Better Keiki, LLC v. MairicoDirect et al

Filing 59

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 57 Order, Report and Recommendations. GRANTING IN PART AND DENYING IN PART 50 Sealed Motion filed by Better Keiki, LLC. Signed by District Judge Amos L. Mazzant, III on 11/30/2018. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

BETTER KEIKI, LLC d/b/a MAIRICO
and SENACO DIRECT,
Plaintiff,
v.

MAIRICODIRECT, ET AL.,
Defendants.

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ACTION NO. 4:17-CV-850
JUDGE MAZZANT/JUDGE JOHNSON

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On October 23, 2018, the Magistrate Judge entered proposed findings of fact and recommendations
(Dkt. #57) that Plaintiff Better Keiki, LLC’s (“Plaintiff”) Motion for Entry of Final Default
Judgment Against Defendants (Dkt. #50) be GRANTED IN PART and DENIED IN PART.
In the Report and Recommendation entered by the United States Magistrate Judge the
Court ordered Plaintiff to serve, by certified mail, Defendants with a copy of the Report and
Recommendation. See Dkt. #57 at 15. Plaintiff filed a Certification of Notice, certifying it served
all Defendants and Amazon.com with the Report and Recommendation on November 6, 2018. See
Dkt. #58. Plaintiff previously served Defendants by email and mail carrier on several occasions
throughout the pendency of this lawsuit. See Dkts. #36, #48, #55.
Having received the Report of the United States Magistrate Judge, and no objections
thereto having been timely filed, the Court is of the opinion that the findings and conclusions of

the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and
conclusions of the Court. Therefore, Plaintiff’s Motion for Entry of Final Default Judgment (Dkt.
#50) is GRANTED IN PART and DENIED IN PART.
Therefore, Plaintiff’s Motion for Entry of Final Default Judgment Against Defendants
(Dkt. #50) is GRANTED, as follows:
Defendants MairicoDirect, KamiroUS, DragonB, ForLovingYou, HOUSEWARE,
NewChoice USA, CPI Delta, CMR.Alew, FranceChef, SunnyStoreLove, and NTTL are hereby
jointly and severally liable for the $1,000,000.00 judgment previously entered in this matter. See
4:17-cv-850, Dkts. 45, 53.
Plaintiff is entitled to an award of reasonable attorneys’ fees, under 15 U.S.C. § 1117(a).
Plaintiff shall submit the appropriate documentation of such fees for the Court’s review within
fourteen (14) days.
Further, the Court hereby enters a permanent injunction as follows:
(1) Permanent Injunctive Relief:
Defendants MairicoDirect, KamiroUS, DragonB, ForLovingYou, HOUSEWARE,
NewChoice USA, CPI Delta, CMR.Alew, FranceChef, SunnyStoreLove, and NTTL, and each of
its members, officers, agents, employees, and those persons in active concert or participation with
them who receive actual notice of this Order by personal service or otherwise, whether acting
directly or through any entity, corporation, subsidiary, division, affiliate or other device, are hereby
permanently restrained and enjoined from:
a. manufacturing or causing to be manufactured, importing, advertising or promoting,
distributing, selling, or offering to sell their counterfeit and infringing goods bearing
Plaintiff’s MAIRICO trademark;

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b. using the MAIRICO trademark in connection with the sale of any unauthorized goods;
c. using Plaintiff’s trademarks or any mark or trade dress similar thereto, in connection
with the sale of any unauthorized goods;
d. using any logo, trade name, or trademark or trade dress that may be calculated to falsely
advertise the services or products of Defendants as being sponsored by, authorized by,
endorsed by, or in any way associated with Plaintiff;
e. falsely representing themselves as being connected with Plaintiff, through sponsorship
or association, or engaging in any act that is likely to falsely cause members of the trade
and/or of the purchasing public to believe any goods or services of Defendants, are in
any way endorsed by, approved by, and/or associated with Plaintiff;
f. using any reproduction, counterfeit, infringement, copy, or colorable imitation of
Plaintiff’s trademarks in connection with the publicity, promotion, sale, or advertising
of any goods sold by Defendants;
g. affixing, applying, annexing, or using in connection with the sale of any goods, a false
description or representation, including words or other symbols tending to falsely
describe or represent Defendants’ goods as being those of Plaintiff, or in any way
endorsed by Plaintiff and from offering such goods in commerce; and from otherwise
unfairly competing with Plaintiff;
h. using

the

following

Amazon.com

seller

IDs

A3J8RFAXD1JQ0W,

A2FWGNJY7JDBXX,

AJT25DYI9N8VQ,

A1GQ5KJZX714GM,

A19R7Z7Y0UGNKP,

A358MRFT5CUP12,

A2KTE25R4ZALX8,

AW7RHG6ANNRQ5,

A1RKQMVHN9ZSJ6,

AD7VFEWSPSI62,

A2K649AAYY4AEK (“Defendant Seller IDs”), as well as any other alias seller

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identification names being used and/or controlled by Defendants, to engage in the
business of marketing, offering to sell, and/or selling goods bearing counterfeits and
infringements of Plaintiff’s trademarks; and
i. withdrawing any funds from the possession of Amazon.com, Inc., or any of its affiliated
companies until Defendant has satisfied the monetary judgment.
(2) Additional Equitable Relief
Upon notice of the injunction, Amazon.com, Inc., shall disable and/or cease facilitating
access to the Defendant Seller IDs (as well as any other alias seller identifications) to sell products
assigned ASIN number B01HEBY216.
Upon a notice of the permanent injunction, Amazon.com, Inc., shall immediately cease
fulfillment of and sequester all goods of each Defendant bearing one or more of Plaintiff’s
trademarks in its inventory, possession, custody or control, and surrender those goods to Plaintiff.
The Court hereby DENIES Plaintiff’s Motion for Entry of Final Default Judgment Against
Defendants (Dkt. #50) in part. The Court finds Plaintiff is not entitled to additional statutory
damages in this matter, and that the $1,000,000.00 statutory damages in the consolidated case,
. 4:18-cv-226, provide Plaintiff appropriate redress because there is evidence that Defendants in

both the 4:17-cv-850 matter and the 4:18-cv-226 matter are a single operator. See Dkt. #50 at 21.
The Court, therefore, will not award additional statutory damages in this case.
IT IS SO ORDERED.
SIGNED this 30th day of November, 2018.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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