Malletier v. APEX CREATIVE INTERN. CORP.
| Citation | 687 F. Supp.2d 347 |
| Decision Date | 05 January 2010 |
| Docket Number | No. 04 Civ. 4200 (DAB).,04 Civ. 4200 (DAB). |
| Parties | Louis Vuitton MALLETIER, Plaintiff, v. APEX CREATIVE INTERNATIONAL CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Theodore Conrad Max, Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., New York, NY, for Plaintiff.
ADOPTION OF REPORT AND RECOMMENDATION
This matter is before the Court upon the August 17, 2009 Report and Recommendation of United States Magistrate Judge Henry Pitman. Pursuant to 28 U.S.C. § 636(b)(1)(C), "within ten days, after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations." 28 U.S.C. § 636(b)(1)(C); see also F.R.C.P. Rule 72(b) (). To date, no objections to said Report and Recommendation have been filed.
Having reviewed the Report and Recommendation and finding no clear error on the face of the record, see 28 U.S.C. § 636(b)(1)(B), it is hereby
ORDERED AND ADJUDGED as follows:
1. The Report and Recommendation of United States Magistrate Judge Henry Pitman dated August 17, 2009 be and the same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in its entirety;
2. Pursuant to Magistrate Judge Pitman's recommendation, damages are assessed against defaulting Defendants in the amount of $72,000.00, plus $22,234.00 in attorney's fees and $8,308.90 in costs for a total award of $102,542.90 in favor of the Plaintiff;
3. The Clerk of the Court is directed to close the docket in the above-captioned case.
SO ORDERED.
REPORT AND RECOMMENDATION
Plaintiff, Luis Vuitton Malletier ("LVM"), commenced this action for counterfeiting, alleging claims for unfair competition, trade dress and trademark infringement in violation of the Lanham Act, 15 U.S.C. §§ 1114, 1125(a),(c), on June 4, 2004. Defendants, Artex Creative International and ten John Does, did not timely answer or move with respect to the complaint and on June 6, 2005, the Honorable Richard Owen, United States District Judge, entered a default judgment and referred this matter to me to conduct an inquest concerning LVM's damages.
Pursuant to the Order of Reference, I issued a Scheduling Order on July 11, 2005 directing LVM to serve and file proposed findings of fact and conclusions of law by August 19, 2005 and directing defendants to submit responsive materials by September 19, 2005. My July 11, 2005 Scheduling Order further provided:
Defendant Artex Creative International Corporation shall submit its response to plaintiffs submissions, if any, no later than September 19, 2005. IF DEFENDANT ARTEX CREATIVE INTERNATIONAL CORPORATION (1) FAILS TO RESPOND TO PLAITIFF'S SUBMISSIONS, OR (2) FAILS TO CONTACT MY CHAMBERS BY SEPTEMBER 19, 2005 AND RQUEST AN IN-COURT HEARING, IT IS MY INTENTION TO ISSUE A REPORT AND RECOMMENDATION CONCERNING DAMAGES ON THE BASIS OF PLAINTIFF'S WRITTEN SUBMISSIONS ALONE WITHOUT AN IN-COURT HEARING. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.1997); Fustok v. Conti-Commodity Services Inc., 873 F.2d 38, 40 (2d Cir.1989) ()
(Docket Item 7) (emphasis in original).
LVM subsequently requested two extensions of the deadline to file it's proposed findings of fact and Conclusions of Law in order to conduct discovery of defendants' profits. I granted both extensions, and LVM submitted its Proposed Findings of Fact and Conclusions of Law in support of its application for damages on March 23, 2006.
Copies of my July 11, 2005 Scheduling Order and my two Orders granting LVM's extensions, were sent to the defendants at the address at which they was served. Despite being served with a copy of these Orders, the motion for default judgment and the complaint in this action, defendants have not made any written submission to me, nor have the defendants contacted the Court in any way.
Accordingly, on the basis of LVM's written submissions alone, I recommend that your Honor adopt the following findings of fact and conclusions of law.
1. Plaintiff, LVM, is a corporation organized and existing under the laws of France, having its principal place of business at 2 Rue du Pont Neuf 75001, Paris, France (Compl. ¶ 81; Plaintiffs Proposed Findings of Fact and Conclusions of Law, dated March 22, 2006 ("Plf.'s Proposed Findings") ¶ 1). LVM is engaged in the business of importing and selling designer handbags and other luxury items within the United States.
2. Defendant, Artex Creative International Corp. ("Artex"), is a California corporation having its principal place of business at 21720 South Wilmington Ave. # 304, Long Beach, California, 90810 (Compl. ¶ 10; Plf.'s Proposed Findings ¶ 2). Artex imports a variety of products, including handbags, which it sells on its website www.artexusa.com. Artex also frequently acts as a broker, arranging for American companies or consumers to purchase cheap goods from manufacturers located in China (Deposition of Roger Himmel, dated Nov. 15, 2005, ("Himmel Depo.") at 10, 18, attached as Ex. E to the Affidavit of Theodore C. Max, Esq. ("Max Decl."), dated March 22, 2006).
3. LVM is a famous design firm that owns the trademarks for a series of designs featured on high end luggage, handbags, jewelry and accessories that it sells under the Louis Vuitton name (Compl. ¶ 15). LVM's trademarks include the "Toile Monogram", which features the entwined LV initials with three symbols—a curved diamond with a four point star inset, its negative (i.e. the star inset) and a circle with a four-leaf flower . These designs are the subject of the following trademark registrations:
Registration/ International
Mark Serial No. Class
0,297,594 18
TOILE MONOGRAM 1,770,131 25
(on a variety 2,399,161 25
of products) 1,643,625 18
1,653,663 18
MISCELLANEOUS DESIGNS
Circle with a 2,181,753 14,18,25
Four-Leafed Flower
Diamond with 2,773,107 14,18,25
Star/Flower Inset
Inset-Star/Flower Pattern 2,177,828 14,18,25
4. In 2002, designer Marc Jacobs and Japanese artist Takashi Murakami introduced several new designs incorporating LVM's signature Toile Monogram trademarks. The new designs were featured in the following collections: (1) "Monogram Multicolore" offering the Toile monogram in thirty three different colors; (2) the "Eye Love Monogram", featuring a colorful Louis Vuitton toile monogram with the addition of a Murakami eye symbol, (3) the "Monogram Cherry Blossom", integrating several colorful cherry blossoms with the Toile Monogram; (4) "the Murakami Characters", a collection of Murakami Characters superimposed upon the toile monogram (collectively the "Murakami Trademarks") (see the Louis Vuitton Monogram Murakami Trademarks, attached as Ex. B to the Compl.).
5. These four collections were launched on October 7.2002 at the Louis Vuitton Spring 2003 Fashion Show in Paris. The collections were extremely successful; as of June 2004, in excess of seventy thousand Louis Vuitton Toile Monogram Murakami Handbags and accessories valued at over $40 million dollars had been sold in the United States alone (Compl. at ¶ 35). These collections received extensive praise and publicity from the leading fashion magazines and news media (Compl at ¶¶ 24-33, 40-45).
6. LVM devoted nearly four million dollars to market, promote and advertise handbags featuring the Murakami trademarks (Compl. at ¶ 34).
7. Based on the extensive sales of the Murakami collections and their wide popularity, the Murakami Trademarks have developed secondary meaning and significance in the minds of the purchasing public, and the products utilizing and/or bearing such marks and names are immediately identified by the purchasing public with LVM (Compl. at ¶¶ 27-46). As a result, the Murakami Trademarks and the goodwill associated therewith is of inestimable value to LVM.
8. Defendant, Artex, sells a collection of handbags marketed as the Country Club Collection through its website. These handbags bear designs that are virtually identical2 to Louis Vuitton's Monogram Multicolore Trademarks. Many of the infringing handbags incorporate multicolored images of a curved diamond with a four point star inset, a star which bears distinct similarities to LVM's star inset and a circle with a four-leaf flower (see Images of Defendants' Country Club Collection, attached as Ex. K, L to the Compl.).
9. Artex's counterfeit handbags are sold to purchasers in New York (Compl. ¶ 54; see also Invoice for Order Placed by Louis Vuitton's Representative in New York, attached as Ex. C to the Max Decl.).
10. These counterfeit handbags are likely to cause confusion in the minds of consumers, dilute the Louis Vuitton trademark's ability to identify LVM as the source of goods, and create the false impression that there is some association between LVM and the counterfeit handbags (Compl. ¶¶ 56, 58).
11. The counterfeit handbags were not manufactured, distributed and/or sold by LVM or with LVM's authorization, consent, license or approval and are of an inferior quality to LVM's genuine products (Compl. ¶ 53).
12....
To continue reading
Request your trial
-
Div. 1181 Amalgamated Transit Union—N.Y. Emps. Pension Fund v. D & A Bus Co.
...[and the fact that] an attorney of lesser experience could have performed some or all of this work"); Malletier v. Artex Creative Int'l Corp. , 687 F.Supp.2d 347, 363 (S.D.N.Y. 2010) ("The [56.5] hours expended on this relatively straightforward trademark action has convinced [the court] th......
-
Louis Vuitton Malletier S.A. v. LY USA, Inc.
...Jewish Congregations of Am. v. Am. Food & Beverage Inc., 704 F.Supp.2d 288, 293 (S.D.N.Y.2010); Louis Vuitton Malletier v. Artex Creative Int'l Corp., 687 F.Supp.2d 347, 358–59 (S.D.N.Y.2010); Louis Vuitton Malletier v. Carducci Leather Fashions, Inc., 648 F.Supp.2d 501, 505–06 (S.D.N.Y.200......
-
Guidance Endodontics LLC v. Dentsply Int'l Inc. A Del. Bus. Corp.
...679 F.Supp.2d 70, 82 (D.D.C.2010) (“Count II is based on the common-law tort of unfair competition....”); Malletier v. Apex Creative Int'l Corp., 687 F.Supp.2d 347, 354 (S.D.N.Y.2010) (“Artex's marketing and sale of the handbags bearing these marks constitutes ... state common law torts inc......
-
Tambriz v. Taste & Sabor LLC
...fee and $600 in service of process fees for default judgment in FLSA and NYLL case); Malletier v. Artex Creative International Corp. , 687 F. Supp. 2d 347, 365 (S.D.N.Y. 2010) (costs such as filing fees, shipping costs, and research fees are "typically awarded when a defendant defaults") (c......