Deckers Outdoor Corporation v. Mallas et al

Filing 55

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS: In accord with the applicable clear error standard of review, the Court finds Judge Pollack's R&R to be correct, well-reasoned, and free of any clear error. The Court, therefore, adopts it in its entirety as the opinion of the Court; In line with the foregoing, plaintiff is awarded, against Image Urban, $83,790.00 in statutory damages, and an injunction as described above, and in greater detail in the R&R. Ordered by Judge Eric N. Vitaliano on 9/08/2014. (fwd for judgment) (Fernandez, Erica)

FILED

IN CLERK'S Ol'f'ICE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

U.S. DISTF!O(~,T COURT E.D.N.Y.

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SEP 1 1 2014

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DECKERS OUTDOOR CORPORATION,

BROOKLYN OFFICE

Plaintiff,
MEMORANDUM & ORDER
-against12-cv-5986 (ENV) (CLP)
TKM FOREST HILLS, LLC; TKM KINGS
HIGHWAY, LLC; CHRISTOS
KALOGEROUS; IMAGE URBAN CO; and
JOHN DOES 1-10,
Defendants.

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VITALIANO, D.J.,
On February 12, 2014, the Court granted default judgment against defendant
Image Urban Co., and referred the matter to Magistrate Judge Cheryl L. Pollack
for inquest to determine appropriate damages. On July 10, 2014, Judge Pollack, in
her report and recommendation ("R&R"), following the inquest, recommended that
plaintiffs be awarded $83,790.00 in statutory damages, and further recommended
that an injunction be entered prohibiting defendant from:
(1) manufacturing, distributing, advertising, offering for sale, and/or
selling any products bearing plaintiffs trademarks, or any other marks
confusingly similar thereto, as well as plaintiffs boot design patents;
(2) using plaintiffs trademarks in connection with the promotion,
advertisement, display, sale, offer for sale, manufacture, production,
circulation or distribution of counterfeit footwear in such fashion as to
relate or connect such products in any way to plaintiff or to any goods
sold, manufactured, sponsored, or approved by plaintiff; (3)
committing any other act which falsely represents or which has the
effect of falsely representing that the goods and services of defendant
are licensed by, or in any other way associated with, plaintiff; (4)
knowingly aiding, abetting, contributing to, or otherwise assisting
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anyone in infringement of plaintiffs trademarks; and (5) effecting new
assignments or transfers, forming new entities or associations, or
utilizing any other device for the purpose of circumventing these
prohibitions.
(R & R 19-20, ECF No. 53).
In reviewing a report and recommendation of a magistrate judge, a district
judge "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). A district
judge is required to "make a de novo determination upon the record, or after
additional evidence, of any portion of the magistrate judge's disposition to which
specific written objection has been made" by any party, Fed. R. Civ. P. 72(b), but
where no timely objection has been made, the "district court need only satisfy itself
that there is no clear error on the face of the record" to accept a magistrate judge's
R&R. Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting

Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)).
Judge Pollack's R&R gave proper notice that any objection had to have been
filed within 14 days of its entry on the docket. 1 Neither plaintiff nor defendant has
objected to Judge Pollack's R&R at all, much less within the time prescribed by 28
1

On July 10, 2014, the Clerk of Court mailed copies of the R&R to defendant at two
different addresses in Brooklyn. One copy was returned as undeliverable on July 24, 2014,
but another, sent to 1360 Ocean Parkway, Apt. 6H, Brooklyn, NY 11230, was not returned.
A summons was returned executed on defendant at that same address on September 11,
2013.
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U.S.C. § 636(b)(l). In accord with the applicable clear error standard of review, the
Conrt finds Judge Pollack's R&R to be correct, well-reasoned, and free of any clear
error. The Court, therefore, adopts it in its entirety as the opinion of the Court.
Conclusion
In line with the foregoing, plaintiff is awarded, against Image Urban,
$83,790.00 in statutory damages, and an injunction as described above, and in
greater detail in the R&R.
SO ORDERED.
Dated:

Brooklyn, New York
September 8, 2014

s/Eric N. Vitaliano

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