Ordonez v. Icon Sky Holdings LLC et al
Filing
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Final DEFAULT JUDGMENT in favor of Plaintiff against Nisha Elizabeth George, Icon Sky Holdings LLC, and PERMANENT INJUNCTION. Signed by Judge Patricia A. Seitz on 8/30/2011. (mg)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
ELIZABETH ORDONEZ
PLAINTIFF,
v.
ICON SKY HOLDINGS LLC FIKIA
PURE ICON LTD CO NKIA PURE
ICON INC AIKIA PURE ICON
INTERNATIONAL NKIA PURE
ICON ENTERTAINMENT,
and
NISHA ELIZABETH GEORGE NKIA
NISHA BEHAVE NKIA ELIZABETH
BEHAVE NKIA LIZ BEHAVE NKIA
MISS BEHAVE AIKIA ELIZABETH
SKYE NKIA ELIZABETH SKY,
individually,
DEFENDANTS.
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Case Number: 0:1O-cv-60156-PAS
FINAL DEFAULT JUDGMENT AND PERMANENT INJUNCTION
Having granted Plaintiffs Renewed Motion for Final Default Judgment and Permanent
Injunction,
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of Plaintiff,
Elizabeth Ordonez, and against Defendants, Icon Sky Holdings LLC and Nisha Elizabeth
George, on all counts of the Complaint as follows:
1.
Plaintiff shall recover from Defendants, jointly and severally, $81,000.00 in
damages for lost profits and business damage;
2.
Plaintiff shall be awarded attorney's fees pursuant to 15 U.S.C. § 1117(a) of the
Lanham Act in the amount of $25,000.00;
3.
Plaintiff is entitled to her costs pursuant to 15 U.S.C. § 1117(a) of the Lanham
4.
The total monetary amount adjudged against Defendants, jointly and severally, is
Act;
$106,000.00, which shall bear interest at the maximum legal rate, for WHICH LET
EXECUTION ISSUE.
IT IS FURTHER ORDERED AND ADJUDGED THAT:
1.
The Court makes the following specific findings of fact confirming Plaintiffs
ownership of the Elizabeth Sky service mark and trademarks in IC 9, 41, 25 and in similar
classes of goods and services. The Commissioner of Trademarks, USPTO and the TTAB are
Ordered to take action in a manner consistent with such findings with respect to TTAB CASE
NOS. 91193039 and 91194626 and Applications Serial Nos. 77723555 and 77794974.
a.
Plaintiff has valid state and federal service and trademark rights in
Elizabeth Sky which predate and are superior to those of Defendants in
International Classes ("IC") 9, 25 and 41. Plaintiff has used the Elizabeth Sky
mark as early as June 30, 2006, and, in interstate commerce as early as September
1, 2006, as a stage name in association with the services she provides as a
performer in the entertainment industry, as a professional dancer, model,
choreographer, actress, host, and recording artist. Plaintiff also has been using the
Elizabeth Sky mark in interstate commerce on and in association with her own hat
line brand called "Funktality by Elizabeth Sky" since as early as December 25,
2006.
b.
Defendants, jointly and severally, have never used the mark
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Elizabeth Sky in interstate commerce prior to Plaintiff in any IC. Defendants have
never actually sold any products and/or services under the mark Elizabeth Sky
prior to February 2,2010. Any and all statements to the contrary made by the
Defendants in Defendants' IC 41 (Serial Number 77723555) and IC 25 (Serial
Number 77794974) Applications to the USPTO for Federal Service and
Trademarks, Defendants' Opposition to Plaintiffs Federal Trade and Service
Mark Application in IC 9 & 41 (TTAB Case # 91193039), and Opposer's
Opposition to Applicant's Application for Federal Trademark in IC 25 (TTAB
Case #91194626) are false and fraudulent.
c.
Defendants' use of the marks is solely to obtain acceptance of
Defendants' services and products based on the merit, reputation, and goodwill of
Plaintiff and her services and products. As such, Defendants' use of the marks,
which are identical to Plaintiffs, is deceptive, fraudulent, misleading, and likely to
cause public confusion as to the source of origin of the products and services of
Plaintiff.
d.
Defendants had prior knowledge of Plaintiffs claims to the
Elizabeth Sky marks prior to filing their applications cited above. Defendants'
Declarations, that no others had rights to the marks in Defendants' IC 25 and 41
Trademark Applications, were intentional and are false and fraudulent.
e.
Defendants fraudulently submitted specimens in their
abovementioned IC 25 and 41 Applications that were never used in interstate
commerce, contrary to the statements they made in same.
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2.
Defendants, and all officers, directors, agents, servants, employees, attorneys,
successors, and assigns, and all persons in active concert or participation therewith shall be
permanently enjoined and restrained:
a.
From infringing the Elizabeth Sky service mark and trademark,
and any variation thereof;
b.
From tortiously interfering with Plaintiffs contractual relations;
c.
From making defamatory statements about Plaintiff to third
parties;
d.
e.
3.
From otherwise unfairly competing with Plaintiff; and
From blocking Plaintiff from viewing their sites on the web.
In order to effectuate the permanent injunction:
a.
Defendants shall compose letters withdrawing any and all
objections to Plaintiffs Elizabeth Sky trademarks and service marks and
use of same as a profile or in the URL. Defendants shall send the letters,
with a copy of this Final Judgment and Permanent Injunction to each and
every provider of Plaintiffs prior social network website pages, online
talent database web pages, and web pages on online entertainment
publications and other websites that were removed, cancelled and/or
changed against Plaintiffs will due to third party trademark infringement
complaints including without limitation MySpace, Facebook, Twitter,
ModeIMayhem.com, YouTube, www.the305.com. and
www.NoBodiesCrew.comIn the letter, Defendants shall also request
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reinstatement of such social network website pages, online talent database
web pages, and web pages on online entertainment publications and other
websites in the name of Plaintiff.
b.
Upon service of this Final Judgment upon any and all online social
networks and other websites on which Defendants and/or others use the
name Elizabeth Sky referring to the goods or services of Defendants,
and/or any variation thereof, as part of the URL, profile name and/or
mentioned anywhere on or in same in association with either Defendant,
Defendants' Elizabeth Sky profiles, web pages, Defendants' presence in
online talent databases, URLs, and, more generally, Defendants' online
presence at such website, shall be cancelled and removed by such provider
or owner of same; additionally, if Plaintiff is otherwise in compliance with
said provider's terms of use, Plaintiffs, including but not limited to,
profiles, web pages, URLs, and Plaintiffs presence in online talent
databases and other publications and media, shall be reinstated and fully
restored (where possible).
4.
Defendants are Ordered to file with this Court and serve on Plaintiff within thirty
(30) days after the service of the injunction, a report in writing, under oath, setting forth in detail
the manner and form in which the Defendants have complied with the injunction.
IT IS FURTHER ORDERED AND ADJUDGED that pursuant to Federal Rule of
Civil Procedure 69(a), and Florida Rule of Civil Procedure 1.560, the judgment debtors,
Defendants, shall complete, under oath, a Florida Rule of Civil Procedure Form 1.977 (Fact
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Information Sheet), including all required attachments, and serve it on the judgment creditor's
attorney, Charlotte Towne, Esq., Charlotte Towne, P.A., 100 N.W. 70th Avenue, Suite 203,
Plantation, Florida 33317, within 45 days from the date of this Final Judgment, unless the Final
Judgment is satisfied or post-judgment is stayed. Failure to complete the fact information sheet
shall be just cause for further sanctions, including, but not limited to bodily attachment and/or a
bench warrant. See, e.g., Biggross, Inc. v. Matthews, 2007 WL 2827566 (M.D. Fla. 26, 2007)
(awarding sanctions for a defendant's failure to fill out a fact information sheet).
IT IS ALSO ORDERED that copies of this Judgment be served on Defendants by
Plaintiff. Service by certified mail shall be deemed sufficient service.
DONE AND ORDERED in Miami, Florida this
~y of August, 2011.
~~~
UNITED STATES DISTRICT JUDGE
cc: All Counsel of Record
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