SLEP-TONE ENTERTAINMENT CORPORATION v. JOHNSON et al

Filing 87

ORDER granting 78 Motion for Default Judgment. Signed by JUDGE RICHARD SMOAK on 11/2/2011. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

In Re SLEP-TONE ENTERTAINMENT CORP.
consolidated cases,
CASE NO. 5:11-cv-32/RS-CJK
_________________________________________/
U

ORDER

Before me is Plaintiff’s Motion for Default Judgment (Doc. 78) against
Defendants Jada Investment Group, Inc. (“Jada”), individually, and against Robert L.
Paynter, Sr. (“Paynter”) and Big Bob’s Music Machine (“Big Bob’s”), jointly and
severally. None of the defendants against whom default judgment is sought have
opposed the motion.
FINDINGS OF FACT
1. On March 2, 2010, Slep-Tone commenced this action against Defendants Jada,
Paynter, Big Bob’s (together, “the Defaulting Defendants”) in the subordinate case
5:10-cv-71-RS/EMT. (5:10-cv-71, Doc. 1.)
2. On July 20, 2010, the Clerk issued a summons directed to the defaulting
defendants. Id. at Doc. 11. Service of process was effected upon the defaulting
defendants on October 18, 2010. Id. at Docs. 22, 23, & 28. The defaulting
defendants failed to file a timely answer or other response to the Complaint, and
default was entered as to them on January 7, 2011. Id. at Doc. 43.

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. The defaulting defendants have used a reproduction, counterfeit, or copy of the
Marks in connection with his providing karaoke services, by displaying that
reproduction, counterfeit, or copy during the provision of his services.
5. Slep-Tone has elected to receive an award of statutory damages.

CONCLUSIONS OF LAW
1. Because of his default in this matter, Defendants Jada Investment Group, Inc.
Robert L. Paynter, Sr. and Big Bob’s Music Machine are deemed to have admitted
those facts alleged in the Complaint, that are material to Slep-Tone’s claims
against him. See Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987).
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 violated Section 43(a) of the Trademark Act of 1946, as amended, in that the
display of Slep-Tone’s marks constitutes a false designation of the origin of those
materials.
3. The defaulting defendants acts further constitute a per se violation of FDUTPA.
See TracFone Wireless, Inc. v. Access Telecom, Inc., 642 F. Supp. 2d 1354, 1365
(S.D. Fla. 2009)

4. An injunction forbidding the use of all unauthorized copies of karaoke tracks, 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.
5. The Trademark Act permits the destruction of infringing articles as an additional
remedy for trademark infringement involving counterfeiting.
6. Because of the ease with which karaoke tracks may be duplicated from a computer
hard drive and the difficulty in monitoring and enforcing compliance with the
permanent injunctive relief, an order requiring the defaulting defendants’
computer hard drives and other media containing counterfeit karaoke tracks to be
surrendered for destruction is appropriate under the law and warranted by the facts
of this case.

ORDER, JUDGMENT, AND PERMANENT INJUNCTION
Plaintiff Slep-Tone Entertainment Corporation for Motion for Default Final
Judgment (Doc. 78) is GRANTED.
It is ORDERED:
1. Pursuant to 15 U.S.C. § 1117, judgment is entered in favor of Plaintiff Slep-Tone
and against Defendant Jada Investment Group, Inc. for statutory damages in the
principal amount of $25,000, for which sum let execution issue.
2. Pursuant to 15 U.S.C. § 1117, judgment is entered in favor of Plaintiff Slep-Tone
and against Robert L. Paynter, Sr. and Big Bob’s Music Machine, jointly and

severally, for statutory damages in the principal amount of $25,000, for which sum
let execution issue.
3. Interest from the date of entry of this judgment shall accrue at the legal rate,
pursuant to 28 U.S.C. § 1961.
4. The defaulting defendants, their agents and employees, and all persons in active
concert or participation with them are hereby permanently ENJOINED (a) from
using (including making, copying, sharing, distributing, selling, or otherwise
using), 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
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 falsely 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.
5. Jada, Paynter, and Big Bob’s are hereby ordered within 30 days of the date of
entry of this Order to deliver to Slep-Tone, or make available for pickup, each data
storage device (including, without limitation, a computer hard drive, compact disc,
USB drive, portable music player, or other device capable of storing karaoke

accompaniment tracks in digitized format) in his possession, custody, or control,
which data storage device contains any karaoke accompaniment track, the
continued existence of which is prohibited under paragraph 3 above. Slep-Tone
may destroy the data storage devices, at its own expense, by any lawful,
appropriate means.
6. The Court retains jurisdiction over this cause and over the parties for the purposes
of entering all further post-judgment orders that are appropriate.
7. The Clerk shall post this Order in the both 5:11-cv-32-RS/EMT and 5:10-cv-71RS/EMT.
ORDERED on November 2, 2011.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE