ABC v. DEF

Filing 44

FINAL DEFAULT JUDGMENT AND PERMANENT INJUNCTION ORDER: Judgment is granted in favor of Plaintiff on all claims properly pleaded against Defaulting Defendants in the Complaint; IT IS FURTHER ORDERED, ADJUDGED AND DECREED that because it would ser ve both the compensatory and punitive purposes of the Lanham Act's prohibitions on willful infringement, and because Plaintiff has sufficiently set forth the basis for the statutory damages award requested in its Motion for Default Judgment, the Court finds such an award to be reasonable and Plaintiff is awarded statutory damages in the amount of $50,000.00 ("Defaulting Defendants' Individual Damages Award) against each of the forty-three (43) Defaulting Defendants purs uant to Section 15 U.S.C. § 1117(c) of the Lanham Act, plus post- judgment interest, for a total of Two Million One Hundred Fifty Thousand Dollars ($2,150,000.00). The Court releases the Five Thousand U.S. Dollar ($5,000.00) securit y bond that Plaintiff submitted in connection with this action to counsel for Plaintiff, Epstein Drangel, LLP, 60 East 42nd Street, Suite 2520, New York, NY 10165; and This Court shall retain jurisdiction over this matter and the parties in order to construe and enforce this Order. (and as further set forth herein.) SO ORDERED. (Signed by Judge J. Paul Oetken on 12/3/2021) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BANG & OLUFSEN A/S,
Plaintiff
v.
15626122961,
18520780903,
ALICY2493,
AMILA,
ANDY
BOUTIQUE
STORE,
BBLISHIWO, BLUE SKY GREEN SEA,
BOOMLY,
BOYCE,
CAPFUYOU5703,
CFORKTY, CZYOUTH0222, DEIDEI6666,
DHYYOUTH0113, DSLKJFO5, DTYO31WW,
DUXIAOXUELN99075, ESEPRENY BABY'S,
FFGHM,
FGJD7UY63,
FGSRTWARTAW,
FGXXHGRT,
FHGDTR,
FHGRTRE,
FLOWERTON, FLTYRJVRG, FULL CAT,
GCJAETWRQWEQW, HAPPY-LXL, HILLKY,
HIS983Y7, HOLLESPIRATE, HOME CHENKU,
HOP WITH YOUR FEELING, HOURMINU5,
ILUMINATY, INABINE, IRNTBFDOE, ISNJA,
JIANGKUN HOME STORE, JIECHENGDIANZI,
JUNETRY, KUANGDUANG, LKSDJKGAL,
LUOTIANXIU,
MARICHU,
NBSQ,
NVMCFHSERT, PDORMMGDF, PEAHER,
PERSPECTIVE01,
PIPIXIADEAI,
QITANGDASHENGSUN,
RENXINGBENSHAN, RRVTSPPPPP, SALE

CIVIL ACTION No.
20-cv-10416 (JPO)
FINAL DEFAULT JUDGMENT
AND PERMANENT INJUNCTION
ORDER

OFFICIAL STORE, SANKUTOY20, SHOPSTORE,
SOLEDABRAVOIMPORT,
SONGYUANYU, STT6556, SUNCHENGJING,
SUNNY118, SUNSHINE WALL, SUNYANZHI,
SZMLOVE, VCGJV, WANGSAN, WBT525,
WEICHENPEN,
WSP5322132,
XIAOBINGFENGING,
XULULUO,
XUMINGSHOP, YANHEMUKQ, YIFANG2015,
ZHAOYALIN5155
and
YUERNCVHF,
ZHOU12345,
Defendants

GLOSSARY
Term

Definition

Docket
Entry
Number
N/A

15626122961, 18520780903, alicy2493, amila,
Andy boutique store, BBlishiwo, Blue sky Green sea,
BOOMLY,
boyce,
capfuyou5703,
cforkty,
czyouth0222,
deidei6666,
dhyyouth0113,
DSLKJFO5,
dtyo31ww,
duxiaoxueln99075,
Esepreny Baby's, FFGHM, fgjd7uy63, fgsrtwartaw,
fgxxhgrt, fhgdtr, fhgrtre, flowerton, fltyrjvrg, full cat,
gcjaetwrqweQW, Happy-LXL, HILLKY, his983y7,
hollespirate, Home ChenKu, hop with your feeling,
hourminu5, Iluminaty, InaBine, irntbfdoe, ISNJA,
jiangkun home store, jiechengdianzi, junetry,
kuangduang, lksdjkgal, luotianxiu, Marichu, NBsq,
nvmcfhsert, pdormmgdf, peaher, Perspective01,
pipixiadeai, qitangdashengsun, renxingbenshan,
rrvtsppppp, SALE Official Store, sankutoy20, shopstore, soledabravoimport, songyuanyu, stt6556,
sunchengjing, Sunny118, Sunshine wall, sunyanzhi,
szmLOVE, VCGJV, wangsan, wbt525, weichenpen,
wsp5322132,
Xiaobingfenging,
xululuo,
xumingshop, YanhemukQ, YIFang2015, yuerncvhf,
zhaoyalin5155 and zhou12345
15626122961, 18520780903, amila, Andy boutique
store, Blue sky Green sea, capfuyou5703, cforkty,
czyouth0222, deidei6666, dhyyouth0113, FFGHM,
fgsrtwartaw, fgxxhgrt, fltyrjvrg, gcjaetwrqweQW,
his983y7, hollespirate, Home ChenKu, hop with your
feeling, InaBine, irntbfdoe, jiechengdianzi, junetry,
kuangduang, Marichu, NBsq, peaher, pipixiadeai,
qitangdashengsun,
sankutoy20,
shop-store,
soledabravoimport,
sunchengjing,
Sunny118,
sunyanzhi,
szmLOVE,
wangsan,
wbt525,
xumingshop, YanhemukQ, YIFang2015, yuerncvhf,
and zhou12345
Wish.com, a San Francisco, California-based, online
marketplace and e-commerce platform owned by
ContextLogic, Inc., a Delaware corporation
(“ContextLogic”), that allows manufacturers and
other third-party merchants, like Defendants, to
advertise, distribute, offer for sale, sell and ship their

N/A

Plaintiff or Bang Bang & Olufsen A/S
& Olufsen
Defendants

Defaulting
Defendants

Wish

i

N/A

N/A

Sealing Order
Complaint
Application

Serup Dec.
Drangel Dec.
TRO

PI Show Cause
Hearing
PI Order
B&O Products

B&O Marks

retail products, which, upon information and belief,
primarily originate from China, directly to consumers
worldwide and specifically to consumers residing in
the U.S., including New York
Order to Seal File entered on December 10, 2020
Plaintiff’s Complaint filed on December 10, 2020
Plaintiff’s Ex Parte Application for: 1) a temporary
restraining order; 2) an order restraining Merchant
Storefronts (as defined infra) and Defendants’ Assets
(as defined infra) with the Financial Institutions (as
defined infra); 3) an order to show cause why a
preliminary injunction should not issue; 4) an order
authorizing bifurcated and alternative service and 5)
an order authorizing expedited discovery filed on
December 10, 2020
Declaration of Morten R. Serup in Support of
Plaintiff’s Application
Declaration of Jason M. Drangel in Support of
Plaintiff’s Application
1) Temporary Restraining Order; 2) Order
Restraining Merchant Storefronts and Defendants’
Assets with the Financial Institutions; 3) Order to
Show Cause Why a Preliminary Injunction Should
Not Issue; 4) Order Authorizing Bifurcated and
Alternative Service; and 5) Order Authorizing
Expedited Discovery entered on December 21, 2020
January 6, 2021 hearing to show cause why a
preliminary injunction should not issue
January 11, 2021 Preliminary Injunction Order
High-end luxury Danish consumer electronics,
including the BEOPLAY wireless earbuds,
BEOPLAY and BEOSOUND portable sneakers and
BEOPLAY headphones
U.S. Trademark Registration Nos.: 3,106,984 for “
” for a variety of goods in Classes 9, 20, 35, 37,
41 and 42; 1,007,565 for “
” for a variety of
goods in Classes 7, 9, 11, 12 and 15; 3,063,786 for
“BANG & OLUFSEN” for a variety of goods in
Classes 9, 20, 35, 37, 41 and 42; 1,006,022 for
“BANG & OLUFSEN” for a variety of goods in
Class 9; 4,489,925 for “BEOPLAY” for a variety of
ii

Dkt. 1
Dkt. 4
Dkts. 9-12

Dkt. 12
Dkt. 11
Dkt. 15

N/A
Dkt. 13
N/A

N/A

Counterfeit
Products

Infringing
Listings
User Accounts

Merchant
Storefronts

Defendants’
Assets
Defendants’
Financial
Accounts
Financial
Institutions

Third Party
Service
Providers

goods in Classes 9, 20, 35, 36 and 38; and 2,340,801
for “BEOSOUND” for a variety of goods in Class 9
Products bearing or used in connection with the B&O
Marks, and/or products in packaging and/or
containing labels bearing the B&O Marks, and/or
bearing or used in connection with marks that are
confusingly similar to the B&O Marks and/or
products that are identical or confusingly similar to
the B&O Products
Defendants’ listings for Counterfeit Products
Any and all websites and any and all accounts with
online marketplace platforms such as Wish, as well
as any and all as yet undiscovered accounts with
additional online marketplace platforms held by or
associated with Defendants, their respective officers,
employees, agents, servants and all persons in active
concert or participation with any of them
Any and all User Accounts through which
Defendants, their respective officers, employees,
agents, servants and all persons in active concert or
participation with any of them operate storefronts to
manufacture, import, export, advertise, market,
promote, distribute, display, offer for sale, sell and/or
otherwise deal in Counterfeit Products, which are
held by or associated with Defendants, their
respective officers, employees, agents, servants and
all persons in active concert or participation with any
of them
Any and all money, securities or other property or
assets of Defendants (whether said assets are located
in the U.S. or abroad)
Any and all financial accounts associated with or
utilized by any Defendants or any Defendants’ User
Accounts or Merchant Storefront(s) (whether said
account is located in the U.S. or abroad)
Any banks, financial institutions, credit card
companies and payment processing agencies, such as
ContextLogic, PayPal Inc. (“PayPal”), Payoneer Inc.
(“Payoneer”), PingPong Global Solutions, Inc.
(“PingPong”) and other companies or agencies that
engage in the processing or transfer of money and/or
real or personal property of Defendants
Online marketplace platforms, including, without
limitation, those owned and operated, directly or
indirectly, by ContextLogic, such as Wish, as well as
iii

N/A
N/A

N/A

N/A
N/A

N/A

N/A

Defendants’
Frozen Assets

Plaintiff’s
Motion for
Default
Judgment
Futterman Aff.

any and all as yet undiscovered online marketplace
platforms and/or entities through which Defendants,
their respective officers, employees, agents, servants
and all persons in active concert or participation with
any of them manufacture, import, export, advertise,
market, promote, distribute, offer for sale, sell and/or
otherwise deal in Counterfeit Products which are
hereinafter identified as a result of any order entered
in this action, or otherwise
Defendants’ Assets from Defendants’ Financial
Accounts that were and/or are attached and frozen or
restrained pursuant to the TRO and/or PI Order, or
which are attached and frozen or restrained pursuant
to any future order entered by the Court in this Action
Plaintiff’s Motion for Default Judgment and a
Permanent Injunction Against Defaulting Defendants
filed on August 11, 2021
Affidavit of Danielle (Yamali) Futterman in Support
of Plaintiff’s Motion for Default Judgment

iv

N/A

TBD

TBD

This matter comes before the Court by motion filed by Plaintiff for the entry of final
judgment and permanent injunction by default against Defaulting Defendants for Defaulting
Defendants’ trademark infringement, trademark counterfeiting, false designation of origin, passing
off and unfair competition and related state and common law claims arising out of Defaulting
Defendants’ unauthorized use of Plaintiff’s B&O Marks without limitation, in their manufacturing,
importing, exporting, advertising, marketing, promoting, distributing, displaying or offering for
sale and/or selling and/or sale of Counterfeit Products.1
The Court, having considered the Memorandum of Law and Affidavit of Danielle (Yamali)
Futterman in support of Plaintiff’s Motion for Default Judgment and a Permanent Injunction
Against Defaulting Defendant, the Certificates of Service of the Summons and Complaint, the
Certificate of the Clerk of the Court stating that no answer has been filed in the instant action, and
upon all other pleadings and papers on file in this action, it is hereby ORDERED, ADJUDGED
AND DECREED as follows:
I.

Defaulting Defendants’ Liability

1) Judgment is granted in favor of Plaintiff on all claims properly pleaded against
Defaulting Defendants in the Complaint;
II.

Damages Awards

1) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that because it would serve both
the compensatory and punitive purposes of the Lanham Act’s prohibitions on willful
infringement, and because Plaintiff has sufficiently set forth the basis for the statutory damages
award requested in its Motion for Default Judgment, the Court finds such an award to be
reasonable and Plaintiff is awarded statutory damages in the amount of $50,000.00
Where a defined term is referenced herein and not defined herein, the defined term should be understood as it is
defined in the Glossary.
1

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(“Defaulting Defendants’ Individual Damages Award”) against each of the forty-three (43)
Defaulting Defendants pursuant to Section 15 U.S.C. § 1117(c) of the Lanham Act, plus postjudgment interest, for a total of Two Million One Hundred Fifty Thousand Dollars
($2,150,000.00).
III.

Permanent Injunction

2) IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that Defaulting Defendant, its
respective officers, agents, servants, employees, and all persons acting in concert with or under
the direction of Defaulting Defendants (regardless of whether located in the United States or
abroad), who receive actual notice of this Order are permanently enjoined and restrained from:
A. manufacturing, importing, exporting, advertising, marketing, promoting, distributing,
displaying, offering for sale, selling and/or otherwise dealing in Counterfeit Products
or any other products bearing the B&O Marks and/or marks that are confusingly similar
to, identical to and constitute a counterfeiting and/or infringement of the B&O Marks;
B. directly or indirectly infringing in any manner Plaintiff’s B&O Marks;
C. using any reproduction, counterfeit, copy or colorable imitation of Plaintiff’s B&O
Marks to identify any goods or services not authorized by Plaintiff;
D. using Plaintiff’s B&O Marks, or any other marks that are confusingly similar to the
B&O Marks on or in connection with the manufacturing, importing, exporting,
advertising, marketing, promoting, distributing, displaying, offering for sale, selling
and/or otherwise dealing in the Counterfeit Products;
E. secreting, concealing, destroying, altering, selling off, transferring or otherwise
disposing of and/or dealing with: (i) Counterfeit Products; (ii) any computer files, data,
business records, documents or any other records or evidence relating to:
2

i. Defaulting Defendants’ User Accounts and/or Merchant Storefronts;
ii. Defaulting Defendants’ Assets; and
iii. the manufacture, importation, exportation, advertising, marketing, promotion,
distribution, display, offering for sale and/or sale of Counterfeit Products by
Defaulting Defendants and by their respective officers, employees, agents,
servants and all persons in active concert or participation with any of them; and
F. effecting assignments or transfers, forming new entities or associations, or creating
and/or utilizing any other platform, User Accounts, Merchant Storefronts or any other
means of importation, exportation, advertising, marketing, promotion, distribution,
display, offering for sale and/or sale of Counterfeit Products for the purposes of
circumventing or otherwise avoiding the prohibitions set forth in this Order.
2)

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defaulting Defendants
must deliver up for destruction to Plaintiff any and all Counterfeit Products and any and all
packaging, labels, tags, advertising and promotional materials and any other materials in the
possession, custody or control of Defaulting Defendants that infringe any of Plaintiff’s
trademarks other rights including, without limitation, the B&O Marks, or bear any marks that
are confusingly similar to the B&O Marks pursuant to 15 U.S.C. § 1118;

3)

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Third-Party Service
Providers and Financial Institutions are permanently enjoined and restrained from:
A. secreting, concealing, destroying, altering, selling off, transferring or otherwise
disposing of and/or dealing with any computer files, data, business records, documents
or any other records or evidence relating to Defaulting Defendants’ Assets from or to
Defaulting Defendants’ Financial Accounts; and

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B. knowingly instructing, aiding or abetting any other person or business entity in
engaging in any of the activities referred to in subparagraphs III(1)(A) through
III(3)(A) above.
IV.

Dissolution of Rule 62(a) Stay

1) IT IS FURTHER ORDERED, as sufficient cause has been shown, the 30-day automatic stay
on enforcing Plaintiff’s judgment, pursuant to Fed. R. Civ. Pro. 62(a) is hereby dissolved.
V.

Miscellaneous Relief

1) Defaulting Defendants may, upon proper showing and two (2) business days written notice
to the Court and Plaintiff’s counsel, appear and move for dissolution or modification of the
provisions of this Order concerning the restriction or restraint of Defaulting Defendants’
Frozen Assets, Defaulting Defendants’ Additional Assets and/or Defaulting Defendants’
Additional Financial Accounts;
2) Any failure by Defaulting Defendants to comply with the terms of this Order shall be deemed
contempt of Court, subjecting Defaulting Defendants to contempt remedies to be determined
by the Court, including fines and seizure of property;
3) The Court releases the Five Thousand U.S. Dollar ($5,000.00) security bond that Plaintiff
submitted in connection with this action to counsel for Plaintiff, Epstein Drangel, LLP, 60 East
42nd Street, Suite 2520, New York, NY 10165; and
4) This Court shall retain jurisdiction over this matter and the parties in order to construe and
enforce this Order.

4

SO ORDERED.
December 3, 2021
New York, New York

HON. J. PAUL OETKEN
UNITED STATES DISTRICT JUDGE

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