You're viewing Docket Item 25 from the case Otter Products LLC v. Angel Luis Berrios Jr et al. View the full docket and case details.

Download this document:




Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 1 of 31 Page ID #:161

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CV 13-4384 RSWL (AGRx)
ORDER Re: Plaintiff’s
Motion for Default
Judgment Against
Defendant Angel Luis
Berrios, Jr. [22]

Otter Products, LLC, a
Colorado Limited Liability
Company,

Plaintiff,

v.

Angel Luis Berrios, Jr., an
Individual,

Defendants.

)))))))))))))))))

1

On August 23, 2013, Plaintiff Otter Products, LLC

(“Plaintiff”) filed the present Motion for Default
Judgment [22]. The Court, having reviewed all papers
submitted pertaining to this Motion and having
considered all arguments presented to the Court, NOW
FINDS AND RULES AS FOLLOWS:

Plaintiff’s Motion for Default Judgment is hereby

GRANTED.
//

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 2 of 31 Page ID #:162

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

I. Background

Plaintiff is a leading retailer and distributor of

high quality protective cases, peripherals, and
accessories for portable electronic devices and
computers. Compl. ¶ 13. Plaintiff develops and
manufactures these cases for a wide range of devices
and products. Id. at ¶ 14. In particular, Plaintiff
claims that its OTTERBOX® branded products have
received extensive media coverage and achieved an
extraordinary reputation. Id. at ¶ 16. Moreover,
Plaintiff has received local and national accolades for
its products, such as being named “The Best Mobile Case
Brand” in 2011 by About.com Reader’s Choice. Id. at ¶
17.

Plaintiff is the exclusive owner of six trademarks
for its OTTERBOX® and DEFENDER SERIES® branded products
and product packaging (the “Marks”). Id. at ¶¶ 19-21;
see Garibyan Decl. ¶ 2, Exs. A-F. Plaintiff claims
that it has spent substantial time, money, and effort
in developing consumer recognition and awareness of its
marks and has spent an enormous amount of money on
print and internet advertising to inform customers of
the benefits of its products. Compl. ¶ 18.

Plaintiff claims that at some point, without the

Plaintiff’s consent, Defendant Angel Luis Berrios, Jr.
(“Defendant”) began offering for sale and selling goods
that were neither made by or consented to by Plaintiff
using reproductions, counterfeits, copies, and

2

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 3 of 31 Page ID #:163

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

colorable imitations of one or more of Plaintiff’s
marks. Id. at ¶ 24. Plaintiff claims that Defendant
maintains and operates a storefront on eBay under the
username “wirelessexpressions.” Id. at ¶ 25. Through
this storefront, Defendant regularly advertised and
sold products bearing the Marks. Garibyan Decl. ¶ 4,
Ex. G.

On April 10, 2012, in its ongoing investigation of

counterfeit sales of OTTERBOX® branded products,
Plaintiff purchased an “IPHONE 4 4S 4G OTTERBOX
DEFENDER CASE COVER + HOLSTER BELT CLIP WHITE NEW IN
BOX” (Item #220998879310) from Defendant for $19.95,
paid through Plaintiff’s PayPal account. Compl. ¶ 27,
Ex. G. According to Plaintiff, the package arrived
bearing a shipping label identifying Defendant’s home
address, 13536 Lakes Way, Orlando, Florida 32828.
Garibyan Decl. ¶¶ 3, 7, Ex. O. The product purchased
from Defendant clearly displayed marks identical to the
Marks. Garibyan Decl. ¶ 8, Ex. P. Plaintiff confirmed
that the item Defendant sold to Plaintiff was a
counterfeit after inspecting the item using security
measures. Compl. ¶ 28; Garibyan Decl. ¶ 9.

On May 28, 2012, Plaintiff sent Defendant a cease
and desist letter along with a draft complaint to the
e-mail address identified on the PayPal purchase
receipt; Defendant failed to respond. Garibyan Decl. ¶
10, Ex. Q. On May 30, 2012, Plaintiff sent a second
cease and desist letter to Defendant at his home

3

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 4 of 31 Page ID #:164

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

address via certified mail; Defendant received and
signed for the correspondence. Garibyan Decl. ¶ 11,
Ex. R. On May 7, 2013, U.S. Customs and Border
Protection seized a shipment of 300 counterfeit
OTTERBOX® branded products en route from China to
Defendant’s home address for Defendant’s resale.
Garibyan Decl. ¶ 13, Ex. S.

Plaintiff filed its Complaint against Defendant on

June 18, 2013, and Defendant was personally served,
with a copy of the Summons and Complaint on June 27,
2013, at his home address. Garibyan Decl. ¶ 14; Dkt.
#18. Defendant failed to respond to Plaintiff’s
Complaint. Garibyan Decl. ¶ 14.

Plaintiff requested entry of default against

Defendant on August 8, 2013, and the Clerk of the Court
entered default on Defendant on August 9, 2013.
Garibyan Decl. ¶ 15, Dkts. ##19-20. Plaintiff filed
the present Motion for Default Judgment against
Defendant on August 23, 2013 [22].
II. Discussion

As a matter of initial concern, the Court finds

that it has proper subject matter and personal
jurisdiction in this case. Pursuant to 28 U.S.C. §§
1331 and 1338, the Court has subject matter
jurisdiction because this Action was brought, in part,
under the Lanham Act. Personal jurisdiction arises
from Defendant’s commercial activities within
California.

4

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 5 of 31 Page ID #:165

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

A.

Procedural Requirements for Default Judgment
The Court finds that Plaintiff has met all local
procedural requirements for default judgment. First,
default was entered by the Clerk of the Court against
Defendant on August 8, 2013 [20]. Second, default was
entered as to the Complaint filed in this proceeding.
Third, Defendant is not an infant or an incompetent
person. Garibyan Decl. ¶ 16. Fourth, Defendant is not
in the military service of the United States of
America. Id. Fifth, Plaintiff has attached proof of
service to its Motion stating that notice of the Motion
has been served [22].

Thus, the Court finds that the procedural

requirements of Local Rule 55-1 (a-e) are met in this
case.
B.

Substantive Requirements for Default Judgment
For the reasons set forth below, the Court finds

that Plaintiff has met the substantive requirements for
a default judgment as set forth by Eitel v. McCool, 782
F.2d 1470, 1471-72 (9th Cir. 1986).

Possibility of Prejudice to Plaintiff

1.
The first factor in granting default judgment looks

at the possibility of prejudice to the plaintiff if
default judgment were not entered. See Eitel, 782 F.2d
at 1471-72. Here, this factor weighs in favor of
Plaintiff as Defendant has failed to appear. If
default is not entered, Plaintiff cannot be compensated
for its losses. Furthermore, without injunctive

5

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 6 of 31 Page ID #:166

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

relief, Plaintiff will continue to suffer harm from
Defendant’s violation of Plaintiff’s trademark rights.
Prejudice has been found in analogous situations. See
e.g. Sennheiser Elec. Corp. v. Eichler, No. CV 12-10809
MMM (PLAx), 2013 U.S. Dist. LEXIS 105319 at *8 (C.D.
Cal. July 19, 2013) (finding prejudice where plaintiff
alleged that defendants infringed on its trademark name
by selling counterfeit products bearing trademark name
through their online storefronts). As such, the Court
finds that this factor weighs in favor of granting
default judgment.

2.

Merits of Plaintiff’s Case and Sufficiency of
Plaintiff’s Complaint

The second and third factors concern the merits of

Plaintiff’s case and the sufficiency of Plaintiff’s
complaint. Eitel, 782 F.2d at 1471. Courts commonly
analyze these two factors together, as this Court does
as well. F.D.I.C. v. Quest, F.S., Inc., SACV
10-0710-DOC(RNBx), 2011 U.S. Dist. LEXIS 69210, at *6
(C.D. Cal. June 27, 2011).

Plaintiff has alleged five causes of action in its
Complaint against Defendant: (1) Trademark Infringement
under 15 U.S.C. § 1114; (2) False Designation of Origin
under 15 U.S.C. § 1125(a); (3) Trademark Dilution under
15 U.S.C. § 1125(c); (4) Unfair Competition under
California Business & Professions Code § 17200 et seq.;
(5) Declaratory Relief. Compl. ¶¶ 35-58.
//

6

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 7 of 31 Page ID #:167

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

a.

Plaintiff’s Trademark Infringement, False
Designation of Origin, and Unfair
Competition Claims

A claim for false designation of origin under 15

U.S.C. § 1125 requires proof of the same elements as a
claim for trademark infringement under 15 U.S.C. §
1114. Brookfield Commc’ns, Inc. v. West Coast Entm’t
Corp., 174 F.3d 1036, 1047 n.6 (9th Cir. 1999).
Additionally, actions pursuant to California Business &
Professions Code § 17200 are “substantially congruent”
to claims made under the Lanham Act. Cleary v. News
Corp., 30 F.3d 1255, 1263 (9th Cir. 1994). In other
words, the Court should analyze Plaintiff’s trademark
infringement, false designation of origin, and unfair
competition claims together.

To prove a claim of trademark infringement, a

plaintiff must show that: (1) it has a valid,
protectable trademark and (2) that Defendant’s use of
the mark is likely to cause confusion. Applied Info.
Scis. Corp. v. eBay, Inc., 511 F.3d 966, 970 (9th Cir.
2007).

“Registration of a mark ‘on the Principal Register

in the Patent and Trademark Office constitutes prima
facie evidence of the validity of the registered mark
and of [the registrant’s] exclusive right to use the
mark on the goods and services, specified in the
registration.’” Id. (quoting Brookfield, 174 F.3d at
1047). Because Plaintiff alleges that it owns federal

7

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 8 of 31 Page ID #:168

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

registration of the Marks in its Complaint (and because
Plaintiff attached the registrations to the Complaint),
Plaintiff has adequately shown the validity of the
Marks and its ownership of the Marks.

Courts typically apply the eight factors set out in

AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir.
1979) to determine whether a defendant’s use of a mark
or name creates a likelihood of confusion. See Rearden
LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1199 (9th
Cir. 2012); Lahoti v. Vericheck, Inc., 636 F.3d 501,
507 (9th Cir. 2011). Those factors are: (1) the
strength of the mark; (2) the proximity of the goods;
(3) the similarity of the marks; (4) evidence of actual
confusion; (5) marketing channels used; (6) type of
goods and the degree of care likely to be exercised by
the purchaser; (7) defendant’s intent in selecting its
mark; and (8) likelihood of expansion into other
markets. Sleekcraft, 599 F.2d at 348.
Strength of the Mark

i.

The first Sleekcraft factor looks at the strength
of the mark. “Trademark law offers greater protection
to marks that are ‘strong,’ i.e., distinctive.” E. &
J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280,
1291 (9th Cir. 1992). “Arbitrary and fanciful marks
have no intrinsic connection to the product with which
the mark is used; the former consists of words commonly
used in the English language, whereas the latter are
wholly made-up terms.” Brookfield, 174 F.3d at 1058

8

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 9 of 31 Page ID #:169

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

n.19 (citations omitted). Additionally, “[m]arks may
be strengthened by extensive advertising, length of
time in business, public recognition, and uniqueness.”
Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175,
1179 (9th Cir. 1988).

The Court finds that the Marks here are strong.

Other than being associated with the products at issue,
the word “OTTERBOX” and the pictographic marks stemming
therefrom do not connote anything of meaning.
Moreover, Plaintiff has been using the Marks in
commerce since 2007. Compl. ¶¶ 19-21, Exs. A-F.
Plaintiff’s products have achieved an extraordinary
reputation and have been recognized both locally and
nationally, winning many awards in the process. Id. at
¶¶ 16-17. Plaintiff has coupled this public
recognition with extensive advertising, investing
substantial time, money, and effort in developing
consumer recognition and awareness of its marks. Id.
at ¶ 18. The Court thus finds that the Marks are
strong, thereby weighing toward a finding of a
likelihood of confusion.

ii. Proximity or Relatedness of Goods

The second Sleekcraft factor looks to the proximity
or relatedness of the goods on which the mark is used.
“Where goods are related or complementary, the danger
of consumer confusion is heightened.” Gallo Cattle,
967 F.2d at 1291. Here, both Plaintiff’s and
Defendant’s products are form-fit protective cases for

9

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 10 of 31 Page ID #:170

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

cellular phones. Both Plaintiff’s and Defendant’s
products bear the Marks. Garibyan Decl. ¶ 8, Ex. P.
As both Plaintiff’s and Defendant’s products are
identical, the Court finds that this factor weighs
heavily in favor of a finding of likelihood of
confusion.

iii. Similarity of the Marks

The third Sleekcraft factor looks to the similarity
of the marks. “Three general principles help determine
whether marks are similar. First, ‘[s]imilarity is
best adjudged by appearance, sound, and meaning.’
Second, the ‘marks must be considered in their entirety
and as they appear in the marketplace.’ Third,
‘similarities are weighed more heavily than
differences.’” Fortune Dynamic, Inc. v. Victoria’s
Secret Stores Brand Mgmt., 618 F.3d 1025, 1032 (9th
Cir. 2010) (citations omitted).

The Court finds that the marks on Defendant’s goods

are highly similar to Plaintiff’s Marks. The
photographs Plaintiff submitted show that Defendant’s
goods use the Marks in an identical manner on
practically identical goods to Plaintiff’s products.
As such, the Court finds that the marks are similar and
that this factor weighs toward a finding that
Defendant’s use of the Marks is likely to cause
confusion.

iv. Evidence of Actual Confusion

The fourth Sleekcraft factor looks to evidence of

10

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 11 of 31 Page ID #:171

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

actual confusion. While “[e]vidence that use of the
two marks has already led to confusion is persuasive
proof that future confusion is likely . . . failure to
prove instances of actual confusion is not
dispositive.” Sleekcraft, 599 F.2d 352-53 (citing
Plough, Inc. v. Kreis Labs., 314 F.2d 635, 639-40 (9th
Cir. 1963); Drexel Enters., Inc. v. Hermitage Cabinet
Shop, Inc., 266 F. Supp. 532, 537 (N.D. Cal. 1967)).

Here, Plaintiff has presented evidence of
Defendant’s sale of at least 4,100 counterfeit
products. Garibyan Decl. ¶ 5, Exs. H-M. That so many
consumers purchased Defendant’s counterfeit products
evidences actual consumer confusion. As such, the
Court finds that this factor weighs in Plaintiff’s
favor.

v.

Marketing Channel Convergence

The fifth Sleekcraft factor looks to whether the

marketing channels used by Plaintiff and Defendant
converge or are identical. Plaintiff alleges that
Defendant operates a storefront on eBay.com, an online
marketplace, through which Defendant advertised,
marketed, distributed, and sold products bearing the
Marks. Compl. ¶ 25; Garibyan Decl. ¶ 4, Ex. G.
Plaintiff also alleges that it sells its products at
third party retailers and online through its website.
Garibyan Decl. ¶ 12. Plaintiff thus contends that it
and Defendant’s marketing channels overlap because they
both sell products over the Internet. Mot. 13:3-8.

11

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 12 of 31 Page ID #:172

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

While this may be true, “[g]iven the broad use of

the Internet today . . . this factor merits little
weight.” Playboy Enters. v. Netscape Commc’ns Corp.,
354 F.3d 1020, 1028 (9th Cir. 2004).

As such, this factor neither weighs in favor nor

against a finding of likelihood of confusion.

vi. Type of Good

The sixth Sleekcraft factor examines whether the

good is one in which buyers are likely to exercise
greater care in their purchase. “When goods are
expensive, it is assumed that buyers will exercise
greater care in their purchases.” Gallo Cattle, 967
F.2d at 1293. Conversely, “when dealing with
inexpensive products, customers are likely to exercise
less care, thus making confusion more likely.”
Brookfield, 174 F.3d at 1060.

Here, Plaintiff alleges that the goods in question

are fairly inexpensive. For example, Plaintiff
purchased one of Defendant’s items for $19.95.
Garibyan Decl. ¶ 6. Because the goods at issue are
relatively inexpensive, this factor weighs in favor of
finding a likelihood of confusion.

vii. Defendant’s Intent

The seventh Sleekcraft factor looks at the

defendant’s intent in selecting the mark. “When the
alleged infringer knowingly adopts a mark similar to
another’s, [the court] must presume that the public
will be deceived.” M2 Software, Inc. v. Madacy Entm’t,

12

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 13 of 31 Page ID #:173

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

421 F.3d 1073, 1085 (9th Cir. 2005) (citing Sleekcraft,
599 F.2d at 354).

Plaintiff has alleged that Defendant intentionally
chose Plaintiff’s Marks to confuse consumers and aid in
the promotion and sales of its unauthorized and
counterfeit products. Compl. ¶ 29. Defendant
continued to do this even after Plaintiff attempted to
contact Defendant prior to the instigation of the
instant lawsuit. Garibyan Decl. ¶¶ 10-11, Exs. Q-R.
Defendant continued to engage in the sale of the
infringing goods even after notice of the lawsuit. Id.
at ¶ 13-14, Ex. S.

Furthermore, the failure of a party to defend

itself against allegations of trademark counterfeiting
is indicative of willful trademark infringement. See
Philip Morris U.S.A. Inc. v. Castworld Products, Inc.,
219 F.R.D. 494, 500 (C.D. Cal. 2003) (finding that a
party’s failure to comply with the judicial process or
to participate in litigation indicates willful use of a
counterfeit mark).

Thus, the Court finds that Defendant knowingly

adopted marks similar to Plaintiff’s Marks. As such,
the Court finds that this factor weighs in favor of
finding a likelihood of confusion.

viii. Expansion of Product Lines

The eighth Sleekcraft factor concerns whether

Defendant will expand the product line to include other
products. Plaintiff has not alleged any facts or

13

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 14 of 31 Page ID #:174

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

raised any arguments regarding this factor. As such,
the Court finds that this factor is neutral.

ix. Conclusion

Because all of the Sleekcraft factors either weigh
in favor of a finding of a likelihood of confusion or
are neutral, the Court finds that Defendant’s use of
the marks was likely to cause confusion.

The Court thus finds that Plaintiff has adequately

alleged both elements necessary for a trademark
infringement claim.

b.

Plaintiff’s Trademark Dilution Claim

“In order to prove a violation of the Federal
Trademark Dilution Act, a plaintiff must show
that (1) the mark is famous; (2) the defendant
is making a commercial use of the mark in
commerce; (3) the defendant’s use began after
the mark became famous; and (4) the defendant's
use of the mark dilutes the quality of the mark
by diminishing the capacity of the mark to
identify and distinguish goods and services.”
Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316,

1316, 3124 (9th Cir. 1998).

i.

Famousness of Plaintiff’s Marks

The first element of a trademark dilution claim
requires the plaintiff to establish that the mark is
famous. In determining whether a mark is famous,
courts may consider several factors, including: (1) the
degree of inherent or acquired distinctiveness; (2) the

14

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 15 of 31 Page ID #:175

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

duration and extent of use; (3) the duration and extent
of advertising and publicity; (4) the geographical
extent of the market; (5) the channels of trade; (6)
the degree of recognition in the trading areas and
channels of trade; (7) the nature and extent of use of
the same or similar marks by third parties; and (8)
whether the mark is registered. Nissan Motor Co. v.
Nissan Computer Corp., 378 F.3d 1002, 1013 (9th Cir.
2004) (citing 15 U.S.C. § 1125(c)(1)).

The Court finds that the Marks are famous under 15

U.S.C. § 1125(c)(1). Plaintiff’s Mark is highly
distinct; as discussed above, Plaintiff’s OTTERBOX®
Mark does not connote anything of meaning other than
Plaintiff’s products. Furthermore, Plaintiff has been
using these Marks extensively since 2007. Compl. ¶¶
19-21, Exs. A-F. Plaintiff has spent substantial time,
money, and effort in advertising and publicity. Id. at
¶ 18. Additionally, Plaintiff’s Marks and products are
highly recognized both locally and nationally,
indicating a national market. Id. at ¶ 17. Finally,
the Marks are registered. Id. at ¶¶ 19-21, Exs. A-F.
As nearly all of the statutory factors weigh in
Plaintiff’s favor, the Court finds that the Marks are
famous.

ii. Defendant’s Commercial Use of

Plaintiff’s Famous Marks

The Court finds that Defendant has made a

commercial use of Plaintiff’s Marks.

15

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 16 of 31 Page ID #:176

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

First, Defendant operates and maintains an eBay

storefront under the name “wirelessexpressions,”
through which he regularly and systematically
advertised, marketed, distributed, and sold products
bearing unauthorized Plaintiff’s Marks. Compl. ¶¶ 24-
34; Garbiyan Decl. ¶ 4-13, Ex. G-S. In other words,
Defendant routinely uses Plaintiff’s Marks to market
and sell its products.

Second, on April 10, 2012, Plaintiff purchased an
“IPHONE 4 4S 4G OTTERBOX DEFENDER CASE COVER + HOLSTER
BELT CLIP WHITE NEW IN BOX” (Item #220998879310) from
Defendant for $19.95, paid through Plaintiff’s PayPal
account. Compl. ¶ 27, Ex. G. The product purchased
from Defendant was inspected for authenticity and
determined to be a counterfeit. Compl. ¶ 28; Garibyan
Decl. ¶¶ 8-9, Ex. P.

Given Defendant’s extensive marketing and sales of
his counterfeit products using Plaintiff’s Marks, the
Court finds that Defendant has made commercial use of
Plaintiff’s Marks.

iii. Defendant’s Use Began After
Plaintiff’s Marks Were Famous

Plaintiff has been using the Marks since as early
as 2007. Compl. ¶¶ 19-21, Exs. A-F; Garibyan Decl. ¶
2, Exs. A-F. Defendant has, according to Plaintiff’s
monitoring software, sold counterfeit “OTTERBOX”
products from August 2011 to March 2013 through his
“wirelessexpressions” eBay storefront. Garibyan Decl.

16

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 17 of 31 Page ID #:177

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

¶ 5, Ex. H-M. Accordingly, the Court finds that
Defendant used the Marks after they became famous.

iv. Defendant’s Use Tarnishes the Quality

of Plaintiff’s Marks

The final element for a trademark dilution claim is

that Defendant’s use of the Marks has tarnished the
quality of Plaintiff’s Marks. “Tarnishment occurs
‘when a famous mark is improperly associated with an
inferior or offensive product or service.’” Playboy
Enters., 354 F.3d at 1033 (quoting Panavision, 141 F.3d
at 1326 n.7).

Defendant has associated Plaintiff’s Marks with

counterfeit versions of Plaintiff’s products by selling
counterfeits bearing the Marks. Compl. ¶¶ 22-34, 45-
50; Garibyan Decl. ¶¶ 4-14, Exs. G-S. As such, the
Court finds that Defendant tarnished Plaintiff’s Marks.

c. Conclusion

The Court thus finds that Plaintiff has adequately
alleged the elements necessary for a trademark dilution
claim. Because Plaintiff has adequately pled and
established all the elements and factors necessary for
its trademark infringement and trademark dilution
claims, the Court finds that the second and third Eitel
factors weigh in favor of granting default judgment.

Sum of Money At Stake

3.
The fourth factor in granting default judgment

looks at the amount of money at stake in the action.
See Eitel, 782 F.2d at 1471-72.

17

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 18 of 31 Page ID #:178

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Lanham Act, 15 U.S.C. § 1117(c), authorizes

statutory damages of up to “$2,000,000 per counterfeit
mark per type of good or services sold, offered for
sale, or distributed” where “the use of the counterfeit
mark was willful”. 15 U.S.C. § 1117(c)(2). A
“counterfeit mark” is “a counterfeit of a mark that is
registered on the principal register in the United
States Patent and Trademark Office for such goods or
services.” 15 U.S.C. § 1116(d)(1)(B)(i).

Plaintiff seeks statutory damages in the amount of

$4,000,000 for willful trademark infringement and
trademark dilution pursuant to 15 U.S.C. § 1117(c)(1)
for Defendant’s intentional infringement of Plaintiff’s
Marks. Mot. 20:15-18.

Plaintiff has alleged that Defendant has sold
thousands of counterfeit versions of Plaintiff’s
products bearing the Marks for hundreds of thousands of
dollars. Garibyan Decl. ¶ 5, Exs. H-M. Given that
Plaintiff’s Marks were registered for the duration of
Defendant’s activities, these facts indicate that
Defendant has knowingly, willfully, and intentionally
used counterfeit marks. As such, pursuant to 15 U.S.C.
§ 1117(c)(1), this Court finds that Plaintiff is
authorized to seek statutory damages of up to
$12,000,000.

The significant amount of money at stake here

outweighs the egregiousness of Defendant’s conduct,
weighing against awarding default judgment.

18

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 19 of 31 Page ID #:179

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Possibility of Dispute Over Material Facts

4.
The fifth factor in granting default judgment looks
at whether there is a possibility of dispute concerning
material facts. Eitel, 782 F.2d at 1471-72.

There is nothing to suggest the possibility of a

dispute over material facts here because Defendant has
not filed a responsive pleading to the Complaint.
Furthermore, where a plaintiff has filed a well-pled
complaint, the possibility of a dispute concerning
material facts is remote. Landstar Ranger, Inc. v.
Parth Enters., Inc., 725 F. Supp. 2d 916, 921-22 (C.D.
Cal. 2010). Thus, this factor weighs toward granting
default judgment.

Whether Default Due to Excusable Neglect

5.
The sixth factor in granting default judgment looks
at whether default was due to some excusable neglect.
Eitel, 782 F.2d at 1472.

Here, there is no evidence that default was due to

Defendant’s excusable neglect. Defendant was
personally served with a copy of the Summons and
Complaint on June 27, 2013 [18]. Garibyan Decl. ¶ 14.
Defendant did not file an answer. Furthermore,
Plaintiff filed this Motion for Default Judgment on
August 23, 2013 and served notice of the Motion that
same day [23]. Defendant has not appeared or filed a
responsive pleading. As such, the Court finds that
this factor weighs toward granting default judgment.
//

19

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 20 of 31 Page ID #:180

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Strong Policy Favoring Decision on Merits

6.
The seventh and last factor in granting default
judgment considers the strong policy underlying the
Federal Rules of Civil Procedure favoring decisions on
the merits. Eitel, 782 F.2d at 1472. However, the
preference of deciding a case upon its merits is not
alone dispositive, given the existence of Federal Rule
of Civil Procedure 55(b). PepsiCo, Inc. v. California
Security Cans., 238 F. Supp. 2d 1172, 1177 (C.D. Cal.
2002). In addition, a defendant’s failure to answer a
plaintiff’s complaint “makes a decision on the merits
impractical, if not impossible.” Id.; Elektra Entm’t
Group Inc. v. Crawford, 226 F.R.D. 388, 393 (C.D. Cal.
2005). Here, Plaintiff’s federal trademark claims are
unopposed and Defendant has failed to appear in this
Action. Therefore, this factor favors granting default
judgment.

Accordingly, because Plaintiff meets both the
substantive and procedural requirements, the Court
GRANTS Plaintiff’s Application for Default Judgment.
C.

Terms of the Judgment
After determining that entry of default judgment is

warranted, the Court must next determine the terms of
the judgment.

Statutory Damages

1.
Plaintiff seeks $4,000,000 in statutory damages for

Defendant’s federal trademark violations as
compensation for Plaintiff’s damages, as a punishment

20

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 21 of 31 Page ID #:181

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

for Defendant’s willful conduct, and as a deterrent to
future infringement by Defendant and other
counterfeiters. Mot. 21:26-28.

“Several courts have found statutory damages are

appropriate in default judgment cases because the
information needed to prove actual damages is within
the infringers’ control and is not disclosed.”
Microsoft Corp. v. Nop, 549 F. Supp. 2d 1233, 1238
(E.D. Cal 2008). Pursuant to the Lanham Act, a
plaintiff may recover statutory damages “not less than
$1,000 or more than $200,000 per counterfeit mark per
type of goods or services sold, offered for sale, or
distributed, as the court considers just.” 15 U.S.C. §
1117(c)(1). Additionally, where a defendant’s conduct
is willful, a court may grant enhanced statutory
damages for “not more than $2,000,000 per counterfeit
mark per type of goods or services sold, offered for
sale, or distributed, as the court considers just.” 15
U.S.C. § 1117(c)(2). Willfulness requires a connection
between the defendant’s awareness of its competitors
and the defendant’s actions at those competitors'
expense. See Louis Vuitton Malletier, S.A. v. Akanoc
Solutions, Inc., 658 F.3d 936, 944 (9th Cir. 2011);
Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400,
1406 (9th Cir. 1993). However, willfulness can be
inferred from a defendant’s failure to defend.
Castworld Products, 219 F.R.D. at 501. Moreover, in
determining whether the amount of statutory damages

21

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 22 of 31 Page ID #:182

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

sought is reasonable, courts will look to see if the
amount is calculated to serve the purposes of awarding
statutory damages, such as compensating lost profits,
punishing willful infringing conduct, and deterring
infringing activity. See id. at 501-02.

Courts tasked with determining statutory damages

awards under the Lanham Act often turn to the analysis
developed for a similar provision within the Copyright
Act. Phillip Morris USA Inc. v. Shalabi, 352 F. Supp.
2d 1067, 1076 (C.D. Cal. 2004); Sara Lee Corp. v. Bags
of New York, Inc., 36 F. Supp. 2d 161, 166-167
(S.D.N.Y. 1999). Based on the factors considered for
the award of statutory damages under the Copyright Act,
some courts applying the Lanham Act have looked to
estimates of actual damages when making statutory
damages awards, requiring a “plausible relationship”
between plaintiff’s actual damages and the requested
statutory damages award. See Adobe Sys v. Tilley, No.
C-09-01085 PJH (JCS), 2009 U.S. Dist. LEXIS 123438, at
*12 (N.D. Cal. Dec. 23, 2009); see also Sara Lee, 352
F. Supp. 2d at 170.

Defendant’s unwillingness to participate in the

legal process in spite of his knowledge of the suit, as
well as his significant infringing activity indicates
that his infringement was willful. Plaintiff is thus
entitled to up to $12,000,000 in statutory damages
pursuant to 15 U.S.C. § 1117(c) given that Defendant
has willfully infringed on Plaintiff’s six Marks.

22

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 23 of 31 Page ID #:183

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

However, the Court hereby finds that Plaintiff’s

requested $4,000,000 is unreasonable as it is not
“plausibly related” to Plaintiff’s actual damages.
Plaintiff provides evidence that it has been damaged in
the amount of its lost profits, though the total amount
cannot be ascertained. See Garibyan Decl. ¶ 5, Exs. H-
M. In particular, Plaintiff provides tracking data for
Defendant’s “wirelessexpressions” eBay storefront
showing that from August 2011 through March 2013,
Defendant sold no less than 4,101 counterfeit OTTERBOX®
products with gross receipts of no less than
$88,812.00. Id. Defendant’s infringing activity,
then, is extensive and pervasive, continuing even after
notice of this Action. See id. at ¶ 6, 10-11.
However, an award of $4,000,000 here would go beyond
deterring future infringement and would serve as a
windfall for Plaintiff. See Adobe Systems, Inc. v.
Tilley, No. C 09-1085 PJH, 2010 WL 309249 at *5-6 (N.D.
Cal. Jan. 19, 2010) (“while the plaintiff in a
trademark or copyright infringement case is entitled to
damages that will serve as a deterrent, it is not
entitled a windfall.”).

The Court has significant discretion to determine
the amount of damages to be awarded. See Rolex Watch,
U.S.A., Inc. v. Michel Co., 179 F.3d 704, 712 (9th Cir.
1999); Moroccanoil, Inc. v. Allstate Beauty Prods.,
Inc., 847 F. Supp. 2d 1197, 1202 (C.D. Cal. 2012).
Courts have been predictably varied in their damages

23

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 24 of 31 Page ID #:184

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

awards for similar default judgments involving
trademark counterfeiting. See E.I. Du Pont de Nemours
and Co. v. Drabek, No. CV 12-10574 DDP AJWX, 2013 WL
4033630, at *7 (C.D. Cal. May 3, 2013) (awarding
$25,000 per product bearing plaintiff’s mark for a
total of $525,000 where plaintiff failed to present
evidence regarding the extent of sales and evidence
that defendant sold infringing products to a wide
market); Sweet People Apparel, Inc. v. Zipper Clothing,
No. CV 12-02759-ODW (CWx), 2012 WL 1952842 at *4-5
(C.D. Cal. May 31, 2012) (awarding plaintiff $150,000
in statutory damages per infringed mark where
plaintiffs alleged that their jeans retailed for about
$100 and that sales of the jeans totaled tens of
millions of dollars); Beachbody, LLC v. Johannes, No.
CV 11-1148 PSG RZX, 2011 WL 3565226, at *3 (C.D. Cal.
Aug. 12, 2011) (rejecting plaintiff’s request for
$2,150,000 in statutory damages and instead awarding
$35,000 per mark willfully infringed for a total of
$105,000 where plaintiff could only show sales of 132
allegedly infringing DVDs); Castworld Products, 219
F.R.D. at 501 (awarding $2,000,000 in statutory damages
where defendant imported 8,000,000 counterfeit
cigarettes with a street value of millions of dollars).
Given Defendant’s serious infringing conduct and
Plaintiff’s evidence that it has been damaged at least
in the amount of $88,812.00, the Court finds that
Plaintiff is entitled to $100,000 per willfully

24

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 25 of 31 Page ID #:185

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

infringed mark for a total of $600,000. The Court
finds that such an award is reasonably calculated to
deter further illegal conduct and compensate Plaintiff
for any loss in reputation.

Injunctive Relief

2.
Plaintiff asks the Court to issue a permanent

injunction prohibiting Defendant from (1)
manufacturing, advertising, distributing, offering for
sale, selling, whether directly or indirectly,
counterfeit merchandise bearing Plaintiff’s Marks,
including those bearing marks or names confusingly
similar to Plaintiff’s Marks, (2) using Plaintiff’s
Marks or any colorable imitation thereof on or in
connection with the promotion, advertising,
distribution, manufacture, or sale of Defendant’s
goods, and (3) ordering Defendant to cancel, withdraw,
and recall all its promotions, advertisements, and
merchandise bearing Plaintiff’s Marks or any
confusingly similar simulation to Plaintiff’s Marks,
which have been published, placed, or shipped by
Defendant or under Defendant’s authority. Mot. 24:21-
25:12. The Lanham Act gives courts the power to grant
reasonable injunctions when necessary to prevent
further violations of the statutes. See 15 U.S.C. §
1116(a). A plaintiff, however, is not automatically
entitled to an injunction simply because it proves its
affirmative claims. Pyrodyne Corp. v. Pyrotronics
Corp., 847 F.2d 1398, 1402 (9th Cir. 1988).

25

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 26 of 31 Page ID #:186

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In order for a court to grant a permanent

injunction, the plaintiff must show:

(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as
monetary damages, are inadequate to compensate for
that injury;
(3) that, considering the balance of hardships
between the plaintiff and defendant, a remedy in
equity is warranted; and
(4) that the public interest would not be disserved
by a permanent injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006).

Regarding the first element, when a plaintiff
establishes in a trademark infringement or unfair
competition action a likelihood of confusion, it is
generally presumed that the plaintiff will suffer
irreparable harm if an injunction is not granted.
Abercrombie & Fitch Co. V. Moose Creek, Inc., 486 F.3d
629, 633 (9th Cir. 2007); Vision Sports, Inc., v.
Melville Corp., 888 F.2d 609, 612 n.3 (9th Cir. 1989).
The Ninth Circuit has found that an analogous
presumption for preliminary injunctions in the
copyright infringement context has effectively been
overturned in light of Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7 (2008) and eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388 (2006). See
Flexible Lifeline Sys., Inc. V. Precision Lift, Inc.,

26

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 27 of 31 Page ID #:187

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

654 F.3d 989, 994-98 (9th Cir. 2011). However, the
Ninth Circuit has yet to address the effect upon the
presumption of irreparable harm for permanent
injunctions in the trademark infringement context.
Accordingly, courts have continued to apply the
irreparable harm presumption in trademark infringement
cases for permanent injunctions, and this Court follows
suit. See Choice Hotels Intern., Inc. v. Kusum Vali,
Inc., No. 11CV1277 BTM(WMc), 2012 WL 2838183, at *3
(S.D. Cal. July 9, 2012); T-Mobile USA, Inc. V. Terry,
862 F. Supp. 2d 1121, 1133 (W.D. Wash. 2012). Here,
Plaintiff alleges that Defendant’s use of the
counterfeit OTTERBOX® mark in their manufacture,
marketing, sale, and distribution of goods is likely to
cause confusion, mistake, and deception among the
general public. Compl. ¶ 31. Thus, the Court finds
that Plaintiff is entitled to a presumption of
irreparable harm.

However, even without the legal presumption

afforded it by law, Plaintiff maintains that it will be
irreparably harmed by Defendant’s continued use and
infringement of Plaintiff’s trademark. Compl. ¶¶ 44,
49, 54. Thus, Plaintiff has satisfied the first
element.

Plaintiff has also satisfied the second element

concerning inadequate legal remedy. Plaintiff alleges
that unless enjoined, Defendant will continue to
infringe upon Plaintiff’s trademark. Id. ¶¶ 44, 49,

27

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 28 of 31 Page ID #:188

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

54. Defendant’s failure to respond or otherwise appear
in this Action does not assure that Defendant has
stopped infringing. See Jackson v. Sturkie, 255 F.
Supp. 2d 1096, 1103 (N.D. Cal. 2003) (granting a
permanent injunction as part of default judgment in
part because “defendant’s lack of participation in this
litigation has given the court no assurance that
defendant’s infringing activity will cease”). Although
an award of money damages may remedy Defendant’s past
wrongful acts, it will not adequately compensate for
Defendant’s future acts. Thus, the second element is
satisfied.

The third element requiring a balance of hardships

favors Plaintiff because if the injunction does not
issue, Defendant is more likely to continue violating
Plaintiff’s rights, imposing a hardship on Plaintiff.
Finally, the public interest will not be disserved

by a permanent injunction. To the contrary, if the
injunction is not granted, continued infringement will
discourage future innovative developments by failing to
provide an adequate forum through which corporations,
such as Plaintiff, may protect their ideas. See Amini
Innovation Corp. v KTY Intern. Marketing, 768 F. Supp.
2d 1049, 1057 (C.D. Cal. 2011). Additionally,
prohibiting Defendant from manufacturing, marketing,
selling, and distributing counterfeit OTTERBOX®
products will prevent the likelihood of future
confusion to consumers.

28

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 29 of 31 Page ID #:189

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Therefore, because Plaintiff has demonstrated the

requisite facts necessary to satisfy the aforementioned
four-part test, the Court GRANTS Plaintiff’s request
for a permanent injunction against Defendant: (1)
enjoining and permanently restraining Defendant from
manufacturing, advertising, distributing, offering for
sale, or selling, whether directly or indirectly,
counterfeit merchandise bearing Plaintiff’s Marks,
including any merchandise of any kind bearing
Plaintiff’s Marks or names that are confusingly similar
to the trademarks, trade names, designs or logos of
Plaintiff; (2) enjoining and permanently restraining
Defendant from using Plaintiff’s Marks or any copy,
reproduction, or colorable imitation, or confusingly
similar simulation of Plaintiff’s Marks on or in
connection with the promotion, advertising,
distribution, manufacture, or sale of Defendant’s
goods; and (3) ordering Defendant to cancel, withdraw,
and recall all its promotions, advertisements, and
merchandise bearing Plaintiff’s Marks or any
confusingly similar simulation of Plaintiff’s Marks,
which have been published, placed, or shipped by
Defendant or under Defendant’s authority.

Attorneys’ Fees

3.
The Lanham Act permits attorneys’ fees to be

granted in “exceptional” cases in which the defendant’s
behavior has been malicious, fraudulent, deliberate, or
willful. 15 U.S.C. § 1117(a)-(b); Sealy, Inc. v. Easy

29

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 30 of 31 Page ID #:190

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Living, Inc., 743 F.2d 1378, 1384 (9th Cir. 1984).
Willful infringement can be inferred from a defendant’s
failure to defend. eAdGear, Inc. v. Liu, No. CV-11-
05398 JCS, 2012 WL 2367805, at *19 (N.D. Cal. June 21,
2012); Ringcentral, Inc. v. Quimby, 711 F. Supp. 2d
1048, 1065 (N.D. Cal. 2010) (citing Castworld Products,
219 F.R.D. at 500).

As Defendant has failed to defend this Action, his

willful infringement of Plaintiff’s Marks can be
inferred. Moreover, Plaintiff has alleged Defendant’s
willful exploitation of Plaintiff’s Marks multiple
times in its Complaint, further showing Defendant’s
willful infringement. See Compl. ¶¶ 25-26, 29.

According to Local Rule 55-3, the amount of

attorney’s fees that a plaintiff may recover from a
default judgment hinges on the amount of judgment
awarded to the plaintiff, exclusive of costs. Pursuant
to the Local Rule 55-3 schedule, Plaintiff is entitled
to $5,600 plus 2% of the damages award over $100,000,
or $15,600. The Court thus awards Plaintiff $15,600 in
attorneys’ fees.

Costs

4.
Plaintiff also requests costs under 15 U.S.C. §
1117(a) in the amount of $639.90. Mot. 23:21-24.
Under the Lanham Act, a plaintiff that prevails on a
claim under 15 U.S.C. § 1125(a) or on a willful
violation under 15 U.S.C. § 1125(c) is entitled to
costs of the action. See § 1117(a). Here, Plaintiff

30

Case 2:13-cv-04384-RSWL-AGR Document 25 Filed 10/10/13 Page 31 of 31 Page ID #:191

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

has prevailed on its claims under § 1125(a) and also
prevailed on a willful violation under § 1125(c). As
such, the Court awards Plaintiff $639.90 in costs.

IV. Conclusion

The Court GRANTS Plaintiff’s Motion for Default
Judgment and awards Plaintiff $600,000 in statutory
damages; $15,600 in attorney’s fees; and $639.90 in
costs. The Court also GRANTS Plaintiff’s request for a
permanent injunction, the details of which to be
outlined in the Judgment.

IT IS SO ORDERED.
DATED: October 10, 2013


HONORABLE RONALD S.W. LEW
Senior, U.S. District Court Judge

31