Flat Rate Movers, Ltd. v. FlatRate Moving & Storage, Inc.

Filing 86

OPINION re: 68 MOTION for Summary Judgment . filed by Flat Rate Movers, Ltd.. Plaintiff's motion for summary judgment as to the federal and New York state trademark infringement and unfair competition claims is granted agains t all Defendants except Itzhak Alush. Summary judgment is denied on the cybersquatting claim. Injunctive relief is granted as described above. Within ten days, Plaintiff shall inform the Court whether it seeks a trial on the outstanding claims, or whether it seeks to proceed directly to a damages inquest based on the resolved claims. (Signed by Judge Miriam Goldman Cedarbaum on 4/22/2015) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------X
FLAT RATE MOVERS, LTD.
(d/b/a FLATRATE MOVING)
Plaintiff,
-against-

OPINION
13 CV 0059 (MGC)

FLATRATE MOVING & STORAGE, INC.;
MOSHE ALUSH a/k/a MOSHE ALOSH,
MOSHE ALOUSH; ELIYAHU ALUSH a/k/a
ELIYAHU ALOSH, ELIYAHU ALOUSH; and
ITZHAK ALUSH a/k/a ITZHAK ALOSH,
ITZHAK ALOUSH, YITZHAK ALUSH,
YITZHAK ALOSH, YITZHAK ALOUSH,
Defendants.
----------------------------------X
APPEARANCES:
CURTIS, MALLET-PREVOST, COLT & MOSLE LLP
Attorneys for Plaintiff
By:

Jonathan J. Walsh, Michael Graif, Alyssa J. Astiz

Neil Grimaldi, Esq.
Attorney for Defendants

Cedarbaum, J.
FlatRate Movers, Ltd. (d/b/a FlatRate Moving) brings this
suit against FlatRate Moving & Storage, Inc., Moshe Alush,
Eliyahu Alush, and Itzhak Alush for trademark infringement,
unfair competition, and cybersquatting.

Plaintiff moves for

summary judgment.

That motion is granted in part and denied in

part.
BACKGROUND
As an initial matter, Defendants failed to submit a
response to Plaintiff’s Local Rule 56.1 statement of undisputed
facts.

Plaintiff’s 56.1 statement is therefore deemed admitted

to the extent it is supported by the record.

Nike, Inc. v. Top

Brand Co. Ltd., 2005 WL 1654859, at *2 (S.D.N.Y July 13, 2005).
Further, although Defendants’ opposition to Plaintiff’s motion
lacks substance (consisting only of a brief that cites no cases,
a conclusory declaration, and irrelevant attachments), the Court
nonetheless has closely scrutinized Plaintiff’s arguments on its
own.
Turning to the undisputed facts, Plaintiff is a moving and
storage services company that has operated nationwide as
“FLATRATE MOVING” since 1991.

Prior to providing moving

services, Plaintiff presents customers with a guaranteed, or
“flat,” rate for the service.
On October 18, 2002, Plaintiff applied to register as its
trademark “FLATRATE. MOVING & Design.”

The trademark was

registered (No. 2910322) on December 14, 2004, and became
incontestable on January 26, 2010.
On September 20, 2006, Plaintiff applied to register as its
trademark “FLATRATE MOVING & Design.”
2

The trademark was

registered (No. 3270882) on July 31, 2007, and became
incontestable on August 20, 2012.
On September 7, 2010, Plaintiff applied to register as its
trademark “FLATRATE MOVING.”

That trademark was registered (No.

4051739) on November 8, 2011.
Prior to registering the three trademarks, the U.S. Patent
and Trademark Office accepted Plaintiff’s showing that each mark
enjoyed acquired distinctiveness in the market.
Plaintiff purchased the website “flatrate.com” in 1995 and
has operated under it for business purposes since 1998.
Plaintiff has spent millions of dollars over the years to
advertise its business, and won awards for quality service.
Plaintiff’s website, as well as its ninety trucks, displays its
registered trademark:

Plaintiff asserts that the individual defendants Moshe
Alush, Eliyahu Alush, and Itzhak Alush jointly own and operate
the corporate defendant, FlatRate Moving & Storage, Inc.

The

company consists of the three brothers, two secretaries, and
five movers.

At deposition, Eliyahu Alush stated that he owns

and manages the company, describing it as a “family business.”
Moshe Alush also stated that he owns the company.

Itzhak Alush

filed the company’s initial articles of incorporation in 2003,
3

and was, at least at one point, an owner as well.

Both Eliyahu

and Moshe have been in charge of the company’s advertising and
website over the years.
Defendants did not perform any trademark searches or
consult with an attorney before adopting their business name.
The company operates in Maryland, Virginia, and New York, among
other areas.

It sells moving services both at guaranteed flat

rates and at hourly rates.

Defendants offer moving services

through the website “flatratemovers.com,” which they purchased
in 2001.

Each of the three individual defendants also purchased

at least one of the following domain names at various times
after 2004:

flatratemove.com, flatratemovingcompanies.com,

flatratemovingestimates.com, flatratemovingestimats.com,
flatratemovingestimate.com, and flatratemovingestimat.com.
Defendants conduct their moves using trucks that display the
name “FLAT RATE MOVERS”.

The defendant corporation lost its

corporate status under Maryland law in 2009 but continues to
operate.
Defendants’ company name is displayed on their website as
follows:

Multiple customers of Plaintiff have mistakenly attributed
Defendants’ unsatisfactory services to Plaintiff because the
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customers confused the two companies.

Multiple customers have

accidentally contacted Defendants when intending to book another
move with Plaintiff.

In two instances, a customer of Plaintiff

erroneously contacted Defendants for a second move.

The

customers informed Defendants that they were repeat customers
(although they had not moved with Defendants previously), but
Defendants did not correct their assumptions.

Finally, in

another instance, Defendants gave a disgruntled customer
Plaintiff’s phone number in order for that individual to voice a
complaint. 1
Plaintiff previously sued defendant FlatRate Moving &
Storage, Inc. for trademark infringement in the District of
Maryland in 2004.

At deposition in that case, Eliyahu Alush

stated that that his company did not use the “FLAT RATE” name on
its trucks to perform moves in New York in order to avoid
confusion with Plaintiff.

Eliyahu Alush also stated that, again

to avoid confusion, another name was registered for his company:
“Tiptop Movers.”

The Maryland case was discontinued and

dismissed without prejudice.

1

Plaintiff’s evidence of complaints is submitted mostly through
emails between Plaintiff’s employees reporting on conversations
with customers. Such hearsay evidence is admissible to show the
customer’s state of mind (i.e., confusion) under Federal Rule of
Evidence 803(3). See Fun-Damental Too, Ltd. v. Gemmy Indus.
Corp., 111 F.3d 993, 1004 (2d Cir. 1997). Additionally,
Plaintiff does submit two declarations directly from customers.
5

Plaintiff has continued performing moves using trucks
displaying the name “FLAT RATE MOVERS” even after commencement
of this lawsuit.
STANDARD OF REVIEW
Summary judgment is appropriate where there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

In making

this determination, the Court must view all facts “in the light
most favorable” to the non-moving party.

Matthews v. City of

New York, 779 F.3d 167, 171 (2d Cir. 2015).

The non-moving

party may not, however, rely “on mere speculation or conjecture
as to the true nature of the facts to overcome a motion for
summary judgment.”

Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.

2010) (internal quotation marks omitted).

Instead, when the

moving party has documented particular facts in the record, “the
opposing party must come forward with specific evidence
demonstrating the existence of a genuine dispute of material
fact.”

FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.

2010).

6

DISCUSSION
I. FEDERAL TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION 2
Claims of trademark infringement, 15 U.S.C. § 1114(1), and
unfair competition, 15 U.S.C. § 1125(a), are evaluated under the
same two-part test: (1) is plaintiff’s mark entitled to
protection, and (2) is defendant’s use of the mark likely to
cause confusion.

Arrow Fastener Co. v. Stanley Works, 59 F.3d

384, 390 & n.4 (2d Cir. 1995).
Here, Plaintiff’s three marks are registered and entitled
to protection in the absence of other evidence.
§ 1057(b).

15 U.S.C.

The analysis thus focuses on the confusion prong.

A. Polaroid Factors
Consumer confusion is evaluated using eight factors
articulated in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d
492, 495 (2d Cir. 1961):

(1) the strength of the mark; (2) the

similarity between the marks; (3) the proximity of the products;
(4) the likelihood that the prior owner will bridge the gap; (5)
actual confusion; (6) the defendant’s good faith; (7) the
quality of defendant’s product; and (8) the sophistication of
the buyers.

2

Plaintiff also, mysteriously, asserts a claim for
“counterfeiting” under what it labels “15 U.S.C. § 1114(c)” -- a
nonexistent statutory provision.
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i. Strength of the mark
This factor refers to a mark’s distinctiveness, both
inherently, and in the marketplace (i.e. “secondary meaning”).
Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739, 743 (2d
Cir. 1998).

Marks are divided into four categories of

increasing distinctiveness: generic, descriptive, suggestive,
and arbitrary or fanciful.

Arrow Fastener Co. v. Stanley Works,

59 F.3d 384, 391 (2d Cir. 1995).

A “descriptive” mark -- as

opposed to one that is merely “suggestive” of the actual
features of a product -- is protected only if it has acquired
secondary meaning.

Id.

Secondary meaning is gauged by factors

such as advertising, consumer studies, sales, competitors’
attempts to use the mark, and length of the mark’s use.

Id. at

393.
If, however, a mark is registered, its distinctiveness is
presumed.

Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co.,

799 F.2d 867, 871 (2d Cir. 1986).

That is, registration creates

a rebuttable presumption that a descriptive mark enjoys
secondary meaning.

Arrow Fastener, 59 F.3d at 393.

Plaintiff’s marks are descriptive.

Little imagination is

required to realize that “FLATRATE MOVING” refers to moving
services offered at a fixed price.

See, e.g., Perfect Pearl Co.

v. Majestic Pearl & Stone, Inc., 887 F. Supp. 2d 519, 533
(S.D.N.Y. 2012) (“Illustrative examples of descriptive marks
8

are: P.M. for sleep-aid medication, POWER CHECK for batteries
that enable one to check the remaining power level, and REAL
NEWS for news reporting.”).

However, the marks are registered,

and Plaintiff made a showing of secondary meaning at the time of
registration.

Two of the three marks are incontestable.

Thus

Plaintiff’s marks enjoy a presumption of distinctiveness.
In addition, Plaintiff has submitted evidence to this Court
of secondary meaning.

Plaintiff has used these marks for over

twenty years and spent millions of dollars in advertising.
business has won awards for quality service.

The

The strength-of-

the-mark factor favors Plaintiff.
ii. Similarity between the marks
“To apply this factor, courts must analyze the mark’s
overall impression on a consumer, considering the context in
which the marks are displayed and the totality of factors that
could cause confusion among prospective purchasers.”

Malletier

v. Burlington Coat Factory Warehouse Corp., 426 F.3d 532, 537
(2d Cir. 2005) (internal quotation marks omitted).
There is a high degree of similarity between Plaintiff’s
“FLATRATE MOVING” and Defendants’ “FLAT RATE MOVERS Moving &
Storage.”

Although the colors and styles are different, the

actual brand name -- “FLATRATE” -- is the same.

That

Plaintiff’s mark is “FLATRATE MOVING” versus “FLAT RATE MOVERS”
is of little significance.

“When the dominant words in two
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marks are the same, courts have found that their similarity can
cause consumer confusion.”

Lebewohl v. Heart Attack Grill LLC,

890 F. Supp. 2d 278, 294 (S.D.N.Y. 2012) (“Heart Attack Grill”
and “Instant Heart Attack Sandwich” were similar).

A consumer

seeking a phone number for a moving service called “FLATRATE” is
unlikely to recall the difference between “MOVING” and “MOVERS,”
or the difference between “FLATRATE” and “FLAT RATE.”

This

“similarity is more likely than not to cause consumer
confusion.”

Brennan’s, Inc. v. Brennan’s Rest., L.L.C., 360

F.3d 125, 133 (2d Cir. 2004).
iii. Proximity of the products
“This factor focuses on whether the two products compete
with each other.”

Lang v. Ret. Living Pub. Co., 949 F.2d 576,

582 (2d Cir. 1991).
Plaintiff and Defendants both offer guaranteed fixed rate
moving services.

Plaintiff operates nationally, and Defendants

operate in New York, Maryland, Virginia, and other states.
companies allow customers to book moves online.

Both

Thus, at least

in the states where Defendants operate, the two companies are
substitutes.

This factor favors Plaintiff.

iv. The likelihood that the prior owner will bridge
the gap
This factor concerns the likelihood that Plaintiff will
enter the same market as Defendants.

10

Star Indus., Inc. v.

Bacardi & Co., 412 F.3d 373, 387 (2d Cir. 2005).

Because the

two companies already operate in the same product and geographic
markets, there is “no gap to bridge,” and this factor is
irrelevant.

Id.
v. Actual confusion

Evidence of actual consumer confusion is strong evidence of
a likelihood of confusion.

Mobil Oil Corp. v. Pegasus Petroleum

Corp., 818 F.2d 254, 259 (2d Cir. 1987).
Plaintiff submits such evidence.

Thinking that the

companies were the same, many customers have mistakenly
attributed Defendants’ unsatisfactory services to Plaintiff.
Many customers intending to hire Plaintiff have accidentally
contacted Defendants instead.

Two customers of Plaintiff

erroneously contacted Defendants for a second move, and
Defendants took advantage of the customers’ mistakes.

In

another instance, Defendants gave a disgruntled customer the
phone number of Plaintiff in order to voice a complaint.
This actual confusion strongly favors Plaintiff.
vi. Defendant’s good faith
A defendant exhibits bad faith by “adopt[ing] its mark with
the intention of capitalizing on plaintiff’s reputation and
goodwill and any confusion between his and the senior user’s
product.”

Lang, 949 F.2d at 583 (internal quotation marks

omitted).

“Bad faith may be inferred from the junior user’s
11

actual or constructive knowledge of the senior user’s mark,”
Star Indus., 412 F.3d at 389, although such knowledge does not,
“without more, create an inference of bad faith,” Playtex
Products, Inc. v. Georgia-Pac. Corp., 390 F.3d 158, 166 (2d Cir.
2004).

Good faith can be shown through performance of a

trademark search or reliance on the advice of counsel prior to
adopting a mark.

Star Indus., 412 F.3d at 388.

Courts have found, on summary judgment, a defendant’s bad
faith where “a defendant receives a cease and desist letter but
continues the infringing conduct,” Fendi Adele S.R.L. v.
Burlington Coat Factory Warehouse Corp., 689 F. Supp. 2d 585,
600 (S.D.N.Y. 2010); see also Microban Products Co. v. API
Indus., Inc., 2014 WL 1856471, at *8 (S.D.N.Y. May 8, 2014), and
where a defendant fails to correct a third party’s erroneous
belief about the relationship between the defendant and the
plaintiff, Warner-Lambert Co. v. Schick U.S.A., Inc., 935 F.
Supp. 130, 141 (D. Conn. 1996).
Defendants did not perform a trademark search or consult
with an attorney before adopting their business name in 2003 (at
which time Plaintiff’s application was pending).

There is no

doubt Defendants actually knew of Plaintiff’s mark -- at the
latest -- in 2004 when Plaintiff first brought suit in Maryland.
Defendant Eliyahu Alush admitted in sworn testimony in that case
that his company name could cause confusion with Plaintiff.
12

Defendants registered an additional name for their company,
“Tiptop Movers,” in order to avoid such confusion.

Defendants

nonetheless continued to provide moving services using the “FLAT
RATE” name in New York and elsewhere after that suit, see Aztar
Corp. v. NY Entm’t, LLC, 15 F. Supp. 2d 252, 260 (E.D.N.Y. 1998)
(defendant misrepresenting steps taken to avoid confusion was
evidence of bad faith on summary judgment), aff’d, 210 F.3d 354
(2d Cir. 2000), as well as after commencement of the instant
lawsuit.
In addition, Plaintiff submits an affidavit from its
customer who accidentally called Defendants for a subsequent
move and informed Defendants multiple times that he was a repeat
customer, even asking for a returning customer discount.
Although Defendants had never done business with the individual,
in an attempt “to exploit the goodwill created by” Plaintiff’s
marks, Warner-Lambert, 935 F. Supp. at 141, Defendants did not
disabuse him of his assumption.
Plaintiff has thus presented evidence -- beyond Defendants’
knowledge of Plaintiff’s marks -- of bad faith.

Defendants

continued using the “FLAT RATE” name even after acknowledging
that it would confuse customers and after commencement of this
lawsuit.

They have knowingly taken advantage of at least one

confused customer.

Defendants have not responded with any facts

that show good faith.
13

The bad faith factor therefore favors Plaintiff.
vii. Quality of defendant’s product
“[W]here the junior user’s [service] is approximately the
same quality as the senior user’s, there is a greater likelihood
of confusion.”
Cir. 2004).

Savin Corp. v. Savin Grp., 391 F.3d 439, 461 (2d

Plaintiff has argued the opposite here -- that

Defendants offer inferior moving services.

This fact makes

consumers less likely to confuse Defendants’ services with
Plaintiff’s higher-quality offering.
viii. Sophistication of the buyers
The more sophisticated the purchaser, the less likely that
she will be confused by similar marks.

Savin, 391 F.3d at 461.

Purchasers of higher cost goods or services are presumed to be
more discriminating.

Id.

There is no indication that

Plaintiff’s customers are of any particular sophistication
level.

This factor is neutral.

B. Balancing
Based on the weight of the Polaroid factors, consumer
confusion is likely here.

Five of the eight factors fall in

Plaintiff’s favor, and only one factor supports Defendants.
Especially important is the significant evidence of actual
customer confusion.

Plaintiff’s motion for summary judgment is

granted as to the federal trademark infringement and unfair
competition claims.
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II. STATE COMMON LAW
“The elements necessary to prevail on causes of action for
trademark infringement and unfair competition under New York
common law mirror the Lanham Act claims.”

Kaplan, Inc. v. Yun,

2014 WL 1689040, at *351 (S.D.N.Y. Apr. 30, 2014) (internal
quotation marks omitted).

A claim of unfair competition under

New York law additionally requires evidence of defendant’s bad
faith.

Id.

As discussed, Plaintiff has shown Defendants’ bad

faith with respect to federal trademark infringement.
Plaintiff’s motion for summary judgment is granted on the state
trademark infringement and unfair competition claims.
III. FEDERAL CYBERSQUATTING
“Cybersquatting involves the registration as domain names of
well-known trademarks by non-trademark holders who then try to
sell the names back to the trademark owners.”

Sporty’s Farm

L.L.C. v. Sportsman’s Mkt., Inc., 202 F.3d 489, 493 (2d Cir.
2000).

A claim under the Anticybersquatting Consumer Protection

Act, 15 U.S.C. § 1125(d), requires a showing that the marks in
question (1) “were distinctive at the time the domain name was
registered; (2) the infringing domain names complained of are
identical to or confusingly similar to plaintiff’s mark; and (3)
the infringer has a bad faith intent to profit from that mark.”
Elastic Wonder, Inc. v. Posey, 2015 WL 273691, at *5 (S.D.N.Y.
Jan. 22, 2015).
15

A “bad faith intent to profit” is a term of art in the
statute and cannot be equated with “bad faith” in other contexts
(such as trademark infringement).
n.13.

Sporty’s, 202 F.3d at 499

A plaintiff must show that the defendant’s use of the

domain name is “an attempt to profit specifically from
‘squatting’ on the domain name with bad faith,” rather than
“simply . . . another aspect of the alleged trademark
infringement.”

Kaplan, 2014 WL 1689040, at *351.

The statute

outlines nine nonexclusive factors to be taken into account in
determining the infringer’s bad faith, 15 U.S.C.
§ 1125(d)(1)(B)(i), in addition to the “unique circumstances” of
the case, Sporty’s, 202 F.3d at 499.
The anticybersquatting statute was created to address “the
Internet version of a land grab,” Lewittes v. Cohen, 2004 WL
1171261, at *8 (S.D.N.Y. May 26, 2004), and not as “an allpurpose tool designed to allow the holders of distinctive marks
the opportunity to acquire any domain name confusingly similar
to their marks,” Gioconda Law Grp. PLLC v. Kenzie, 941 F. Supp.
2d 424, 437 (S.D.N.Y. 2013).

Thus, through the intent

requirement, “Congress [has] shielded from liability” even some
“conduct that might annoy or frustrate mark holders.”

Id.

Plaintiff has not proven as a matter of law the specific bad
faith intent by Defendants required for a cybersquatting claim.
No evidence has been presented with respect to Defendants’
16

intent in registering their domain names.

Plaintiff does not

even assert that Defendants had knowledge of Plaintiff’s marks
before Defendants purchased “flatratemovers.com” in 2001.
Even though Defendants had such knowledge when registering
subsequent domain names, that fact is insufficient to show that
Defendants “squatted” with bad faith intent.

See Kaplan, 2014

WL 1689040, at *351 (dismissing cybersquatting claim that
alleged only knowledge of Plaintiff’s mark).

Here, “[a]

reasonable factfinder could conclude that [Defendants were] not
trying to extort a particular (or any) trademark holder.”

Cello

Holdings, L.L.C. v. Lawrence-Dahl Companies, 89 F. Supp. 2d 464,
474 (S.D.N.Y. 2000) (finding a genuine issue of material fact as
to cybersquatting claim).
IV. LIABILITY OF INDIVIDUAL DEFENDANTS
Personal liability is appropriate for an individual who is
a “moving, active, conscious force” behind the trademark
infringement.

Elastic Wonder, 2015 WL 273691, at *4.

Individuals may be liable even if their exact corporate title is
unknown.

Id.; Chloe v. Queen Bee of Beverly Hills, LLC, 2011 WL

3678802, at *6 (S.D.N.Y. Aug. 19, 2011).
Both Eliyahu Alush and Moshe Alush have stated that they
are owners of the corporation.

Both men have admitted their

responsibility for advertising the company’s infringing marks

17

over the years and overseeing the website.

They are therefore

personally liable for the infringement.
The third individual defendant, Itzhak Alush, is alleged to
have incorporated the company in 2003 and to be an owner.
purchased one of the company’s Internet domain names.
presents no other evidence as to his active role.

He

Plaintiff

There is a

question of fact as to his involvement in the infringement.

See

Eu Yan Sang Int’l Ltd. v. S & M Enterprises (U.S.A.) Enter.
Corp., 2010 WL 3824129, at *3 (E.D.N.Y. Sept. 8, 2010) (no
personal liability for trademark infringement where “record is
silent . . . as to the extent of [the individual’s] involvement
in and control over [the company’s] decision making”).
V. ASSERTED DEFENSES
Defendants mention several defenses in wholly conclusory
fashion.

Two warrant brief discussion.

The first is laches.

Laches is an equitable defense to injunctive relief where a
plaintiff fails to bring its action in a timely manner.

“The

determination of whether laches bars a plaintiff from equitable
relief is entirely within the discretion of the trial court.”
Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 17 F.3d
38, 44 (2d Cir. 1994).
It is well established that “laches is not a defense
against injunctive relief when the defendant intended the
infringement.”

Hermes Int’l v. Lederer de Paris Fifth Ave.,
18

Inc., 219 F.3d 104, 107 (2d Cir. 2000).

Here, Defendants’ bad

faith infringement has been shown and, as a result, laches is
unavailable to them.
The second defense is prior use.

Defendants state that

they began using the “FLAT RATE” name in 2003.

Plaintiff

applied for its trademark in 2002, however, which creates its
right of priority as of that date.

15 U.S.C. § 1057(c).

VI. INJUNCTIVE RELIEF
Although an injunction need not necessarily follow from a
finding of trademark infringement, see Beastie Boys v. Monster
Energy Co., 2015 WL 736029, at *3 (S.D.N.Y. Feb. 20, 2015), the
traditional four-factor test required for injunctive relief is
easily met here, see id., and does not require in-depth
discussion.
Accordingly, pursuant to 15 U.S.C. § 1116(a), defendants
FlatRate Moving & Storage, Inc., Moshe Alush, Eliyahu Alush, and
all affiliates, shall:
be enjoined from using “FLAT RATE MOVERS,” “FLAT RATE
MOVING,” or any other confusingly similar words, in
connection with moving and storage services, which
includes ending the use of any Internet domain names
that incorporate the word “FLATRATE” in connection
with moving and storage services; and
file with the Court and serve on Plaintiff, within
thirty
days
after
entry
and
service
of
this
injunction, a sworn report detailing compliance with
the injunction.

19

CONCLUSION
Plaintiff’s motion for summary judgment as to the federal
and New York state trademark infringement and unfair competition
claims is granted against all Defendants except Itzhak Alush.
Summary judgment is denied on the cybersquatting claim.
Injunctive relief is granted as described above.
Within ten days, Plaintiff shall inform the Court whether
it seeks a trial on the outstanding claims, or whether it seeks
to proceed directly to a damages inquest based on the resolved
claims.
SO ORDERED.
Date:

New York, New York
April 22, 2015
S/______________________________
MIRIAM GOLDMAN CEDARBAUM
United States District Judge

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