Luv N Care Ltd, et al v. Atziloose L L C, et al

Filing 22

MEMORANDUM RULING re 19 MOTION for Confirmation of Default as to Bombino Express Pvt Ltd filed by Luv N Care Ltd, Admar International Inc. Signed by Judge Robert G James on 11/29/2017. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

LUV N’ CARE, LTD., ET AL.

CIVIL ACTION NO. 17-0240

VERSUS

JUDGE ROBERT G. JAMES

ATZILOOSE, LLC, ET AL.

MAG. JUDGE KAREN L. HAYES

RULING
Pending before the Court is a Motion for Confirmation of Default [Doc. No. 19] filed by
Plaintiffs Luv N’ Care, Ltd. (“LNC”), and Admar International, Inc. (“Admar”). Plaintiffs seek
confirmation of default and a final judgment ordering Defendant Bombino Express Pvt. Ltd.
(“Bombino”) to pay $10,000.00 for lost sales, attorneys’ fees and costs, and the issuance of an
injunction prohibiting Bombino and its agents, and those in active concert with them, from further
infringement of Plaintiffs’ intellectual property. For the following reasons, the motion is GRANTED
IN PART and DENIED IN PART.
I.

FACTS AND BACKGROUND
This is a case of intellectual property infringement. Since the 1980's, LNC has been in the

business of designing and selling products for babies and young children. LNC’s headquarters are
in Monroe, Louisiana, where it conducts most of its business, maintains its corporate books and
records, and where most of its employees, officers and directors are located. LNC’s products are
purchased and sold in Louisiana by independent retailers under various Louisiana registered
trademarks including the mark NUBY, a distinctive symbol, which is registered with the Louisiana
Secretary of State and the United States Patent and Trademark Office. LNC is a licensee of the

NUBY mark outside the State of Louisiana.
Bombino is a limited liability company organized under the State of New York. The
company is headquartered in India, according to Plaintiffs, and copies successful products using
lower quality materials and craftsmanship then sells them at lower prices.
Bombino has copied Plaintiffs’ successful feeding spoon design, offered it for sale on
Amazon.com using Plaintiffs’ trademarks and has sold that product in the United States, shipping
it from India via its U.S. office. Plaintiffs served Bombino at its New York office as evidenced by
the Return of Service filed with the Court. Bombino has not answered or otherwise made an
appearance.
On June 9, 2017, the Clerk of Court entered a default against Bombino. [Doc. No. 16].
On November 21, 2017, Plaintiffs filed the instant Motion for Confirmation of Default. [Doc.
No. 19].
II.

LAW AND ANALYSIS
A.

Default Judgment

An entry of default is appropriate “[w]hen 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.” FED. R. CIV. P. 55(a).
After 14 days have elapsed since the Clerk’s entry of default, under Local Rule 55, a party
may move for entry of default judgment. Rule 55(b)(2) provides for the entry of a default judgment
by the Court, rather than the Clerk of Court, when the plaintiff’s claim is not a “sum certain or a sum
that can be made certain by computation.” FED. R. CIV. P. 55(b)(1), (2).

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B.

Lanham Act and State Law

Plaintiffs brought this civil action for trademark and unfair competition pursuant to Sections
32 and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114 and 1125(a); and LA. REV. STAT. 51:211, et seq.,
and LA. REV. STAT. 51:1401, et seq. Bombino promoted, advertised, and offered for sale, over the
internet on Amazon.com’s website, a feeding spoon that is a virtual or “knock-off” copy of
Plaintiffs’ well-known and popular Squeeze Feeder feeding spoon.
1.

Jurisdiction

This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a) because
this action arises under the Trademark Laws of the United States and the assertion of the unfair
competition claims are joined with a substantial and related claim under the Trademark Laws of the
United States. Additionally, the Court has personal jurisdiction over Bombino because Plaintiffs’
claims arise in whole or in part out of Bombino’s purposeful and intentional conduct in Louisiana.
Bombino is also subject to personal jurisdiction under the provisions of the Louisiana Long Arm
Statute, LA. REV. STAT. 13:3204, because it has availed itself of the privilege of conducting and
soliciting business within this State, including engaging in the infringing acts through the sales and
marketing of infringing products in this State. Therefore, the Court’s exercise of personal
jurisdiction is consistent with the principles underlying the federal Constitution and would not offend
traditional notions of fair play and substantial justice.
2.

Bombino’s Offending Conduct

One of Plaintiffs’ products is a feeding spoon marketed under the brand Squeeze Feeder. The
Squeeze Feeder is a soft silicone bottle for holding baby food or cereal and adapted so that by
squeezing the bottle a desired amount of baby food can pass through a hole in the spoon’s neck and
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onto the bowl of the spoon.
The trademark “Squeeze Feeder” is registered with the Louisiana Secretary of State and is
entitled to the full benefits of LA. REV. STAT. § 51:211, et. seq. Plaintiffs are the owners of the
Squeeze Feeder trademark. Since its introduction in 2009, Plaintiffs have sold more than a quarter
of a million feeding spoons bearing the NUBY, Squeeze Feeder and product design logo trademarks.
Plaintiffs’ unique and distinctive Squeeze Feeder feeding spoon product design logo is also
registered as a trademark with the Louisiana Secretary of State and is entitled to the full benefits of
LA. REV. STAT. § 51:211, et seq.
Bombino has engaged in activities intentionally directed at consumers and potential
customers who are residents of Louisiana in a willful, unlawful, and unfair campaign of using,
without authorization or consent, NUBY and Squeeze Feeder trademarks and an imitation of LNC’s
registered unique and distinctive product design logo in connection with the sale, offer for sale and
use of feeding spoons. Bombino’s feeding spoon is a copy of Plaintiffs’ Squeeze Feeder feeding
spoon. Bombino’s activities, intentionally directed at consumers and potential customers who are
residents of Louisiana, including sales, offers for sale and use of Plaintiffs’ NUBY and Squeeze
Feeder trademarks and feeding spoons copying Plaintiffs’ registered unique and distinctive product
design logo are likely to cause confusion or mistake or to deceive consumers and potential
purchasers as to the source of origin of such goods.
Bombino’s advertisements in Louisiana of its copy of Plaintiffs’ registered unique and
distinctive product design logo is likely to cause a consumer to believe that he or she is being offered
or shown a feeding spoon originating from LNC. Bombino embeds copies of Plaintiffs’ registered
NUBY and Squeeze Feeder trademarks in the metadata used to attract consumers and potential
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customers to its web store on Amazon.com. Consumers and potential customers who search the web
or Amazon.com for LNC’s NUBY brand Squeeze Feeder feeding spoon are provided search results
that also display Bombino’s knock-off feeding spoon copy.
Bombino’s activities directed at consumers and potential customers who are residents in the
State of Louisiana constitute unfair methods of competition and unfair and/or deceptive acts or
practices in the conduct of trade and commerce. Bombino’s acts of unfair competition were and are
willful, and Bombino has profited and will continue to profit from its improper and unlawful
activities unless enjoined by this Court.
Additionally, as a result of Bombino’s intentional conduct, Plaintiffs’ NUBY trademark has
been and is being infringed to Plaintiffs’ harm and detriment. Bombino’s actions demonstrate and
are consistent with an intentional, willful, malicious, and bad faith intent to trade on the goodwill
associated with NUBY.
Further, the ordinary consumer and potential purchaser cannot distinguish between Plaintiffs’
feeding spoon and Bombino’s knock-off copy. The quality of Bombino’s knock-off copy is inferior
to the quality of Plaintiffs’ feeding spoon. Bombino’s unlawful conduct tarnished Plaintiffs’
reputations and diluted their Squeeze Feeder trademark.
Finally, Plaintiffs are the original creators, designers, and owners of a non-functional product
configuration logo widely used by Plaintiffs throughout the United States to identify their feeding
spoons. Plaintiffs acquired their rights in the product configuration logo prior to the acts of Bombino
described above and have used the logo for many years. The product configuration logo exclusively
identifies Plaintiffs’ feeding spoon, is solely associated with Plaintiffs, and represents substantial
good will associated with Plaintiffs. As a result of promotional and advertising activities together
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with the substantial sales of feeding spoons constituting the product configuration logo, Plaintiffs’
product configuration logo has acquired secondary meaning in the marketplace as consumers and
potential purchasers have come to recognize the product configuration logo mark as a well-known
indicator of high-quality feeding spoons. Bombino’s actions, however, are likely to confuse
consumers into believing that its knock-off feeding spoons are in some way associated with
Plaintiffs. Thus, Plaintiffs’ product configuration logo trademark has been and is being infringed
to Plaintiffs’ harm and detriment.
III.

REQUESTED RELIEF
Having found that Bombino violated the cited federal and state statutes, the Court now turns

to Plaintiffs’ prayer for relief. The Court finds that Plaintiffs are entitled to entry of a permanent
injunction to prevent further violations by Bombino. Likewise, they can recover reasonable
attorney’s fees, costs, and expenses, to the extent proven. However, Plaintiffs have cited the Court
to no evidence to support an award of damages. Although the Court may award damages without
conducting an evidentiary hearing, there must be some admissible evidence in the record to support
a damages award. Counsel’s arguments are not evidence. Therefore, no damages will be awarded.
IV.

CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Confirmation of Default. [Doc. No. 19] is

GRANTED IN PART and DENIED IN PART. Bombino has violated Sections 32 and 43(a) of the
Lanham Act, 15 U.S.C. §§ 1114 and 1125(a), has violated LA. REV. STAT. §§ 51:222, and has
violated LA. REV. STAT. §§ 51:1401, et seq. To the extent that Plaintiffs move for an injunction and
attorneys’ fees, costs, and expenses, the motion is GRANTED. Bombino; its officers, agents,
servants, employees, representatives, successors, and assigns; and all others acting in concert or
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participation with them, are permanently enjoined from continued infringement of Plaintiffs’
trademarks and from further acts of unfair competition. Additionally, Plaintiffs are awarded
reasonable attorneys’ fees, costs, and expenses incurred in this action, to be determined after the
submission of the appropriate evidence. However, to the extent that Plaintiffs seek damages and
enhanced damages, their motion is DENIED for lack of evidence.
MONROE, LOUISIANA, this 29th day of November, 2017.

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