Hit Ent. v. D & L Amusement & Ent. Inc.
| Decision Date | 25 March 2010 |
| Docket Number | No. CV 07-3322(SJ)(MDG).,CV 07-3322(SJ)(MDG). |
| Citation | 702 F.Supp.2d 104 |
| Parties | LYONS PARTNERSHIP, L.P. and HIT Entertainment, Plaintiffs, v. D & L AMUSEMENT & ENTERTAINMENT, INC., Christa Tedesco, All in One Entertainment Inc., John R. Albuja, Razzle Kidazzle Inc., Linda Lippo, Bobby's World Party Center Inc., Michelle Esposito, Theresa Abreu d/b/a Sillybrations, and Julie Lofstad d/b/a a Character Creation, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
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Toby M.J. Butterfield, Matthew Kaplan, Zehra Jennifer Abdi, Cowan, Debaets, Abrahams & Sheppard LLP, New York, NY, for Plaintiffs.
Andrea E. Sacco, Camach Mauro Mulholland LLP, New York, NY, for Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
Presently before the Court is a Report and Recommendation (“Report”) prepared by Magistrate Judge Marilyn Go. Judge Go issued the Report on March 2, 2010, and provided the parties with the requisite amount of time to file any objections. Neither party filed any objections to the Report. For the reasons stated herein, this Court affirms and adopts the Report in its entirety.
A district court judge may designate a magistrate judge to hear and determine certain motions pending before the Court and to submit to the Court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within 10 days of service of the recommendation, any party may file written objections to the magistrate's report. See Id. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. See Id. The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, failure to file timely objections may waive the right to appeal this Court's Order. See 28 U.S.C. § 636(b)(1); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989).
In this case, objections to Magistrate Judge Go's recommendations were due on March 19, 2010. No objections to the Report were filed with this Court. Upon review of the recommendations, this Court adopts and affirms Magistrate Judge Go's Report in its entirety.
SO ORDERED.
REPORT AND RECOMMENDATION
Plaintiffs bring this copyright and trademark infringement action alleging that the ten defendants infringed their intellectual property rights in Barney® and Bob the Builder® characters. Defendants D & L Amusement & Entertainment Inc. (hereinafter “the D & L defendants”); Razzle Kidazzle Inc. and its alleged owner, Linda Lippo (hereinafter “the Razzle defendants”); and All in One Entertainment, Inc. and its alleged owner, John R. Albuja (hereinafter “the All in One defendants”) have never responded to the complaint nor to plaintiffs' attempts to engage in settlement discussions. The Honorable Sterling B. Johnson has referred Plaintiffs' motion for default judgment against these defendants to me for a report and recommendation as to the appropriate relief. 1 No oppositions to the motion have been filed.
For the reasons set forth below, the court respectfully recommends that plaintiffs' motion for an injunction be granted. The Court further recommends that plaintiffs be awarded damages and fees as set forth below.
The following undisputed facts are adduced from plaintiffs' First Amended Complaint (ct.doc. 29) and in submissions in support of default, and are taken as true for purposes of deciding this motion. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992) (citations omitted).
Plaintiff Lyons Partnership, L.P. (“Lyons”) is the creator of the popular children's dinosaur character Barney®, as well as, more recently, Baby Bop® and BJ® (hereinafter collectively “Barney® Characters”). Lyons owns the intellectual property rights in the Barney® characters and “is engaged in, among other things, the creation, production and distribution of books, videocassettes, television programs, and plush dolls, and has commercially exploited and licensed the Barney® Characters ...” Am. Compl. ¶¶ 2, 7. Plaintiff HIT Entertainment Inc. (“HIT”) “is a fully integrated studio that produces and distributes worldwide television programming and home entertainment, publishing, and other licensed merchandise depicting ... classic children's entertainment properties, including the Barney® Characters and the Bob the Builder® Character.” Am. Compl. ¶ 8. “HIT is the exclusive United States licensee of the intellectual property rights in and to the character Bob the Builder®.” Am. Compl. ¶ 2.
Neither Lyons nor HIT have “licensed the manufacture (other than for [their] own use), distribution, sale, or rental of any costumes for adults that depict the Barney® Characters” or the Bob the Builder® Character. Am. Compl. ¶¶ 40, 42. According to plaintiffs, “[t]he primary reason for the decision not to license adult costumes for commercial use is to preserve and carefully monitor the exposure of the Barney® Characters and the Bob the Builder® Character so that very young children will not be distressed or upset by the unpredictable (and potentially dangerous) conduct of unauthorized impersonators in knock-off costumes trading on the goodwill of the Bob the Builder® and Barney® Characters.” Am. Compl. ¶ 43.
Defendants are children's entertainment services which, among other things, use and rent “adult-sized counterfeit costumes depicting popular television and cartoon characters” for children's parties, and their owners. Am. Compl. ¶¶ 10(a), 11(a), 12(a), 13(a), 14(a).
After conducting various investigations, plaintiffs concluded that defaulting defendants were infringing their intellectual property rights by making commercial use of counterfeit costumes bearing the likeness of the Barney® and Bob the Builder® Characters. Am. Compl. ¶¶ 48-52. Specifically, its investigation of the Razzle defendants stemmed from an invoice seized pursuant to a court order from a manufacturer of counterfeit costumes in San Diego, California, which showed a sale of a number of costumes, including a “Purple Dino” costume, in 2004 to Razzle Kidazzle on an order made by Linda Lippo. Declaration of Matthew Kaplan (“First Kaplan Decl.”) (ct.doc. 58) at ¶ 9, Exh. 4. In a telephone call on May 31, 2006 initiated by investigator Joseph Leichman, a woman identifying herself as “Mary” at Razzle Kidazzle stated that the company had Barney® and Bob the Builder® costumes which Linda, the company's owner, or someone else would wear. Declaration of Joseph Leichman (ct.doc. 60) at ¶¶ 7-9. On June 9, 2006, investigator Nina Sherman and a co-investigator visited Razzle Kidazzle and spoke with a woman named Linda who, after checking the back of the store, wrote out a list of costumed characters that the store had, which included “Barney®.” Declaration of Nina Sherman (ct.doc. 59) at ¶¶ 6-8.
Similarly, Joseph Leichman called D & L Amusement & Entertainment, Inc. on June 5, 2006, and spoke with a woman identifying herself as “Darlene” who stated that her company had over 100 costumes for characters looking like Barney®, Baby Bop® and Bob the Builder®. Declaration of Joseph Leichman (ct.doc. 66) at ¶ 7. On June 9, 2006, the Mr. Leichman and co-investigator Nina Sherman visited D & L Entertainment, which was located in a flower shop called “Teresa's Floralart, Ltd.” Id. at ¶¶ 8-9; Declaration of Nina Sherman (ct.doc. 66) at ¶ 6. Inside the store, they saw costume character heads, including heads of Baby Bop®, Barney®, Clifford the Dog and Bob the Builder®. Id. They also obtained a completed order for “Purple Dinosaur, Green Female Dino, Construction Worker, Red Dog” for a party on July 8. Id. B (Leichman) at ¶¶ 8-9, Exhs. A and; id. (Sherman) at ¶ 8-9.
In addition, investigator Sarena Horowitz call a company called Party Scents on August 11, 2005 to inquire about costumes for children's characters and was referred to All in One Entertainment in Queens. Declaration of Sarena Horowitz 71 (ct.doc. 66) at ¶¶ 7-9. In a call to All in One, the investigator spoke with a man identifying himself as “John” who said he could provide costumed characters for Barney®, Clifford and Bob the Builder®. Id. at ¶¶ 8-9.
Prior to commencing this action, Matthew Kaplan, counsel for plaintiffs sent a “demand package” to John Albuja at All in One Entertainment, Inc. Declaration of Matthew Kaplan (ct.doc. 70) at ¶ 2. He subsequently received a letter from defendant Albuja for All in One stating that his business is a small operation and that it had destroyed all the character costumes. Id., Exh. 1. He commenced this action against the D & L defendants when settlement discussions did not reach conclusion. Id. at 9. Plaintiffs sent cease-and-desist letters to the defaulting defendants, all of whom either failed to respond or stopped responding after an initial correspondence. Am. Compl. ¶ 43. As a result, plaintiffs instituted the present action against defendants, alleging copyright and trademark infringement under the Copyright and Lanham Acts, and related state law claims. Plaintiffs seek preliminary and permanent injunctions as well as statutory damages.
Entry of a default judgment is a two-step process and requires first that the clerk of the court “enter the party's default” indicating that a party has “failed to plead or otherwise defend.” Fed. R. Civ. 55(a). After the clerk's entry of default, the opposing party generally requests that a court enter a default judgment against the defaulting parties. See Fed.R.Civ.P. 55(b)(2). A defendant's default is an admission of all well-pleaded...
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