Bravado Intern. Group Merchandising Svcs. v. Ninna
| Decision Date | 27 August 2009 |
| Docket Number | No. CV-08-3123 (CPS).,CV-08-3123 (CPS). |
| Citation | 655 F.Supp.2d 177 |
| Parties | BRAVADO INTERNATIONAL GROUP MERCHANDISING SERVICES, INC., et al., Plaintiff, v. NINNA, INC., et al., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Kenneth Alan Feinswog, Los Angeles, CA, for Plaintiff.
Jacob Michailov, Brooklyn, NY, pro se.
Peter Michailow, Brooklyn, NY, pro se.
David Michailow, Whitestone, NY, pro se.
No objections to the Report and Recommendation of Magistrate Judge Cheryl L. Pollak dated August 18, 2009 having been filed by the parties, the Report and Recommendation is hereby adopted. Counsel for the plaintiff is directed to serve a copy of the within on the defendants at their last known address, to file proof of service with the court, and to settle a judgment on notice in conformity with the Report and Recommendation not later than September 15, 2009. The case is again referred to Magistrate Judge Pollak for pretrial proceedings with respect to the remaining defendant, Peter Michailow.
The Clerk is directed to transmit a copy of the within to all parties and to the assigned Magistrate Judge.
SO ORDERED.
REPORT AND RECOMMENDATION
On July 31, 2008, plaintiffs Bravado International Group Merchandising Services, Inc. and Bravado International Group Limited (collectively, "Bravado" or "plaintiffs") commenced this action against defendants Ninna, Inc. ("Ninna"), Heyclick, Inc. ("Heyclick"), Hollywood Merchandise Corp. ("Hollywood"), I Schwartz Inc. ("I Schwartz"), Cmegamall.com, Rocktshirtspunk.com, Mosh-pitt.com, Jacob Michailov, also known as Yaakov Michailov, also known as Yakov Michailov, Peter Michailow, also known as Pinhas Michailow, and David Michailow, seeking a temporary restraining order and preliminary injunction prohibiting defendants from selling unauthorized merchandise bearing the names of certain musical groups and performers. On August 1, 2008, the court issued a temporary restraining order and an order of seizure directing the seizure and impoundment of unauthorized merchandise in the defendants' possession. (Feinswog 8/18 Decl.;1 Prelim. Inj. Op.2 at 2). Following the seizure, which was conducted on August 5, 2008, the court issued an order dated October 6, 2008, 2008 WL 4534039, entering a preliminary injunction. .
On November 20, 2008, plaintiffs requested that defaults enter against all defendants except Peter and David Michailow. On December 4 and 5, 2008, based on their failure to answer or otherwise respond to the Complaint, the Clerk of Court entered defaults against each of the named defendants with the exception of Peter and David Michailow and I Schwartz. With respect to I Schwartz and David Michailow, plaintiffs have not submitted any evidence that either of these defendants have been served with the Complaint, although David Michailow did make a pro se appearance before this Court on March 18, 2009; defaults, therefore, have not entered against either. On October 8, 2008, Peter Michailow submitted a document that was docketed as an answer, but which plaintiffs contend was actually a response submitted on behalf of defendant Ninna to the motion for preliminary injunction. Plaintiffs now move for entry of a default judgment against Peter Michailow and against the remaining defendants against whom defaults were previously entered.3
This Court respectfully sets forth the following recommendations.
Plaintiff Bravado International Group Merchandising Services, Inc. ("Bravado Inc.") is a California corporation with a place of business in New York, engaged in the business of marketing and selling merchandise bearing the names, trade names, trademarks and logos of various musical groups and performers throughout the United States. (Compl.4 ¶¶ 1, 8). The various musical groups and performers include Korn, Guns N' Roses, The Clash, Iron Maiden, Cradle of Filth, Depeche Mode, Led Zeppelin, Motorhead, and Morrissey, all of whom have entered into licensing agreements with Bravado International Group, Limited ("Bravado Ltd."), a corporation duly organized in the United Kingdom. (Id. ¶¶ 2, 8, 11).5
Plaintiffs allege that the defendants are unlicensed distributors who sold or attempted to sell and distribute shirts and other items bearing the names, trade names, designs, logos or likenesses of some of these musical groups and performers for which Bravado Inc. holds the exclusive license (the "Bootleg Merchandise"). (Id. ¶ 9). According to the Complaint, defendants Ninna, Heyclick, Hollywood, and I Schwartz are corporations that have transacted business in the Eastern District of New York and have engaged in the business of distributing the Bootleg Merchandise. (Id. ¶ 4). Specifically, plaintiffs allege that defendants Peter Michailow and David Michailow operate I Schwartz, located at 32 33rd Street in Brooklyn. (Feinswog 7/31 Decl.6 ¶ 7). This same address is where Ninna and Heyclick operate their business and is listed as the return address for the shipment of infringing goods by Ninna, using the email address Cmegamall.com. (Id. ¶ 7). Information obtained from company catalogs, the website Better-Whois.com, and the New York Department of State demonstrate that I Schwartz, Ninna and Heyclick use the same facsimile number, that the telephone numbers associated with Ninna are registered to Pinhas Michailow and Yaakov Michailov,7 and the administrative contact for Heyclick is "Pete M," which plaintiffs believe is Peter Michailow.8 (Id. ¶¶ 8, 9, 10, 11). Yaakov Michailov is listed as the owner of the Mosh-pitt.com website and as Hollywood's agent for service of process. (Id. ¶¶ 12, 14). Hollywood's website— Rocktshirtspunk.com—advertises and sells infringing items, as does the Cmegamall.com website, which falsely represents that all the merchandise they sell is licensed. (Id. ¶¶ 15, 16, 19).
In March 2004, plaintiffs commenced an action in federal district court for the Central District of California (the "California action") against several parties who were selling counterfeit merchandise. (Id. 112); Bravado Int'l Group Merch. Servs. v. Nettillect Inc., No. 2:04 CV 2116 (C.D. Cal. filed Mar. 29, 2004). Based on information developed during the course of that case, plaintiffs learned that I Schwartz, Peter Michailow and David Michailow were the suppliers of certain of the infringing items; accordingly, they were thereafter added as defendants to the California action. (Feinswog 7/31 Decl. ¶ 2). On August 11, 2005, the court in the California action entered a judgment against I Schwartz and Peter and David Michailow in the amount of $255,186.57. (Id. 113, Ex. B). The court also issued a permanent injunction enjoining them from selling merchandise bearing the names, trademarks and likenesses of Morrissey, The Clash, and Guns N' Roses. (Id.) The judgment was filed in the U.S. District Court for the Southern District of New York on October 27, 2005. (Id.)
According to plaintiffs, shortly after being added as a defendant in the California action, David Michailow transferred his condominium located on East 2nd Street in Brooklyn to Yaakov Michailov, who in turn sold it to Borjana Mihajlovic-Cekic for $235,000. (Id. ¶¶ 4, 5, Exs. C, D). Plaintiffs believe that the transfer from David Michailow to Yaakov Michailov was a fraudulent transfer designed to prevent plaintiffs from collecting on the judgment entered in the California action. (Id. ¶ 6).
On July 31, 2008, plaintiffs commenced this action, alleging trademark infringement, false designation of origin, unfair competition and right of publicity violations against the defendants. On August 1, 2008, the district court issued an order of seizure directing the seizure and impoundment of unauthorized merchandise in the defendants' possession, pursuant to which plaintiffs seized 41 silk screens bearing the names, trademarks, and/or likenesses of the musical performers that are the subject of this action. (Feinswog 1/30 Decl.9 ¶ 3; Prelim. Inj. Op. at 2). During the course of the search, plaintiffs' counsel observed silk screening equipment that could print up to six shirts at a time. (Feinswog 1/30 Decl. ¶ 3). According to plaintiffs' counsel, defendants' records were in disarray; there were a minimal amount of sales records; and yet the defendants had invested "a significant amount of money in silk screens and silk screen equipment." (Id.)
On October 8, 2008, Peter Michailow filed a document that was labeled on the docket sheet as an "Answer" and could be construed as a submission on behalf of Ninna. See discussion infra at 186-88. Other than this submission, and despite proper service, the defendants failed to file answers or otherwise respond to the Complaint.
On October 15, 2008, defendants Jacob Michailov and Peter Michailow appeared for a conference before this Court. At that time, they were advised that they would be required to retain counsel for the corporate defendants and that if they wanted to contest plaintiffs' claims, they would be required to file answers by November 17, 2008. (See Conf. Tr. 6:6-8, 7:16-19, 9:7-11, 11:9-24, Oct. 15, 2008). On October 28, 2008, Peter Michailow filed a Motion to Appoint Counsel. The motion was denied by this Court in an Order dated November 4, 2008 because Mr. Michailow failed to provide the information necessary to demonstrate an inability to obtain counsel. Defendants took no further action.
On December 4 and 5, 2008, defaults were entered against the defaulting defendants, and on January 30, 2009, plaintiffs moved for default judgment against them and against Peter Michailow. The motion was referred to the undersigned on February 2, 2009 for an inquest as to jurisdiction, damages, and other relief. This Court issued an Inquest Order on the same day, requiring that...
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