Phoenix Entertainment Partners, LLC v. Lotruglio
Filing
14
DEFAULT JUDGMENT: IT IS ORDERED, ADJUDGED, and DECREED that judgment by default is hereby entered in favor of the Plaintiff against Deft Heather M. Lotruglio a/k/a Heather Heart Lotruglio d/b/a Karaoke with Friends. Deft is hereby ordered to pay the sum of $1,000.00 to plaintiff, with accrual of interest from the date of entry of this judgment until paid at the legal rate, pursuant to 28 U.S.C. § 1961. Ordered by Judge Sandra J. Feuerstein on 2/29/2016. (Florio, Lisa)
Case :15-cv-03244-SJF-GRB Document 12 Filed 02/11/16 Page 1 of 5 PageJD #: 38
UNITED STATES DISTRICT COURT
EASTERN DISTRICT
--------------------------------------------------------------)(
PHOENI)( ENTERTAINMENT
PARTNERS, LLC,
Case No. 15-CV-3244
Plaintiff,
-against-
ORDER, JUDGMENT, AND
PERMANENT INJUNCTION
AGAINST DEFENDANT
HEATHER M. LOTRUGLIO
a/k/a HEATHER HEART
LOTRUGLIO d/b/a KARAOKE
WITH FRIEtRfl. E 0
IN CLERK'S OFFICE
US DISTRICT COURT EO Illy
HEATHER M. LOTRUGLIO aJk/a
HEATHER HEART LOTRUGLIO d/b/a
KARAOKE WITH FRIENDS,
*
Defendant.
FiB
zq 2016 *
LONG 1-SLANO OFFIC[
-------------------------------------------------------------)(
This matter is before the Court upon the Motion of the Plaintiff, Phoenix
Entertainment Partners, LLC ("Plaintiff'), pursuant to Fed.R.Civ.P. 55(b)(2), for a judgment
by default against Defendant Heather M. Lotruglio aJk/a Heather Heart Lotruglio d/b/a
Karaoke with Friends ("Defendant"). Based upon a review of the evidence before the Court,
the Court makes the following:
FINJ)INGS OF FACT
I.
On June 4, 2015, the Plaintiff commenced this action against the Defendant, alleging
trademark and trade dress infringement under 15 U.S.C. §1114, trademark
counterfeiting t!nder 15 U.S.C. §1114, unfair competition under 15 U.S.C. §1125(a),
unfair and deceptive trade practice under New York General Business Law §349, and
unfair competition under the common law of New York.
2.
On June 18, 2015 Defendant was served with the Complaint .
•
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Case :15-cv-03244-SJF-GRB Document 12 Filed 02/11/16 Page 2 of 5 PageiD #: 39
3.
Defendant failed to answer or otherwise respond to the Complaint within the time
required by Fed. R. Civ. P. 12, and the Clerk of the Court noted default on January 20,
2016.
4.
Plaintiff is the owner of U.S. Trademark Registrations No. 1,923,448 and 4,099,045,
both for SOUND CHOICE®, and of U.S. Trademark Registrations No. 2,000,725 and
4,099,052, both for a display trademark SOUND CHOICE & Design® ("the Marks").
Plaintiff is also the owner, by virtue of assignment, of the distinctive and protectable
trade dress associated with its graphical display. This distinctive and protectable trade
dress includes, at minimum, (a) the use of a particular typeface, style, and visual
arrangement in displaying the lyrics; (b) the SOUND CHOICE marks; and (c) the use
of particular styles in displaying entry cues for singers.
5.
The Plaintiff has consistently used the ® symbol to denote the registration of the
Marks and thereby to give notice to the public that the Marks are federally registered.
6.
Defendant used a reproduction, counterfeit, or copy of the Marks in connection with
the provision of karaoke services.
7.
Defendant has directly benefited from the use of a reproduction, counterfeit, or copy
of the Marks in connection with the provision of karaoke services, when Defendant
displayed that reproduction, counterfeit, or copy during the provision of their services.
8.
Defendant did not have a license or other permission to create digitized copies of the
Plaintiff's karaoke discs or of the karaoke tracks contained thereon.
9.
An unauthorized digitized copy of the Plaintiff's karaoke discs or music tracks is a
counterfeit.
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Case :15-cv-03244-SJF-GRB Document 12 Filed 02/11/16 Page 3 of 5 PageiD #: 40
I 0.
Defendant did not have a license to use counterfeit tracks in connection with their
provision of karaoke services.
II.
Defendant's unauthorized use of counterfeits of the Marks is likely to cause consumer
confusion by deceiving their customers and/or patrons into believing that the services
are being provided with Plaintiffs authorization.
12.
Plaintiff has been harmed by Defendant's infringing activities.
13.
Plaintiff's actions were willful.
14.
Defendant benefitted financially from the karaoke shows performed, specifically
through the use of counterfeit goods bearing the Marks.
15.
The Plaintiff has been harmed by Defendant's infringing activities, and will continue
to be harmed if Defendant is not enjoined from further infringement.
16.
The Plaintiffhas elected to receive an award of statutory damages from Defendant.
Based upon the foregoing facts, the Court makes the following:
CONCLUSIONS OF LAW
This Court has jurisdiction over the subject matter of this action as it arises under an
1.
act of Congress relating to trademarks, particularly including federally registered
trademarks.
2.
This Court has personal jurisdiction over Defendant, and venue is proper in this
judicial district.
3.
The allegations pled in the Complaint, by virtue of the Defendant's default, are
deemed to have been admitted by Defendant.
4.
By using counterfeit materials bearing the Marks to put on karaoke shows and by
displaying the Marks during the course of its shows, the Defendant has committed
'
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Case :15-cv-03244-SJF-GRB Document 12 Filed 02/11/16 Page 4 of 5 PageiD #: 41
acts that are likely to cause confusion among consumers of their services as to
authorization, sponsorship, and affiliation of their services with Plaintiff. In particular,
customers and/or patrons who visit karaoke establishments where the Defendant puts
on karaoke shows are likely to be deceived into believing that the services are being
provided with the Plaintiff's authorization.
5.
Defendant had the ability to control and exercise control over the use of infringing
products, had knowledge that infringing products were being used to provide services,
and derived a direct financial benefit from the use of the infringing products.
6.
Consequently, Defendant's activities constitute trademark infringement involving
counterfeiting.
7.
Defendant's infringement was willful and knowing.
8.
The Plaintiff is entitled to a damage award for infringement of its registered
trademarks, in an amount between $1,000.00 and $2,000,000.00 per mark, as the
.$/ ~.I>~
Court may determine.
1
The Court finds that an award
~
supported by the evidence of record
and will be sufficient to compensate the Plaintiff for their losses and to deter others
from engaging in similar conduct.
10.
The Plaintiff is also entitled to a permanent injunction against Defendant's acts of
infringement of its trademarks.
JUDGMENT AND PERMANENT INJUNCTION
Accordingly, it is ORDERED, ADJUDGED, and DECREED as follows:
1.
Judgment by default is hereby entered in favor of the Plaintiff against Defendant
Heather M. Lotruglio alk/a Heather Heart Lotruglio d/b/a Karaoke with Friends.
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.
'
'
Case :15-cv-03244-SJF-GRB Document 12 Filed 02/11/16 Page 5 of 5 PageiD #: 42
2.
'Jb~-~ 5 U.S.C. § 1117, Defendant is hereby ordered to pay the sum of
~laintiff,
with accrual of interest from the date of entry of this judgment
until paid at the legal rate, pursuant to 28 U.S.C. § 1961.
3.
Defendant and its agents, employees, and all persons in active concert or participation
with them and having knowledge of this Order are hereby permanently ENJOINED
(a) from using (including making, copying, sharing, distributing, selling, or otherwise
using, and particularly including use to provide karaoke services), commercially or
otherwise, any karaoke accompaniment track that is marked with either the mark in
U.S. Trademark Registration No. 1,923,448 and 4,099,045, both for SOUND
CHOICE®, or the mark in U.S. Trademark Registration No. 2,000,725 and 4,099,052,
both for a display trademark SOUND CHOICE & Design®, without the prior, express
written permission of Plaintiff 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 marked with any mark or other designation belong to any person
from whom the Defendant has not obtained written authorization from the owner
s/ Sandra J. Feuerstein
Entered:+----~.,-,-....,...- - - - - , - - -
Sandra J. Feuerstein
tes District Court Judge
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