filed the present Motion. (See Doc. #
27).
II.

Legal Standard
Federal Rule of Civil Procedure 55(a) provides: “When a

party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party’s

default.”

A

district

court

may

enter

a

default

judgment against a properly served defendant who fails to
defend or otherwise appear pursuant to Federal Rule of Civil

5 

Procedure 55(b)(2). DirecTV, Inc. v. Griffin, 290 F. Supp. 2d
1340, 1343 (M.D. Fla. 2003).
The mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment. See
Tyco Fire & Sec. LLC v. Alcocer, 218 F. App’x 860, 863 (11th
Cir. 2007) (citing Nishimatsu Constr. Co. v. Hous. Nat’l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975)). Rather, a Court must
ensure that there is a sufficient basis in the pleadings for
the judgment to be entered. Id. A default judgment has the
effect of establishing as fact the plaintiff’s well-pled
allegations of fact and bars the defendant from contesting
those facts on appeal. Id.
“Once liability is established, the court turns to the
issue of relief.” Enpat, Inc. v. Budnic, 773 F. Supp. 2d 1311,
1313 (M.D. Fla. 2011). “Pursuant to Federal Rule of Civil
Procedure 54(c), ‘[a] default judgment must not differ in
kind from, or exceed in amount, what is demanded in the
pleadings,’ and a court may conduct hearings when it needs to
determine the amount of damages, establish the truth of any
allegation by evidence, or investigate any other matter.” Id.
III.

Liability
A.

Trademark Infringement Under Federal Law

6 

Trademark infringement is proscribed by 15 U.S.C. §
1114(1)(a). That provision reads, in relevant part:
(1) Any person who shall, without the consent of
the registrant –
(a) use in commerce any reproduction, counterfeit,
copy, or colorable imitation of a registered mark
in connection with the sale, offering for sale,
distribution, or advertising of any goods or
services on or in connection with which such use is
likely to cause confusion, or to cause mistake, or
to deceive . . . shall be liable in a civil action
by the registrant for the remedies hereinafter
provided.
on a trademark

15 U.S.C. § 1114(1)(a). Thus, to succeed

infringement claim, a plaintiff must prove (1) that its valid
mark was used in commerce by the defendant without consent
and

(2)

that

the

unauthorized

use

was

likely

to

cause

confusion, to cause mistake, or to deceive. See Gen. Motors
Corp. v. Phat Cat Carts, Inc., 504 F. Supp. 2d 1278, 1283
(M.D. Fla. 2006); Dieter v. B&H Indus. of S.W. Fla., Inc.,
880 F.2d 322, 326 (11th Cir. 1989).
i.

Trademark Validity and Unauthorized Use

Plaintiff

contends

that

“there

is

no

question

that

Plaintiff has a valid mark” (Doc. # 27 at 12), and this Court
agrees.

In

registered

the

Complaint,

the

COOLMATH

Plaintiff
Mark

-

posits

U.S.

that

it

has

Registration

No.

3,404,699 - for use of the COOLMATH Mark in connection with

7 

“‘Computer services, namely, providing on-line website in the
field of mathematics and science education; entertainment
services, namely, providing on-line computer games in the
field

of

mathematics

and

science

[e]ducation’

in

International Class 41.” (Doc. # 1 at ¶ 18; Doc. # 1-2). To
that

end,

Plaintiff

avers

that

U.S.

Registration

No.

3,404,699 has become incontestable under Section 15 of the
Lanham

At,

15

U.S.C.

§

1065,

and

therefore

“serves

as

conclusive evidence of the validity of the registered mark,
of the registration of the mark, and of Plaintiff’s exclusive
right to use the mark in commerce on or in connection with
the goods and services for which the mark is registered.”
(Doc. # 1 at ¶ 19; Doc. # 27 at 12). In addition, as set forth
in the Complaint, since as early as 1997, Plaintiff has
continuously used the COOLMATH Mark to identify its math and
science game and educational websites. (Doc. # 1 at ¶ 11).
Furthermore,

Plaintiff

argues

that

it

has

never

consented to Defendants’ use of the Infringing Mark, in
connection with the provision of online math games. (Id. at
¶ 24). In fact, Plaintiff sent Defendants a letter requesting
that they cease and desist their “unlawful activities.” (Id.
at ¶ 26). Therefore, the Court finds that Plaintiff has

8 

satisfied the initial element of its trademark infringement
claim.
ii.

Likelihood of Confusion

“Proof of ‘likelihood of confusion’ is the sine qua non
in actions for 15 U.S.C. § 1114 trademark infringement . . .
.” Fila U.S.A., Inc. v. Kim, 884 F. Supp. 491, 494 (S.D. Fla.
1995). “Determination of likelihood of confusion requires
analysis of the following seven factors: (1) type of mark,
(2) similarity of mark, (3) similarity of the products [or
services] the marks represent, (4) similarity of the parties’
retail outlets and customers, (5) similarity of advertising
media used, (6) defendant’s intent and (7) actual confusion.”
Dieter, 880 F.2d at 326. “Although likelihood of confusion
generally is a question of fact, it may be decided as a matter
of law.” Alliance Metals, Inc. of Atlanta v. Hinely Indus.,
Inc., 222 F.3d 895, 907 (11th Cir. 2000).
In this case, Plaintiff has sufficiently alleged that
Defendants’ product is likely to cause consumer confusion.
(See Doc. # 1). In particular, as an incontestable mark,
Plaintiff’s COOLMATH Mark is presumed to be strong. (Doc. #
27 at 14)(citing Dieter v. B&H Indus. of Sw. Fla., Inc., 880
F.2d 322, 329 (11th Cir. 1989)(“Because Dieter’s mark is
incontestable, then it is presumed to be . . . a relatively

9 

strong mark.”). Likewise, the similarity between the COOLMATH
Mark and the Infringing Mark is apparent as suggested by
Plaintiff: “Defendants have taken Plaintiff’s COOLMATH Mark
in

its

entirety

and

are

using

the

identical

mark

on

competitive goods with the addition of the generic words
‘GAMES’ and ‘FOR FUN.’” (Id.).
Furthermore, there is similarity between Plaintiff and
Defendants’

“goods

and

advertising

methods.”

services,
(Id.).

sales

Namely,

and

as

methods,

alleged

in

and
the

Complaint, Defendants have been and presently are advertising
and offering online math games identical or nearly identical
to those offered by Plaintiff through a means of distribution
identical to that used by Plaintiff. (Id.; Doc. # 1 at ¶¶ 2223).
Moreover, Plaintiff has alleged that Defendants’ use of
the

Infringing

Mark

is

causing

actual

confusion

in

the

marketplace. (Doc. # 27 at 15; Doc. # 1 at ¶ 32). This is so,
because consumers mistakenly assume “that Defendants and
their

services

associated

with

offered
or

under

sponsored

the
or

Infringing

approved

by

Mark

are

Plaintiff.”

(Id.). Therefore, taking Plaintiff’s allegations as true, the
Court finds that there is a strong likelihood of confusion in
the present case because consumers may associate Plaintiff’s

10 

COOLMATH

Mark

with

the

Defendants’

Infringing

Mark.

Accordingly, Plaintiff has met its burden as to its claim for
trademark infringement under Federal law.
B.

Unfair Competition Under Federal Law & Florida
Common Law

Section

43(a)

of

the

Lanham

Act,

15

U.S.C.

§

1125(a)(1)(A), provides in relevant part:
(a) Civil action
(1) Any person who, on or in connection with any
goods or services, or any container for goods, uses
in commerce any word, term, name, symbol, or
device, or any combination thereof, or any false
designation
of
origin,
false
or
misleading
description of fact, or false or misleading
representation of fact, which —
(A) is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation,
connection, or association of such person with
another person, or as to the origin, sponsorship,
or approval of his or her goods, services, or
commercial activities by another person, . . .
* * *
shall be liable in a civil action by any person who
believes that he or she is or is likely to be
damaged by such act.
15 U.S.C. § 1125(a)(1)(A).
Furthermore, the Florida Deceptive and Unfair Trade
Practices Act, Fla. Stat. § 501.204, provides that “[u]nfair

11 

methods of competition, unconscionable acts or practices, and
unfair or deceptive acts or practices in the conduct of any
trade

or

commerce

are

.

.

.

unlawful.”

Fla.

Stat.

§

501.204(1); see also Bavaro Palace, S.A. v. Vacation Tours,
Inc., 203 F. App’x 252, 256 (11th Cir. 2006).
To establish either federal unfair competition under
Section 43 of the Lanham Act, a violation of the Florida
common law of unfair competition, or a violation of the
Florida Deceptive and Unfair Trade Practices Act, Florida
Stat.

§

501.204,

the

allegations

of

the

Complaint

must

demonstrate that Plaintiff “(1) had prior rights to the mark
at issue and (2) that the defendant had adopted a mark or
name that was the same, or confusingly similar to its mark,
such that consumers were likely to confuse the two.” Planetary
Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 (11th
Cir. 2001); Suntree Techs., Inc. v. Ecosense Int'l, Inc., 693
F.3d 1338, 1345 (11th Cir. 2012)(finding that the district
court did not err in concluding that the legal analysis was
the

same

violation

for
of

unfair
the

competition

state

law

of

under
unfair

the

Lanham

competition,

Act,
and

violation of the Florida Deceptive and Unfair Trade Practices
Act).

12 

The

facts

alleged

in

the

Complaint

establish

that

Plaintiff has prior rights in the COOLMATH Mark. To begin,
Plaintiff has been using its COOLMATH Mark since at least
1997. (Doc. # 1 at ¶¶ 1, 11). Further, in connection with
enforcing its rights in the COOLMATH Mark, Plaintiff owns an
incontestable registration for the COOLMATH Mark. (Id. at ¶¶
18-19).

Defendants,

however,

did

not

begin

using

the

Infringing Mark until approximately April of 2014, when Wade
registered

the

coolmathgamesforfun.com

domain

name

and

Defendants launched a website at that domain name offering
“online math-related games” under the Infringing Mark. (Id.
at ¶¶ 20, 22). Accordingly, the Court finds that the wellpled allegations, taken as true, demonstrate that Plaintiff’s
COOLMATH Mark has priority. (See Doc. # 27 at 16-18)(citing
PetMed Express, Inc. v. MedPets.Com, Inc., 336 F. Supp. 2d
1213, 1218 (S.D. Fla. 2004)(“Plaintiff’s mark has priority
since PetMed has been selling its products since 1996, while
Defendant

created

the

domain

names

www.MedPets.com

and

www.1888MedPets.com in 2001.”)).
Likewise, as set forth above, the allegations in the
Complaint are sufficient to establish that the Infringing
Mark is confusingly similar to Plaintiff’s COOLMATH Mark. See
Id. (finding that a showing of likelihood of confusion for

13 

purposes of claim under Section 32(1) will also establish
likelihood of confusion under Section 43(a)). Therefore,
Plaintiff

has

established

that

Defendants’

marketing,

advertising, and offering of online math-related games under
the

Infringing

Mark

amounts

to

unfair

competition

in

violation of 15 U.S.C. § 1125(a)(1)(A) and Fla. Stat. §
501.204.
C.
To

Cybersquatting
establish

a

claim

under

the

Anticybersquatting

Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d), a
plaintiff must establish that “(1) it has a valid trademark
entitled to protection; (2) its mark is distinctive or famous;
(3) the defendant's domain name is identical or confusingly
similar to . . . the owner's mark; and (4) the defendant used,
registered, or trafficked in the domain name (5) with a bad
faith intent to profit.” Sound Surgical Techs., LLC v. Leonard
A. Rubinstein, M.D., P.A., 734 F. Supp. 2d 1262, 1275 (M.D.
Fla. 2010)(internal quotation omitted).
Here,
establish

Plaintiff
its

has

alleged

Cybersquatting

claim.

sufficient
As

set

facts

forth

to

above,

Plaintiff’s COOLMATH Mark is incontestable. (Doc. # 1 at ¶
19). To that end, U.S. Registration No. 3,404,699 serves as
“conclusive evidence of the validity of the registered mark,

14 

of the registration of the mark, and of Plaintiff’s exclusive
right to use the mark in commerce on or in connection with
the goods and services for which the mark is registered.”
(Doc. # 27 at 18; Doc. # 1 at ¶ 48). Further, Plaintiff has
alleged that its COOLMATH Mark was distinctive at the time of
Defendants’

registration

of

the

coolmathgamesforfun.com

domain name. (Id.)(citing PetMEd Express, 336 F. Supp. 2d at
1219 (“Plaintiff has established the distinctiveness of its
trademarks not only through Defendants’ default, but also by
having registered the marks.”)).
Plaintiff has also alleged that, without authorization
from

Plaintiff,

“Defendants

launched

a

website

at

coolmathgamesforfun.com offering online math-related games
under the Infringing Mark.” (Doc. # 1 at ¶¶ 22-24; Doc. # 27
at

19).

Defendants’

website

is

“virtually

identical

to

Plaintiff’s COOLMATH Mark, and adds only the generic words
‘GAMES’ and ‘FOR FUN.’” (Doc. # 27 at 19; Doc. # 1 at ¶ 49);
Sound Surgical Techs., 734 F. Supp. 2d at 1275 (citation
omitted)(“Slight differences between domain names and marks,
such as the addition of generic words or words describing the
product or service, ordinarily will not prevent a likelihood
of confusion.”).

15 

Plaintiff has also averred that Defendants used the
coolmathgamesforfun.com domain name with the bad faith intent
to:
profit from the COOLMATH Mark and to reap the
benefit of Plaintiff’s significant goodwill in the
COOLMATH Mark, to divert consumers to the
coolmathgamesforfun.com domain name for their own
commercial gain, and to otherwise profit from
unauthorized use of the COOLMATH Mark.
(Doc. # 1 at ¶ 51). By failing to respond to the Complaint,
Defendants
allegations.

have

admitted

all

Accordingly,

the

of

the

Court

above

enters

well-plead
judgment

on

Plaintiff’s cybersquatting claim against Defendants.
III. Permanent Injunction
“Under traditional equitable principles, a plaintiff
seeking a permanent injunction must demonstrate (1) it has
suffered an irreparable injury; (2) remedies available at
law, such as monetary damages, are inadequate to compensate
for that injury; (3) considering the balance of hardships
between the plaintiff and defendant, a remedy in equity is
warranted; and (4) the public interest would not be disserved
by a permanent injunction.” Angel Flight of Ga., Inc. v. Angel
Flight Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008).
“[I]n

ordinary

trademark

infringement

actions[,]

complete injunctions against the infringing party are the

16 

order of the day. The reason is simple: the public deserves
not to be led astray by the use of inevitably confusing marks.
. . .” Id. at 1209. Furthermore, the Eleventh Circuit has
noted

that

“[i]t

is

generally

recognized

in

trademark

infringement cases that (1) there is no[ ] adequate remedy at
law to redress infringement and (2) infringement by its nature
causes irreparable harm.” Tally-Ho, Inc. v. Coast Cmty. Coll.
Dist., 889 F.2d 1018, 1029 (11th Cir. 1989) (quoting Processed
Plastic Co. v. Warner Commc’ns, 675 F.2d 852, 858 (7th Cir.
1982)).
Therefore,
directors,
distributors,

Defendants

and

shareholders,
attorneys,

their

officers,

principals,

servants,

employees,

agents,

licensees,
affiliates,

subsidiaries and assigns, and all those persons or entities
in active concert or participation with any of them, are
hereby jointly and severally permanently enjoined and forever
restrained from:
a) [U]sing the Infringing Mark on or in connection
with the advertising, promotion, distribution,
displaying, sale or offering for sale of online
educational math games or in connection with any
related goods or services, including but not
limited to downloadable games in the Apple iTunes
or App Stores;

17 

b) [U]sing the COOLMATH Mark, or any mark that
includes COOLMATH in whole or in part, or a
phonetic equivalent or misspelling thereof, or
any
other
simulation,
reproduction,
copy,
colorable imitation or confusingly similar
variation of the mark COOLMATH, in connection
with the advertising, promotion, distribution,
displaying, sale or offering for sale of any
online math games or in connection with any
related goods or services, including but not
limited to downloadable games in the Apple iTunes
or App Stores;
c) [C]onducting any activities in the United States
that relate to, refer to or concern the
advertising,
promotion,
distribution,
displaying, sale or offering for sale of online
math games, or related goods or services, under
the Infringing Mark or any mark or trade or
business name that includes COOLAMTH in whole or
in part, or is a phonetic equivalent or
misspelling thereof, or that is a simulation,
reproduction, copy, colorable imitation or
confusingly similar variation of the mark
COOLMATH;
d) [U]sing any false designation of origin or false
description or performing any act, which can, or
is likely to, lead members of the trade or public
to believe that any online math game or related
good
or
service
advertised,
promoted,
distributed, displayed, sold or offered for sale
by Defendants is in any manner associated or
connected with Plaintiff, or is authorized,
licensed, sponsored or otherwise approved by
Plaintiff;
e) [E]ngaging in any other activity constituting
unfair
competition
with
Plaintiff,
or

18 

constituting
Mark;

an

infringement

of

the

COOLMATH

f) [A]pplying to register or registering in the
United States Patent and Trademark Office or in
any state trademark registry any mark consisting
in whole or in part of the word COOLMATH or
consisting in whole or in part of any simulation,
reproduction, copy or colorable imitation of the
COOLMATH Mark, for online games, or any related
goods or services;
g) [I]ncorporating under, doing business under or
seeking to trade under any business name that
includes the term “COOLMATH” in the United
States;
h) [U]sing any domain name or metatag that includes
in whole or in part the term “COOLMATH” or any
formative thereof in connection with a web site
that advertises, promotes, markets, displays,
sells or offers for sale or otherwise refers to
online math games, or any related goods or
services;
i) [O]wning, renting, purchasing or otherwise
obtaining rights to any internet search term that
includes in whole or in part the term “COOLMATH”
or any formative thereof for purposes of
directing internet traffic to any web site that
advertises, promotes, displays, or otherwise
refers to online math games, or any related goods
or services; and
j) [A]ssisting, aiding or abetting any other person
or business entity in engaging in or performing
any
of
the
activities
referred
to
in
subparagraphs (a) through (i) above.

19 

Furthermore, Defendants are hereby ordered to deliver to
Plaintiff’s attorney – within thirty days of the issuance of
this Order - for destruction, all goods, labels, tags, signs,
stationery,

prints,

packages,

promotional

and

marketing

materials, advertisements and other materials (a) currently
in their possession or under their control or (b) recalled
by

Defendants

otherwise,

pursuant

to

incorporating,

any

order

of

featuring,

the

or

Court

bearing

or
the

Infringing Mark or any other simulation, reproduction, copy
or colorable imitation of the COOLMATH Mark in connection
with online math games, or related goods or services, and
all plates, molds, matrices and other means of making the
same.

Finally,

transferred

Defendant

the

shall

transfer

coolmathgamesforfun.com

or

cause

domain

to

be

name

to

Plaintiff and execute all necessary documents to effectuate
such transfer.
IV.

Monetary Damages
“Although

a

defaulted

defendant

admits

well-pleaded

allegations of liability, allegations relating to the amount
of damages are not admitted by virtue of default. Rather, the
Court determines the amount and character of damages to be
awarded.” Automobil Lamborghini SpA v. Lamboshop, Inc., No.
2:07-cv-266-JES-SPC, 2008 WL 2743647, *2 (M.D. Fla. June 5,

20 

2008)

(internal

quotation

marks

omitted).

“If

a

default

judgment is warranted, the court may hold a hearing for the
purpose[ ] of assessing damages. However, a hearing is not
necessary if sufficient evidence is submitted to support the
request for damages.”
Court

finds

a

Id. (internal citations omitted).

hearing

unnecessary

to

determine

The
the

appropriate amount of damages against Defendants because (1)
the

Court

determine

has

sufficient

damages

without

record
a

evidence

hearing

and

(2)

to

properly

Plaintiff’s

requested damages are statutory.
Plaintiff seeks statutory damages in light of its ACPA
“Cybersquatting”

claim,

15

U.S.C.

§

1125(d),  against

Defendants. (See Doc. # 27 at 23). “In a case involving a
violation of [15 U.S.C. § 1125(d)(1)], the plaintiff may
elect, at any time before final judgment is rendered by the
trial

court,

to

recover,

instead

of

actual

damages

and

profits, an award of statutory damages in the amount of not
less than $1,000 and not more than $100,000 per domain name,
as the court considers just.” See 15 U.S.C. § 1117.

21 

Specifically, Plaintiff seeks an award of $15,000 in
statutory damages,1 noting that such an award would “plainly
serve the dual purpose of deterring wrongful conduct and
compensating Plaintiff.” (Doc. # 27 at 23)(internal quotation
omitted). To support their request, Plaintiff provides that:
Defendants have registered and used a domain name
confusingly similar to Plaintiff’s registered
COOLMATH Mark in connection with advertising and
offering
goods
and
services
identical
or
confusingly similar to those offered by Plaintiff.
Likewise, though Defendants are using a single
infringing domain name, “they are continuing to
pervasively engage in cybersquatting and other acts
of infringement, despite being aware of this
lawsuit.”
(Id.)(citing DC Comics v. G5 Barbers, L.L.C., No. 6:11-cv1600-Orl-36GJK, 2012 WL 4328610, *7 (M.D. Fla. Aug. 22,
2012)(awarding $25,000 for violation of the ACPA)).
“District

courts

have

wide

discretion

in

awarding

statutory damages.” PetMed Express, 336 F. Supp. 2d at 1219.
In determining an appropriate award of statutory damages, the
Court must strike a balance between permitting a windfall for
the plaintiff and emphasizing to the defendant “that the

1

In the present Motion, Plaintiff does not request the
“exemplary and punitive damages or the attorneys’ fees and
costs demanded in the Complaint.” (See Doc. # 27 at 23).

22 

trademark laws and court proceedings are not mere incidental
costs to doing business in the profitable counterfeit trade.”
Gucci Am., Inc. v. Tyrrell-Miller, 678 F. Supp. 2d 117, 12223 (S.D.N.Y. 2008).
The Court finds that Plaintiff’s request for $15,000 in
statutory damages to be appropriate under the circumstances
surrounding this action. Here, Defendants have chosen to
default rather than to cooperate in providing particular
records from which to assess the value of the Infringing Mark.
Additionally, as explained above, the Court concludes that
Defendants’ infringing conduct was indeed willful.2
Furthermore,

the

Court

finds

that

such

an

award

accomplishes the objectives underlying the following relevant
factors:

“the

defendants”

deterrent

and

“the

effect
potential

on

others

for

besides

the

discouraging

the

defendant.” Carlo Bay Enter., Inc. v. Two Amigo Rest., Inc.,
No. 8:14-cv-1989-T-33TGW, 2014 WL 6886053, *8 (M.D. Fla. Dec.
8, 2014). The Court is mindful that “[t]he statutory damages
provision serves to sanction or punish defendants in order to
deter future wrongful conduct.” WFTV, Inc. v. Maverik Prod.
Ltd. Liab. Co., No. 6:11-cv-1923, 2013 WL 3119461, *13 (M.D.

2

See PetMed Express, Inc., 336 F. Supp. 2d at 1220 (“[T]he
Court may infer willfulness from Defendants’ default.”).

23 

Fla. June 18, 2013)(citing St. Luke’s Cataract & Laser Inst.,
P.A. v. Sanderson, 573 F.3d 1186, 1204-05 (11th Cir. 2009)).
The Court is satisfied that statutory damages in the
amount of $15,000, coupled with the injunctive relief set
forth above, will serve as a sufficient deterrent against any
future wrongful conduct by Defendants. Thus, based on the
relevant factors discussed previously and the circumstances
of this case, the Court finds that statutory damages in the
amount of $15,000 is an appropriate, just, and reasonable
award. 
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff

Coolmath.com,

LLC’s

Motion

for

Default

Judgment (Doc. # 27) is GRANTED to the extent set forth
herein.
(2)

The Clerk is directed to enter Judgment in favor of
Plaintiff

Coolmath.com

LLC

and

against

Defendants

Evertap LLC, Cool Math Games For Fun, LLC and Ryan Wade
in the amount of $15,000. Thereafter, the Clerk is
directed to CLOSE THIS CASE.
(3) The Court declines to retain jurisdiction over this
matter. In the event Defendants fail to adhere to this

24 

Court’s Order, Plaintiff may pursue appropriate remedies
at that time.
DONE and ORDERED in Chambers in Tampa, Florida, this
17th day of December, 2014.

Copies: All Counsel and Parties of Record

25