Kaws v. The Individuals

• Decision Date: 31 January 2023
• Docket Number: 22 Civ. 6721 (AKH)
• Parties: KAWS, Plaintiff, v. THE INDIVIDUALS, CORPORATIONS, LIMITED LIABILITY COMPANIES, PARTNERSHIPS, AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE A HERETO, Defendants,
• Court: U.S. District Court — Southern District of New York

KAWS, Plaintiff,
v.
THE INDIVIDUALS, CORPORATIONS, LIMITED LIABILITY COMPANIES, PARTNERSHIPS, AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE A HERETO, Defendants,

No. 22 Civ. 6721 (AKH)

United States District Court, S.D. New York

January 31, 2023

ORDER GRANTING DEFAULT JUDGMENT

ALVIN K. HELLERSTEIN, U.S.D.J.

On August 8, 2022, Plaintiff KAWS_? Inc, brought this suit against the Defendants identified on Schedule A for copyright infringement under 17 U.S.C. § 101, et seq., trademark infringement and counterfeiting under 15 U.S.C. § 1114, false designation of origin under 15 U.S.C. § 1125(a), and unfair competition under New York Common Law.

On August 19, 2022,1 granted a temporary restraining order ("TRO"), which I subsequently extended for 14 days. (ECF Nos. 22, 25). Since the entry of the TRO, the Defendants have been given notice of this case and of the papers filed. All Defendants in this case-except for those voluntarily dismissed by Plaintiff and those in the process of settling with Plaintiff-have failed to appear, answer, or otherwise respond. The "Defaulting Defendants" are identified in the schedule attached to this order. The findings and conclusions of this Order are applicable to only these defaulting defendants. Plaintiffs motion for default judgment under Fed, R. Civ. P. 55 is granted against these defaulting defendants.

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BACKGROUND

The following facts are taken from the Complaint, and for purposes of deciding this motion, all of Plaintiff s allegations, except those related to damages, are accepted as true. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (citation omitted).

Brian Donnelly is an artist and designer who sells his works under his pseudonym, KAWS. (ECF No. 1 at ¶25). Much of Mr, Donnelly's art involves the repeated use of a cast of figurative characters and motifs that appear in a variety of settings and poses. Plaintiff is a New York domestic business corporation with its principal place of business in Brooklyn, New York.

Defendants are individuals and business entities who do business as merchants on online e-commerce platforms. Defendants reside mainly in the People's Republic of China or other foreign jurisdictions. Id. at ¶23-24.

Plaintiff is the registered owner of KAWS copyrights and trademarks. The KAWS copyrights are covered by U.S. Copyright Office Registration Nos. VA 2-180-272 and VA 2-182-652 (the ''KAWS Copyrights"). The KAWS trademarks are covered by U.S. Trademark Registration Nos. 6,046,763, 6,047,656, 6,102,259, 6,102,260, and 6,116,823 (the "KAWS Trademarks"). (ECF No. 1 at ¶1). The registrations are valid, subsisting, and in full force and effect. Id. at ¶2.

Plaintiff has not licensed or authorized Defendants to use the KAWS Copyrights or the KAWS Trademarks, and none of the Defendants are authorized retailers of genuine KAWS Products, Id. at ¶ 86. Despite this, Defendants knowingly trade upon Plaintiffs reputation and goodwill by selling and/or offering for sale products infringing on Plaintiffs KAWS Copyrights and KAWS Trademarks. Id. at ¶ 87. Defendants each have infringed on their interactive commercial Internet websites operating under their Domain Names and Online

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Marketplace Accounts listed in Schedule A to the Complaint (collectively, the "Defendant Internet Stores").

FINDINGS AND CONCLUSIONS AS TO SERVICE OF PROCESS

On August 19, 2022, as part of my order granting a temporary restraining order ("TRO"), (ECF No. 22) and, on August 30, 2022, as part of an extension order and pursuant to Fed R. Civ. P. 4(f)(3), I authorized Plaintiff to provide notice, and perfect service of the complaint and motion papers, on Defendants by electronic means. These means included using Defendants' email addresses on their websites or on the websites of third-parties maintaining platforms for Defendants, including Alibaba, AliExpress, Amazon, DHgate, eBay, etsy, RedBubble, Walmart, and Wish, and publication on a website (http://kaws-cases.com/case-22-cv-06721 .html) to which the Defendants were provided access. I find that service complying with my order was affected on each Defendant. See Declaration of Nathan Monroe-Yavneh (hereinafter "Monroe-Yavneh Decl.") ¶¶ 7-12. On October 14, 2022, the Clerk of the Court filed a Certificate of Default. (ECF No. 45), Plaintiff now moves for default judgment against all Defendants except those that have been voluntarily dismissed or that are engaged in settlement discussions. Plaintiff seeks an award of statutory damages for willful trademark infringement and/or copyright infringement against each of the Defaulting Defendants and a permanent injunction based on the unrefuted allegations in the Complaint and the evidentiary record which supported the issuance of the TRO.

DISCUSSION

I. Legal Standard

Federal Rule of Civil Procedure 55 governs judgments against a party that has failed to plead or otherwise defend itself in an action. Priestley v. Headminder, Inc., 647 F.3d

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497, 504-05 (2d Cir. 2011); Pac. M. Int'l Corp, v. Raman Int'l Gems, Ltd., 888 F.Supp.2d 385, 392 (S.D.N.Y. 2012). Rule 55(a) requires the Clerk of the Court, upon notification from the moving party, to note the default of the party failing to defend the suit. Priestley, 647 F.3d at 555 (citing Fed.R.Civ.P. 55). Once the Clerk issues a certificate of default, the moving party may apply for entry of default judgment, pursuant to Rule 55(b), Pac. M. Int'l, 888 F.Supp. 2d at 392. "When entry of a default judgment is sought against a party who has failed to plead or otherwise defend, the district court has an affirmative duty to look into its jurisdiction both over the subject matter and the parties." Bracken v. MH...