Halo Creative & Design Limited et al v. Comptoir Des Indes, Inc. et al
Filing
270
MEMORANDUM Opinion and Order. For the reasons stated herein, the Court denies Defendant CDI's Petition for Recognition and Motion to Stay Proceedings pending bankruptcy [Dkt. Nos. 249, 261] and Defendant CDI's Motion for a New Trial or, i n the alternative, for this Court to amend the judgment [Dkt. No. 231]. The Court grants Plaintiff Halo's Motion to declare this case an exceptional case and grant enhanced damages [Dkt. Nos. 222, 223] and doubles the damages. The Court also grants in part and denies in part Halo's bill of costs. Enter memorandum opinion and order. Status hearing/ruling set for 10/3/18 is vacated. No appearance is needed. Signed by the Honorable Harry D. Leinenweber on 10/2/201. Mailed notice(maf)
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 1 of 27 PageID #:8234
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HALO CREATIVE & DESIGN
LIMITED, a Hong Kong Company;
HALO TRADEMARKS LIMITED, a
Hong Kong Company; and HALO
AMERICAS LIMITED, a Hong
Kong Company,
Plaintiffs,
Case No. 14 C 8196
v.
Judge Harry D. Leinenweber
COMPTOIR DES INDES INC., a
Quebec Corporation; CDI
INTERNATIONAL; and CDI
FURNITURE,
Defendants.
MEMORANDUM OPINION AND ORDER
After a jury verdict in Halo’s favor, the parties filed the
following four Motions: (1) Defendant CDI’s Petition for Recognition and
Motion
to
Stay
Proceedings
Pending
Bankruptcy,
along
with
its
corresponding Motion to Supplement [Dkt. Nos. 249, 261]; (2) Defendant
CDI’s Motion for a New Trial or, in the alternative, for this Court to
amend the judgment [Dkt. No. 231]; (3) Plaintiff Halo’s Motion to declare
this case an exceptional case and grant enhanced damages [Dkt. Nos. 222,
223]; and (4) Halo’s Bill of Costs [Dkt. No. 237].
For the reasons
stated herein, CDI’s Motions are denied, Halo’s Motion for Enhanced
Damages is granted, and Halo’s Bill of Costs is granted in part and
denied in part.
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 2 of 27 PageID #:8235
I.
BACKGROUND
Halo Creative & Design Ltd., Halo Trademarks, Ltd., and Halo
Americas Ltd. (collectively, “Halo”) is in the business of designing and
distributing high-end furniture and lighting products.
Comptoir Des
Indes, Inc., CDI International, and CDI Furniture (collectively “CDI”)
competes in the same industry. Halo brought an intellectual property
action against CDI claiming that several of CDI’s furniture and lighting
products infringed Halo’s copyright, patent, and trademark rights. The
parties went to trial and the jury found in favor of Halo, finding that
CDI willfully infringed two of Halo’s design patents, Halo’s ODEON
trademark, and nine of Halo’s copyrights. For these injuries, the jury
awarded
Halo
$1,043,509.00
copyright
damages
for
of
$15,775.00
trademark
infringement,
for
infringement,
totaling
patent
and
$3,559,284.00
infringement,
$2,500,000.00
in
damages.
for
(See
Judgment, Dkt. No. 217.)
Before the Court are the parties’ post-judgment motions. The Court
addresses each below.
Citations to the trial transcripts are to draft
transcripts and might not correspond exactly to any final transcript
prepared in response to any party’s request. See United States v. Barta,
No. 12 CR 00487, 2013 WL 4854355, at *1 n.2 (N.D. Ill. Sept. 11, 2013),
aff’d sub nom. United States v. Buenrostro, 781 F.3d 864 (7th Cir. 2015).
II.
A.
ANALYSIS
CDI’S Motion to Stay Proceedings
CDI moves to stay proceedings based on CDI’s now-pending bankruptcy
proceeding in Canada. Chapter 15 of the U.S. Bankruptcy Code governs
this motion. In 2005, Congress enacted the Bankruptcy Abuse Prevention
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and Consumer Protection Act of 2005, Pub. L. No. 109–8, 119 Stat. 22
(2005), adding a new chapter to the Bankruptcy Code designed “to provide
effective mechanisms for dealing with cases of cross-border insolvency
. . .” 11 U.S.C. § 1501(a). “The new chapter 15 [was] intended to
encourage cooperation between the United States and foreign countries
with respect to transnational insolvency cases and to provide for the
fair and efficient administration of cross-border insolvencies.”
United
States v. J.A. Jones Const. Grp., LLC, 333 B.R. 637, 638 (E.D.N.Y. 2005).
The provisions of Chapter 15 apply to cases where “assistance is sought
in the United States by a foreign court or a foreign representative in
connection with a foreign proceeding.” 11 U.S.C. § 1501(b)(1).
To recognize a foreign bankruptcy proceeding as requested by CDI’s
Motion, Chapter 15 requires a petitioner to file an application for
recognition with the U.S. bankruptcy court pursuant to Subchapter III,
Recognition of Foreign Proceeding and Relief, 11 U.S.C. §§ 1515-1524.
See J.A. Jones, 333 B.R. at 638.
Upon receiving an application for
recognition, the bankruptcy court will enter an order recognizing the
foreign proceeding if: (1) such foreign proceeding is pending in a
country where the debtor has the “center of its main interests” or the
debtor
has
“an
establishment,”
11
U.S.C.
§
1502;
(2)
the
foreign
representative applying for recognition is a person or body; (3) the
petition is accompanied by all required documents under 11 U.S.C. § 1515;
and (4) such recognition would not be manifestly contrary to the public
policy of the United States, 11 U.S.C. § 1506. See 11 U.S.C. § 1517.
Once the foreign proceeding is recognized, the statute authorizes a court
to grant various forms of relief to the debtor, including the type of
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relief CDI requests in this motion. See 11 U.S.C. § 1509(b)(3) (“If the
court grants recognition . . . a court in the United States shall grant
comity
or
cooperation
to
the
foreign
representative.”);
11
U.S.C.
§ 1521(a)(1) (“Upon recognition of a foreign proceeding . . . the court
may . . . grant any appropriate relief, including . . . staying the
commencement or continuation of an individual action or proceeding
concerning the debtor’s assets, rights, obligations or liabilities.”).
Furthermore, the statute requires that any “request for comity or
cooperation by a foreign representative in a court in the United States”
“shall
be
accompanied
by
a
certified
copy
of
an
recognition under section 1517.” 11 U.S.C. § 1509(c).
order
granting
The trouble here
is that CDI did not accompany its Motion with such a certified order,
nor is it clear that CDI complied with the procedures of the U.S.
Bankruptcy Code laid out above.
“There is little case law addressing the issue of whether a ‘foreign
representative’ may request a stay of U.S. court proceedings involving
the entity subject to liquidation in the foreign proceeding.
What case
law there is, however, makes clear that foreign representatives must be
recognized under Chapter 15 to seek a stay from a federal court.” Reserve
Int’l Liquidity Fund, Ltd. v. Caxton Int’l Ltd., No. 09 CIV. 9021, 2010
WL
1779282,
at
*5
(S.D.N.Y.
compliance with Chapter 15).
are
documents
noticeably
from
absent
Bankruptcy Court.
the
is
Apr.
2010)
(denying
stay
absent
All the exhibits attached to CDI’s Motion
Canadian
any
29,
order
bankruptcy
granting
proceedings.
recognition
from
What
a
is
U.S.
“In the absence of recognition under chapter 15, this
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Court has no authority to consider [CDI]’s request for a stay.” J.A.
Jones, 333 B.R. at 639.
CDI must comply with Chapter 15 of the U.S. Bankruptcy Code to
receive recognition of its foreign bankruptcy and the corresponding
relief it seeks.
Compare Orchard Enter. NY, Inc. v. Megabop Records
Ltd., No. 09 CV 9607, 2011 WL 832881, at *3 (S.D.N.Y. Mar. 4, 2011)
(denying motion to stay based on foreign bankruptcy where debtor had not
complied with Chapter 15); Andrus v. Digital Fairway Corp., No. 3:08 CV
119O, 2009 WL 1849981, at *3 (N.D. Tex. June 26, 2009) (same); Econ.
Premier Assurance Co. v. CPI Plastics Grp., Ltd., No. CV 09-2008, 2010
WL 11561369, at *3 (W.D. Ark. June 7, 2010) (finding no basis to stay
where debtor had not complied with Chapter 15), with Giant Screen Sports
LLC v. Sky High Entm’t, No. 05 C 7184, 2007 WL 627607, at *3 (N.D. Ill.
Feb. 27, 2007) (granting stay where debtor received recognition of
foreign bankruptcy proceeding through Chapter 15).
The cases CDI cites
in support of its Motion were all decided prior to Congress’s enactment
of the Bankruptcy Abuse Prevention and Consumer Protection Act and thus
do not control here.
As the current record fails to show that CDI has
received recognition in accordance with Chapter 15 of the U.S. Bankruptcy
Code, the Court denies CDI’s Motion to Stay.
The Court now turns to the merits of the remaining motions.
B.
CDI’s Motion for a New Trial Pursuant to Rule 59(a)
1.
Rule 59(a) Standard
CDI moves this Court for a new trial pursuant to Rule 59(a) of the
Federal Rules of Civil Procedure.
In ruling on a motion for a new trial,
the Court must “determine whether the verdict is against the weight of
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the evidence, the damages are excessive, or if for other reasons the
trial was not fair to the moving party.”
Winger v. Winger, 82 F.3d 140,
143 (7th Cir. 1996). The Court “will not set aside a jury verdict if a
reasonable basis exists in the record to support the verdict, viewing
the evidence in the light most favorable to the prevailing party, and
leaving issues of credibility and weight of evidence to the jury.”
Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004).
2.
Substantial Similarity
CDI argues that a new trial is warranted for three reasons: First,
the jury was not provided with the proper legal framework to consider
substantial similarity in light of protected elements; second, certain
facts were impermissibly excluded; and third, testimony was admitted
that confused the jury regarding substantial similarity.
CDI waived its objection to the jury instruction on substantial
similarity because CDI agreed to that instruction at trial. (See Jury
Instructions, Dkt. 209 (indicating Jury Instruction No. 27 was agreed);
Emmel v. Coca-Cola Bottling Co., 904 F. Supp. 723, 743 (N.D. Ill. 1995),
aff’d, 95 F.3d 627 (7th Cir. 1996).)
Furthermore, even if the objection
had not been waived, it is unlikely CDI could prevail on this ground.
Jury Instruction No. 27 specifically instructed the jury that “[the]
substantial similarity inquiry must take into account that the copyright
laws preclude appropriation of only those elements of the work that are
protected by the copyright,” which undercuts CDI’s argument that the
jury did not understand that it could only find infringement based on
the protected parts of Halo’s works. ([Final] Jury Instructions, Dkt. 209
at 27 (emphasis added).)
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The Court did not err in instructing the jury according to the
pattern instruction and adding additional language from the Seventh
Circuit’s Roulo opinion regarding substantial similarity.
See Seventh
Circuit Pattern Jury Instructions 12.4.1 (2017 rev); Roulo v. Russ Berrie
& Co., 886 F.2d 931, 939 (7th Cir. 1989). Further, the substance of CDI’s
requested instruction—the fact that Halo owned copyright in only the
original elements of its work—was substantially communicated through
Jury Instruction No. 27. (Compare Pl. Proposed Jury Instructions, Dkt.
183 at 31-33, with [Final] Jury Instructions, Dkt. 209 at 26.)
Jury
Instruction No. 27 states: “Plaintiff Halo must prove that CDI copied
the protected expression in Halo’s work . . . You may infer that CDI
copied Halo’s work if the similarities between the two works can be
explained only by copying, rather than by coincidence, independent
creation, or the existence of a common source for both works.” ([Final]
Jury Instructions, Dkt. 209 at 27.)
The instruction included, from
Roulo, the “total concept and feel” standard, as well as the cautionary
note, which stated that “[t]he substantial similarity inquiry must take
into account that the copyright laws preclude appropriation of only those
elements of the work that are protected by the copyright.” ([Final] Jury
Instructions, Dkt. 209 at 27.)
Thus, the jury was adequately instructed
on the legal standard for substantial similarity.
As for CDI’s second objection: The Court did not preclude CDI from
offering evidence on the protected (nor unprotected) elements of Halo’s
works. The Court only precluded CDI from attacking the copyrightability
of the products by arguing that the products were similar to things in
the public domain. That issue had already been decided on summary
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judgment. CDI’s argument was thus irrelevant and might have confused the
jury.
CDI cites to a portion of the transcript where the Court asked
defense counsel to move on after he asked a witness: “Do you understand
that the functional and utilitarian aspects of this table are not subject
to copyright?” (1/23/18 Trial Tr. 65:17-22.)
However, the Court’s
admonition was based on the witness’s answer (“No, I didn’t”), which
indicated a lack of personal knowledge. (Id. 65:7-19.) Immediately
following that testimony, the Court permitted defense counsel to ask
about specific parts of the works, specifically the columns, legs, and
carved mirrors, pointing out the differences between the protected
elements of Halo’s and CDI’s products. (Id. 65:20-72:8.) Although it is
true that defense counsel was precluded from introducing pictures of
other furniture similar to Halo’s works, excluding such evidence was
proper.
The purpose of such evidence was to show that Halo’s works were
unoriginal and thus attack the validity of the copyright, which, again,
had already been decided on summary judgment. (Id. 73:9-22.) Therefore,
precluding this evidence was not error.
Further, the Court permitted CDI to offer ample evidence focused
on the elements of Halo’s furniture that were protectable, as well as
on the differences between Halo’s protected elements and CDI’s products.
(See, e.g., 1/23/2018 Trial Tr. 66:5-71:19 (Georgian table); id. 71:2082:15 (Georgian mirror); id. 88:10-91:23 (ODEON chandelier); id. 91:24102:9 (gyro chandelier); id. 102:10-105:4 (Tomcat chair); id. 105:5107:15 (Mars Chair); id. 107:16-109:17 (Valkyrie desk); 1/25/18 Trial
Tr.
AM
(Georgian
59:16-69:20
Table);
(various
id.
lighting
76:11-79:10
fixtures);
(Georgian
- 8 -
id.
mirror);
72:24-76:10
1/26/18
Trial
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Tr. 66:9-70:19 (Georgian dining table and mirror); id. 1/26/18 72:1073:8 (Valkyrie desk).) CDI points to a few portions of the transcript
where
evidence
was
precluded,
but
none
of
the
identified
rulings
precluded CDI from contrasting the protectable elements of Halo’s and
CDI’s works to show non-infringement. (See 1/23/2018 Trial Tr. 62:17–22
(permitting evidence to “show the difference in the products” as long
as it was not directed at apportioning liability (1/23/2018 Trial
Tr. 64:6-19).)
As for CDI’s third objection: CDI argues that it was precluded from
offering evidence that the elements on which Halo relied on for its
furniture were unprotectable. However, the Court allowed CDI to emphasize
that only certain elements of Halo’s works were protected. For example,
Halo did not have copyright protection for the elements of its work that
came from the original antique model.
Rather, Halo only had rights in
the elements it added. The fact that copyright protection only attached
to specific original features was emphasized throughout the testimony
by both parties. (See, e.g., 1/23/2018 Trial Tr. 88:15; 1/23/2018 Trial
Tr. 98:5; 1/25/2018 Trial Tr. 48:16 (referring to specific features
claiming protection).) However, the Court properly precluded CDI from
relitigating what had already been decided at summary judgment, namely
whether
the
protection.
works
(See
had
protectible
1/23/2018
Trial
elements
Tr.
subject
72:17-73:22
to
copyright
(sustaining
an
objection because evidence went to invalidity of the copyright); id.
83:20–84:23 (same).) Evidence of the validity of the copyright was
irrelevant at trial and the Court ruled accordingly.
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Therefore, the Court finds no grounds for a new trial. CDI’s Motion
is thus denied.
C.
CDI’s Motion to Alter or Amend Judgment
Pursuant to Rule 59(e)
1.
Rule 59(e) Standard
CDI also moves this Court to alter or amend the judgment pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure. “[A] motion to
alter or amend a judgment is not appropriately used to advance arguments
or theories that could and should have been made before the district
court rendered a judgment, or to present evidence that was available
earlier. Instead, a Rule 59(e) motion must clearly establish either a
manifest error of law or fact or must present newly discovered evidence.”
LB Credit Corp. v. Resolution Tr. Corp., 49 F.3d 1263, 1267 (7th Cir.
1995) (citations and internal quotation marks omitted). Rule 59(e)
“essentially enables a district court to correct its own errors, sparing
the parties and the appellate courts the burden of unnecessary appellate
proceedings.” Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d
746, 749 (7th Cir. 1995).
2.
Willfulness
CDI argues that no rational jury could find willful infringement
of the asserted design patents, trademarks, or copyrights because no
evidence showed that CDI had adequate notice of the alleged infringement
before the suit was filed. CDI further argues that it had a good faith
belief that Halo’s works were not copyrightable.
a.
Willful Patent Infringement
CDI argues that it had no notice of Halo’s asserted patent rights
until the lawsuit was filed. Indeed, Mr. Ouaknine denied having any
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knowledge of the asserted patents before Halo filed its complaint.
(Ouaknine Declaration ¶¶ 8-11, Dkt. 77-1.) However, contrary evidence
was entered at trial. Halo introduced a letter dated May 11, 2012, from
Halo to CDI, stating that: Halo owned patent design registrations in
“many of its furniture designs, including for its well-known Tomcat
chair, Valkyrie desk and Mars chair”; CDI had wrongfully displayed a
copy of several of Halo’s furniture pieces at a furniture show in Canada;
and CDI had wrongfully sold and shipped infringing goods in North
America. (May 11, 2012 Letter, CDI’s Ex. 3 at 1, Dkt. 231-3.) CDI claims
that the letter fails to provide notice because the letter focused on
foreign design registrations and certain Canadian rights. Although that
may be true, the letter specifically asserted that CDI was selling
infringing goods and shipping them to North America and demanded that
CDI cease any display, depiction, promotion, or sale of the infringing
goods on its websites.
The jury was entitled to rely on this letter in
finding CDI was aware of Halo’s patent rights.
Based on this evidence,
a reasonable jury could find that the letter would lead a reasonable
businessman to conduct a U.S. patent search and determine whether Halo’s
rights
in
its
furniture
designs
extended
to
the
United
States.
Additionally, the jury was entitled to credit evidence that CDI continued
to sell its allegedly infringing products after such notice. Furthermore,
CDI was well aware of Halo’s asserted design patent rights when the
lawsuit was filed in October 2014 but continued to sell the infringing
sofa three months afterwards. (Sales Document PX27-38, Halo’s Ex. 10,
Dkt. 254-1.) This continued infringement in the face of clear notice
also supports the jury’s finding of willful infringement.
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b.
Willful Trademark Infringement
Agreed Jury Instruction No. 22 states that Halo had to prove that
CDI knew that it was infringing Halo’s trademark or at least acted with
indifference to Halo’s trademark rights. (Jury Instructions, Dkt. 209
at 21.) CDI claims it had no knowledge that Halo claimed trademark rights
in the ODEON mark. However, CDI surely knew that Halo claimed trademark
rights in “ODEON” when the Complaint was filed. Halo presented evidence
at trial that CDI was still using the ODEON mark in its search engine
on its own website and that CDI sold ODEON-branded products as recently
as December 2017, well after the litigation started. (See Gilt Order
Form, Halo’s Ex. 11, PX 950.1, Dkt. 254-1.) This evidence supports the
jury’s finding of willfulness.
c.
Willful Copyright Infringement
CDI argues that no rational jury could find willful copyright
infringement because the U.S. Copyright Office rejected Halo’s attempts
to register its work, and CDI relied on those decisions when it continued
to sell the infringing products. (Copyright Office Correspondence, CDI’s
Ex. 8, Dkt. 231-8 (rejecting Halo’s copyright applications because the
products constituted “useful articles”).) CDI arguably did not know for
certain its conduct was an infringement until the Court’s summary
judgment ruling, but the lack of a judicial determination on IP matters
does not preclude willfulness.
Beyond this, Halo presented an email exchange from April 2013
between David Ouaknine and one of CDI’s suppliers, Mr. Pak, wherein Mr.
Pak warned Mr. Ouaknine about Halo’s copyrights. (April 30, 2013, Email
Exchange, Halo’s Ex. 3, Dkt 254-1.) CDI sold the Mars Chair—a copyright-
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infringing
item—even
after
Mr.
Pak’s
warning.
(CDI
Sales,
Ex.
4,
Dkt. 254-1.) In fact, CDI continued to sell the infringing products even
after Halo filed its infringement action. (See 1/25/2018 Trial Tr. 40:614;
1/26/2018
5:12-6:9.)
Further,
Halo
introduced
emails
from
Mr.
Ouaknine’s assistant to Halo, expressing CDI’s interest in buying Halo’s
product wholesale. Halo then introduced CDI’s internal, follow-up emails
discussing the exclusive retailer arrangement and the price. The jury
may have inferred, based on this evidence, that CDI knew it could not
sell Halo’s products and could not afford to license them; instead, CDI
did exactly what it wanted and created copycat products to sell rather
than buying Halo’s products wholesale. The jury was allowed to draw such
an inference and, indeed, such an inference supports the jury’s finding
of willful copyright infringement.
3.
Damages
CDI argues that the jury’s damages award of $1,043,509.00 was
excessive and has no rational connection with the evidence at trial
because CDI’s direct profits only amounted to $26,965.54. CDI does not
challenge the damages awarded based on patent infringement, so the Court
will only address trademark and copyright damages. When reviewing a
jury’s damages award, district courts consider: “whether (1) the award
is monstrously excessive; (2) there is no rational connection between
the award and the evidence, indicating that it is merely a product of
the jury’s fevered imaginings or personal vendettas; and (3) whether the
award is roughly comparable to awards made in similar cases.” G.G. v.
Grindle, 665 F.3d 795, 798 (7th Cir. 2011) (citation omitted).
“A
monstrously excessive verdict is one that is a product of passion and
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prejudice.” Adams v. City of Chicago, 798 F.3d 539, 543 (7th Cir. 2015)
(internal quotation marks omitted). The Seventh Circuit has “observed
that the ‘monstrously excessive’ standard and the ‘rational connection’
standard are really just two ways of describing the same inquiry: whether
the jury verdict was irrational.” Id. (citations omitted).
To make this
determination, the court must review the trial record as a whole in the
light most favorable to the verdict. Id. This perspective is essential
to preserve the jury’s role as the trier of fact. Id.
a.
Trademark Damages
The jury was instructed to consider “actual damages,” including:
(1) “lost profits on lost sales”; (2) “Plaintiffs’ loss of goodwill”;
and (3) “profits that CDI made because of its infringement.” (Jury
Instructions
Nos.
19-20,
Dkt.
209.)
CDI
argues
that
no
rational
connection exists between the evidence at trial and the amount of the
jury award. Halo presented evidence that its damages from lost sales for
trademark infringement totaled $13,653.00, and CDI’s unjustly gained
profits for trademark infringement totaled $26,965. (See Tr. Schedules
2.0 and 6.0.) Mr. Oulton testified that Halo’s good will was “irreparably
and seriously” damaged by CDI’s infringement. (1/23/18 Draft Trial Tr.
53:10-24; Ex. 12, Dkt. 254-1.) He explained that the copies in the market
decreased the value of the original because a would-be buyer does not
want to look like he bought a copy even if he knows that it is the
original. Id. Mr. Oulton characterized this phenomenon as “destructive
dilution.” Id. Further, he testified that the poor quality of CDI’s
products has lasting effects on Halo’s brand and reputation because a
purchaser of CDI’s product may incorrectly attribute the product and any
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defective workmanship thereof to Halo. (1/23/18 Trial Tr. 53:25-54:10,
Dkt. 254-1.)
Halo presented evidence that return rates for CDI’s
infringing products were as high as 60% on Wayfair. (See CDI Email,
Halo’s Ex. 14, Dkt 254-1.) Mr. Oulton testified that the “most damaging”
injury caused by infringement is the dilution of Halo’s brand and
estimated that CDI’s infringement caused Halo “millions of dollars of
product dilution.” (1/23/18 Draft Trial Tr. 54:11-21, Dkt. 254-1.) In
further support, Mr. Oulton explained that Halo had already seen concrete
effects of brand dilution, giving the example that Restoration Hardware,
Halo’s largest customer, had moved several of the infringed product
either to the back of certain stores or removed them completely due to
copies in the market. (1/23/18 Draft Trial Tr. 54:22-55:9, Dkt. 254-1.)
Ms. Haslam also testified that CDI’s infringement “severely damaged”
Halo due to loss of good will. (1/23/18 Draft Trial Tr. 159:1-8,
Dkt. 254-1.) Ms. Haslam estimated that CDI copied around 25 different
product lines from Halo and that customers often bought CDI’s infringing
products, thinking they were Halo’s products, thereby injuring Halo’s
reputation due to the lesser quality of those products. (1/23/18 Trial
Tr. 148:12-149:15; 150:7-21; 165:12-187:21; Dkt. 254-1.) She further
testified that Restoration Hardware removed several Halo products from
its galleries or center showcase due to reputational harm. (1/23/18 Trial
Tr. 159:1-8; Dkt. 254-1.) Ms. Haslam estimated Halo’s goodwill damages
for trademark and copyright together amounted to somewhere between $2
to 3 million. (1/23/18 Trial Tr. 160:7-18, Dkt. 254-1.) The jury was
entitled to credit this evidence and Mr. Oulton’s and Ms. Haslam’s
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estimation of damages. Thus, the jury’s award of $1,043,509 was tied to
and supported by the evidence.
b.
Copyright Damages
CDI argues that the jury impermissibly included damages for loss
of goodwill in the copyright infringement award. The jury was instructed
that it could award damages for the actual losses caused by CDI’s
infringement, plus any profits CDI made attributable to the infringement.
(Jury Instruction No. 29, Dkt. 209.) Actual losses include “reduction
of the market value of the copyrighted work” and any profits Halo would
have made without the infringement. Id. Notably, these jury instructions
did not include loss of good will as a permissible damage category under
copyright infringement. Id. Halo’s damages expert. Mr. Pakter, testified
that he reviewed all of CDI’s sales documents and calculated Halo’s lost
profits due to CDI’s infringing sales at $217,894.00 and CDI’s profits
from
infringing
sales
at
$555,414.00,
totaling
$773,308.00.
(See
Tr. Schedules 2.0 and 6.0.) CDI asserts that any copyright damages above
and beyond $773,308.00 were impermissibly awarded for loss of goodwill.
However, damages could permissibly be awarded for any profits CDI made
attributable to the infringement.
Halo
presented
evidence
of
such
damages
in
two
other
broad
categories: (1) CDI’s indirect profits from its infringing sales that
“opened the door” to other sales, and (2) CDI’s indirect profits from
increased profitability due to the use of Halo’s designs. (See Tr.
Schedules 4.0 and 5.0.) For the “opened the door” damages, Halo presented
evidence at trial that a substantial percentage of CDI’s first sales to
new customers were copies of Halo’s products, supporting the inference
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that CDI’s infringement was the proximate cause of the new customer
relationship and the subsequent sales. (See 1/26/2018 Trial Tr. 121:1018.) For example, such evidence established that copies of Halo’s
products composed the majority of CDI’s first sales to multiple large
customers, including Gilt, Home Decorators, Ambiance Home, and Cella
Luxuria. (Halo’s Ex. 15, Dkt 254-1.) Mr. Pakter estimated that these
indirect profits totaled approximately $1,097,000.00. (1/26/2018 Trial
Tr. 145:2-15.)
For increased profitability damages, Mr. Pakter offered testimony
that CDI’s annual sales revenue grew exponentially after CDI began
infringing
Halo’s
copyrights
in
2012
and
that
CDI’s
above-average
industry growth was attributable to CDI’s infringement. (Halo’s Ex. 17,
Dkt 254-1; 1/26/2018 Trial Tr. 139:4-17.) Mr. Pakter calculated these
damages based on infringement in the amount of $461,000.00, leading to
a total amount of $1,558,000.00 for indirect profitability. Thus, Mr.
Pakter
estimated
1/26/2018
Trial
total
Tr.
copyright
damages
145:16-146:17;
Tr.
of
$2,331,308.00.
Schedules
2.0-6.0.)
(See
In
comparison, the jury’s verdict was less than what Halo’s expert estimated
was allowed for damages. See Borg-Warner Corp. v. York-Shipley, Inc.,
293 F.2d 88, 95 (7th Cir. 1961) (finding that “damages are not rendered
uncertain because they cannot be calculated with absolute exactness”).
Additionally, Halo offered evidence of a “reduction of the market
value” of its products.
Mr. Oulton and Ms. Haslam testified that
Restoration Hardware pulled Halo’s products from the main showcase area
of its stores due to the CDI copies diluting the value of those works,
which in turn caused a decrease in sales. (Halo’s Ex. 12 at 49, 55, 159,
- 17 -
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 18 of 27 PageID #:8251
Dkt. No. 254-1.) Mr. Oulton estimated that this product dilution caused
“millions of dollars” of damage. (Halo’s Ex. 12, Dkt. 254-1 at 54.) Thus,
the evidence at trial supported an award of up to $3.331 million. The
jury’s decided upon $2,500,000.00 fell within that range.
Furthermore,
the jury heard evidence that Mr. Pakter’s damage calculation might be
underestimated because CDI’s sales documents show multiple inaccuracies
and appear to be manipulated downwardly by at least 38%. Finally, Halo’s
damage calculations did not include any infringing sales from September
to the date of trial. (1/26/2018 Trial Tr. 118:19-119:16.) The jury could
have
inflated
Mr.
Pakter’s
calculations
to
account
for
such
underestimation. Thus, the copyright award is supported by the evidence
heard at trial.
CDI argues that the evidence at trial showed that Halo and CDI
catered to different customers.
believe this evidence.
However, the jury was not required to
Halo presented evidence that it lost customers
to CDI (e.g., Hudson’s Bay and Gilt) and end consumers (e.g., Michelle
Hayes). (See 1/23/2018 Trial Tr. 153:19-155:7; 167:21-181:3. The jury
was entitled to find that Halo’s evidence was more convincing on this
point. Similarly, CDI argues that Halo failed to show a causal connection
between the infringement and Halo’s decreased sales. CDI asserts that
it submitted evidence that the decrease in sales was just as likely a
result of the end of the products’ lifecycles. However, again, the jury
was entitled to credit Halo’s evidence and explanation of its decreased
sales as opposed to CDI’s.
Therefore, the jury’s damages award of $1,043,509.00 was not
excessive, so CDI’s Motion to Amend the Judgment is denied.
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D.
Halo’s Motion for Exceptional Case and Enhanced Damages
Halo moves this Court to declare this an exceptional case and award
enhanced damages pursuant to 35 U.S.C. § 285 and 15 U.S.C. § 1117(a). A
case is exceptional if it “stands out from others with respect to the
substantive strength of a party’s litigating position (considering both
the governing law and the facts of the case) or the unreasonable manner
in which the case was litigated.” Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 134 S. Ct. 1749, 1756 (2014).
In determining whether a
case is exceptional, courts look at the totality of the circumstances,
including “frivolousness, motivation, objective unreasonableness (both
in the factual and legal components of the case) and the need in
particular circumstances to advance considerations of compensation and
deterrence.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994).
“[A]s a general matter, many forms of misconduct can support a district
court’s exceptional case finding, including inequitable conduct before
the U.S. Patent and Trademark Office (“PTO”); litigation misconduct;
vexatious, unjustified, and otherwise bad faith litigation; a frivolous
suit; or willful infringement.” Monolithic Power Sys., Inc. v. O2 Micro
Int’l Ltd., 726 F.3d 1359, 1366 (Fed. Cir. 2013).
A case need not have
every form of misconduct to grant enhanced damages. “Indeed, it is wellestablished that litigation misconduct and unprofessional behavior may
suffice, by themselves, to make a case exceptional under § 285.” Rambus
Inc. v. Infineon Techs. AG, 318 F.3d 1081, 1106 (Fed. Cir. 2003)
(citation omitted). “Litigation misconduct typically involves unethical
or unprofessional conduct by a party or his attorneys during the course
of adjudicative proceedings.”
MarcTec, LLC v. Johnson & Johnson, 664
- 19 -
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 20 of 27 PageID #:8253
F.3d 907, 919 (Fed. Cir. 2012) (citation and internal quotation marks
omitted).
The
Court
grants
Halo’s
Motion,
determining
exceptional case and granting enhanced damages.
this
to
be
an
However, the lost
profits will be doubled rather than tripled, because the Court finds
that CDI’s actions were willful, but were not so egregious as to warrant
trebling of the damages: The case exemplified willful infringement on
the one hand, but also involved close questions of law on the other.
Strong evidence of CDI’s willful infringement was proven at trial,
discussed in further detail supra. For example, CDI’s emails indicate
that CDI directed its manufacturers to copy (or at least closely mimic)
Halo’s products. See Ouaknine’s email stating that he needed “the same
leather as halo” for his order. (Email from Ouaknine, Ex. 2, Dkt. No.
223-1.) In response to a question asking about the “finish panel,” CDI
responded by writing: “The chair is exactly as the one on the Restoration
Hardware site, please go to the site and see the chair directly.” (Email
from Michael M., Ex. 2, Dkt. No. 223-1.) Additionally, CDI continued
selling
the
throughout
infringing
trial.
(Sales
products
after
documents,
Ex.
the
9,
lawsuit
Dkt.
commenced
223-1
and
(indicating
portions in highlighted sales after litigation commenced).) Even where
CDI acknowledged liability on the trademark claims, CDI still used the
Odeon descriptor with the “Fringe Table Lamp,” well after it knew “ODEON”
was protected. (Ex. 13, 14, Dkt. 223-1.) Further, that lamp CDI offered
for sale on Gilt’s e-commerce platform until January 23, 2018, the second
day of trial. (See 1/25/2018 68:8-69:21.) All this evidence amounts to
CDI not taking seriously the infringement with which it was charged. See
- 20 -
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 21 of 27 PageID #:8254
Ind. Cheer Elite, Inc. v. Champion Cheering Org., LLC, No. 3:05-CV-125
RM, 2005 U.S. Dist. LEXIS 12342, at *8-9 (N.D. Ind. June 22, 2005)
(finding
exceptional
case
and
awarding
attorneys’
fees
where
infringement was deliberate and continued to occur after defendant was
put on notice).
Further, CDI’s multiple misrepresentations through the litigation
and trial support a finding of enhanced damages. Monolithic Power Sys.,
Inc. at 1364 (affirming trial court’s finding of exceptionality based
on various misrepresentations made to the court); GTFM, Inc. v. Solid
Clothing, Inc., 215 F. Supp. 2d 273, 305 (S.D.N.Y. 2002) (finding
exceptional
case
where
defendant
willfully
infringed
and
committed
perjury in deposition and at trial). Mr. Ouaknine declared under oath
that he “had no knowledge of Halo’s asserted patents before [CDI] offered
the accused products for sale in the United States” (Ouaknine Decl. ¶ 8),
and “no knowledge that Halo claimed copyright protection in its furniture
and lighting designs,” (Ouaknine Decl. ¶ 11).
However, Halo offered
evidence that it sent CDI a cease-and-desist letter in 2012 and that CDI
was further informed of Halo’s rights by its own manufacturer as early
as April 2013. (See Email from Henry at Pak Furniture, Ex. 18, Dkt.
No. 223-1; May 11, 2012, Letter, Ex. 16, Dkt. No. 223-1.)
Second,
Mr.
Ouaknine
asserted
that
CDI
stopped
selling
the
infringing products after the lawsuit was filed, when in fact it did
not. (Compare Interrogatory Response No. 3, Ex. 8, with Sales documents,
Ex. 9, Dkt. 223-1 (indicating in highlighted portions sales after
litigation commenced).) When confronted with these facts, CDI claimed
it was a technical error and amended its interrogatory response to
- 21 -
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acknowledge it made “limited sales of some of the accused products after
the filing of the Amended Complaint.” (Interrogatory Response No. 3,
Ex. 8.)
The “technical error” resulted in 253 additional sales of
infringing product, totaling $239,342.13 in sales, after litigation
commenced. Cf. R-BOC Representatives, Inc. v. Minemyer, 233 F. Supp. 3d
647,
651
(N.D.
Ill.
2017)
(finding
case
exceptional
and
awarding
attorneys’ fees where competitor allegedly redesigned the product so as
not to infringe, but evidence showed product was never redesigned).
Third, CDI’s social media account claimed credit for its “Aero
Desk” being on the Two and a Half Men, even though the evidence at trial
showed that the desk featured on that show was Halo’s Aviator Valkyrie
Desk (Facebook screenshot, Ex. 3, Dkt. No. 223-1.)
Fourth, Mr. Ouaknine testified that he never asked manufacturers
specifically to make the infringing products like Halo’s products.
However, Mr. Ouaknine’s own emails undercut his testimony. (See Ex. 12,
Dkt. No. 223-1 PX-0006 (stating “please look at all our mails (sic)
indicating that it needs to be exactly like restoration hardware . . .
please make sure all new metal scissor table (sic) must be exactly like
the technical sheet we have sent you”), PX-0048 (“The chair is exactly
as the one on the Restoration Hardware site, please go to the site and
see the chair directly.”), PX-0016 (stating CDI needed “the same leather
as halo” for order), PX-0006-020 (stating “i (sic) do not aprouve (sic)
of those two bars in the middle of the table when i (sic) sent you the
image from RH there was (sic) no two bars in the middle”).) The
discrepancies between these emails and Mr. Ouaknine’s testimony support
a finding of willfulness. See R-BOC Representatives, Inc. v. Minemyer,
- 22 -
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 23 of 27 PageID #:8256
at
652
(finding
willfulness
and
noting
that
“Mr.
Lundeen
told
inconsistent and conflicting stories about virtually everything that
mattered in the case”).
And yet, two other facts counter against trebling damages in this
case. First, CDI conceded liability as to the patent and trademark claims
earlier
in
the
litigation,
(Stipulation, Dkt. No. 114.)
greatly
simplifying
the
litigation.
Second, this Court acknowledged in its
summary judgment ruling that this case involved close legal questions.
(See Jan. 17, 2018 Memorandum Opinion and Order at 1, 26, 29, 34, 36,
Dkt. No. 187.)
The close legal questions involving the copyright claims
weigh against enhanced damages. Yet, as discussed above, the willfulness
of CDI’s infringement, its continued infringement, and the multiple
misrepresentations on the record warrant a finding of enhanced damages.
However,
given
these
countervailing
considerations,
the
Court
will
double, rather than triple, Halo’s damages.
E.
Halo’s Bill of Costs
Federal Rule of Civil Procedure 54(d)(1) provides that a prevailing
party may obtain reimbursement for certain litigation costs at the
conclusion of a lawsuit.
The Rule establishes a “presumption that the
prevailing party will recover costs, and the losing party bears the
burden of an affirmative showing that taxed costs are not appropriate.”
Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005)
(citing M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th
Cir. 1991)).
In evaluating an application for costs, the Court must
first determine whether the claimed expenses are recoverable and, second,
whether the costs requested are reasonable.
- 23 -
Majeske v. City of Chicago,
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 24 of 27 PageID #:8257
218 F.3d 816, 824 (7th Cir. 2000) (citation omitted).
“wide latitude” in fixing a reasonable award.
The Court has
Deimer v. Cincinnati Sub-
Zero Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995) (citations omitted).
Halo claims $44,794.55 in costs. (Halo’s Bill of Costs, Dkt. 237.)
1.
Fees Paid to the Clerk and for Service of Process
Halo requests $2,000.00 under 28 U.S.C. § 1920(1), comprising:
$400.00 in fees paid to the clerk and $1,600.00 in fees for service of
process.
All these costs are recoverable under § 1920(1) and are
reasonable.
See Clarendon Nat. Ins. Co. v. Medina, No. 8 C 4245, 2010
WL 3526515, at *1 (N.D. Ill. Sept. 1, 2010) (reasonable rates for service
of process); see also Dishman v. Cleary, 279 F.R.D. 460, 466 (N.D. Ill.
2012) (“Where service on a witness is reasonable at the time, witness
fees advanced will be awarded.”).
request.
Further, CDI does not object to this
The Court allows the $2,000.00 in costs.
2. Court Reporter and Transcript Fees for
Depositions and Hearings
Halo
seeks
costs
for
court
reporter
and
transcript
fees
for
depositions and hearings in the amount of $10,508.48. CDI objects to
$4,924.93 of these costs as being unnecessary.
Where the party seeking
costs does not provide “any explanation as to why [it] obtained a copy
of a daily transcript,” it “may only recover costs at the ordinary
transcript rates.”
Se-Kure Controls, Inc. v. Vanguard Prod. Grp., Inc.,
873 F. Supp. 2d 939, 945 (N.D. Ill. 2012); accord Cascades Computer
Innovation, LLC v. Samsung Elecs. Co., No. 11 C 4574, 2016 WL 612792,
at *4 (N.D. Ill. Feb. 16, 2016) (Realtime services).
Halo justifies the
added expense for real time/rough transcripts and expedited delivery for
Michael
Pakter’s
and
Carrie
Distler’s
- 24 -
deposition
transcript
by
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 25 of 27 PageID #:8258
explaining that the parties’ motions in limine were due only days after
the
scheduled
depositions
and
the
real
time/rough
transcripts
and
expedited delivery were necessary to prepare the motions. The Court finds
this explanation adequate and grants Halo its additional costs for
Michael Pakter’s and Carrie Distler’s depositions. Halo does not address
CDI’s other objections. Thus, the Court will award costs for transcript
copies in the amount of $9,404.93: the total amount, $10,508.48, minus
the amount of unexplained and objected-to costs, $1,103.55.
3.
Copies
Halo seeks $8,726.31 for copies of trial exhibits. Copying costs
are recoverable but must be reasonable and “necessarily obtained for use
in the case.” See 28 U.S.C. § 1920(4).
Halo must “identify the nature
of each document copied, the number of copies of each document prepared,
the copying cost per page, and the total copying cost.”
Druckzentrum
Harry Jung GmbH & Co. KG v. Motorola, Inc., No. 09 CV 7231, 2013 WL
147014, at *7 (N.D. Ill. Jan. 11, 2013) (citation and internal quotation
marks
omitted).
containing
a
However,
description
Halo
so
need
not
detailed
as
“submit
to
a
make
bill
it
of
costs
impossible
economically to recover photocopying costs.” Northbrook Excess & Surplus
Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991).
Halo requests costs for four copies of its trial exhibits: a copy each
for the Court, the jury, CDI, and Halo.
CDI objects to two of those
copies. “[D]istrict courts have usually limited recovery to three sets
of copies, as a prevailing party may not recover copies made for its
personal use, but may recover for copies submitted to the court and
opposing counsel.”
Menasha Corp. v. News Am. Mktg. Instore, Inc.,
- 25 -
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 26 of 27 PageID #:8259
No. 00 C 1895, 2003 WL 21788989, at *4 (N.D. Ill. July 31, 2003)
(citations and internal quotation marks omitted). Thus, Halo will be
awarded costs for three copies of its trial exhibits.
However, the
invoice also includes non-recoverable expenses such as tabs and document
scanning. Berry Plastics Corp. v. Intertape Polymer Corp., No. 310 CV
00076, 2017 WL 167829, at *8 (S.D. Ind. Jan. 17, 2017) (“[T]abs, hole
drilling, binders, and document scanning [. . .] are not compensable.”).
Thus, Halo will be awarded $6,096.39 for copying costs: the total amount
($8,726.31), minus the cost of “custom tabs” and “PDF w/OCR” ($242.00 +
$206.34 = $448.34), reduced by 25% to cover three copies ($8,726.31 x
0.75 = $6,544.73), totaling $6,096.39.
4.
Demonstrative Trial Exhibits
Halo seeks $13,937.92 for costs for presenting its full-sized
products at trial as demonstratives.
As an initial matter, the costs
of preparing exhibits may be recovered, Trading Techs. Int’l, Inc. v.
eSpeed, Inc., 750 F. Supp. 2d 962, 981 (N.D. Ill. 2010) (citing Cefalu
v. Vill. of Elk Grove, 211 F.3d 416, 428-29 (7th Cir. 2000)), but only
for exemplification that was reasonably necessary “to the presentation
of one’s case to the court.”
§ 1920(4)).
Cefalu, 211 F.3d at 429 (citing 18 U.S.C.
Although the full-sized products certainly benefited Halo’s
case, these demonstratives were not necessary as the jury could have
properly decided the case without full-sized products being brought into
the courtroom at great expense. As such, these costs will not be awarded
to Halo.
- 26 -
Case: 1:14-cv-08196 Document #: 270 Filed: 10/02/18 Page 27 of 27 PageID #:8260
E.
Copyright Application Filing Fees
Halo seeks $3,470.00 for costs for filing copyright applications.
These costs will not be awarded.
Filing copyright applications with the
U.S. Copyright Office provides Halo protection independent of this case
and as such the associated costs will not be imposed on CDI.
*
*
*
CDI did not object to any other costs and the Court finds the
balance reasonable.
Accordingly, the Court will award costs to Halo for
witness fees ($4,780.00), docket fees ($20.00), and costs as shown on
Mandate of the Court of Appeals ($1,351.84). In total, the Court awards
Halo $22,301.32 in costs.
III. CONCLUSION
For the reasons stated herein, the Court denies Defendant CDI’s
Petition
for
Recognition
and
Motion
to
Stay
Proceedings
pending
bankruptcy [Dkt. Nos. 249, 261] and Defendant CDI’s Motion for a New
Trial or, in the alternative, for this Court to amend the judgment [Dkt.
No. 231].
The Court grants Plaintiff Halo’s Motion to declare this case
an exceptional case and grant enhanced damages [Dkt. Nos. 222, 223] and
doubles the damages. The Court also grants in part and denies in part
Halo’s bill of costs.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
10/2/2018
- 27 -
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