YIP, LLC

v.

THE INDIVIDUALS, BUSINESS ENTITIES, AND UNINCORPORATED ASSOCIATIONS IDENTIFIED ON SCHEDULE A

1 The Plaintiff has brought the following claims: (1) “Count I – Trademark Counterfeiting and Infringement Pursuant to § 32 of the Lanham Act (15 U.S.C. § 1114),” Amended Complaint at 13– 14; (2) “Count II – False Designation of Origin Pursuant to § 43(a) of the Lanham Act (15 U.S.C. § 1125(a)),” id. at 14–15; (3) “Count III – Common Law Unfair Competition,” id. at 15–16; and (4) “Count IV – Common Law Trademark Infringement,” id. at 16. Magistrate Judge Hunt also warned the parties as follows: Within fourteen days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to any of the above findings and recommendations as provided by the Local Rules for this district. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely object waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3-1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).” Id. at 20. Despite this warning, the Defendants have not timely objected to Magistrate Judge Hunt’s R&R. See generally Docket. When a magistrate judge’s “disposition” has been properly objected to, district courts must review that disposition de novo. FED. R. CIV. P. 72(b)(3). But when no party has timely objected, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (citation omitted). Although Rule 72 itself is silent on the standard of review, the Supreme Court has acknowledged that Congress’ intent was to require de novo review only where objections have been properly filed—and not, as here, when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”). In any event, the “[f]ailure to object to the magistrate [judge]’s factual findings after notice precludes a later attack on these findings.” Lewis v. Smith, 855 F. 2d 736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright, 677 F. 2d 404, 410 (5th Cir. 1982)). The Court has reviewed the R&R, the record, and the applicable law, and can find no clear error on the face of the R&R. Accordingly, the Court hereby ORDERS AND ADJUDGES as follows: 1. The R&R [ECF No. 42] is ACCEPTED and ADOPTED. 2. The Motion [ECF No. 39] is GRANTED as follows: a. Permanent Injunctive Relief: The Defendants and their officers, directors, employees, agents, representatives, servants, subsidiaries, distributors, attorneys, and all persons acting in concert and participation with the Defendants are hereby permanently restrained and enjoined from: i. manufacturing or causing to be manufactured, importing, advertising, or promoting, distributing, selling or offering to sell counterfeit and infringing goods bearing and/or using Plaintiff’s trademarks, or any confusingly similar trademarks identified in Paragraph 15 of the Amended Complaint (the “YIP Marks”); ii. using the YIP Marks in connection with the sale of any unauthorized goods; iii. using any logo, and/or layout which may be calculated to falsely advertise the services or products of the Defendants as being sponsored by, authorized by, endorsed by, or in any way associated with the Plaintiff; iv. falsely representing themselves as being connected with the Plaintiff, through sponsorship or association; v. engaging in any act which is likely to falsely cause members of the trade and/or of the purchasing public to believe any goods or services of the Defendants are in any way endorsed by, approved by, and/or associated with the Plaintiff; vi. using any reproduction, counterfeit, copy, or colorable imitation of the YIP Marks in connection with the publicity, promotion, sale, or advertising of any goods sold by the Defendants; vii. affixing, applying, annexing or using in connection with the sale of any goods, a false description or representation, including words or other symbols tending to falsely describe or represent goods offered for sale or sold by the Defendants as being those of the Plaintiff or in any way endorsed by the Plaintiff and from offering such goods in commerce; viii. otherwise unfairly competing with the Plaintiff; ix. using the YIP Marks, or any confusingly similar trademarks on e- commerce websites, within domain name extensions, metatags, or other markers within website source code, from use on any webpage (including as the title of any web page), from any advertising links to other websites, from search engines’ databases or cache memory, and from any other form of use of such terms which are visible to a computer user or serves to direct computer searches to websites or domain names, registered by, owned, or operated by the Defendants; and x. effecting assignments or transfers, forming new entities or associations or utilizing any other device for the purpose of circumventing or otherwise avoiding the prohibitions set forth above. b. Additional Equitable Relief: i. Upon Plaintiff’s request, the Internet marketplace website operators and/or administrators for the e-commerce stores operating under the seller identification names identified on Schedule “A” hereto (“Seller IDs”), including but not limited to Alibaba.com Hong Kong Limited, which operates the AliExpress.com platform, Amazon.com, Inc., eBay Inc., and ContextLogic, Inc., which operates Wish.com platform, shall permanently remove from the multiple platforms, which include, inter alia, a Direct platform, Group platform, Seller Product Management platform, Vendor Product Management platform, and Brand Registry platform, any and all listings and associated images of goods bearing and/or using counterfeits and/or infringements of the YIP Marks via the e-commerce stores operating under the Seller IDs, including but not limited to the listings and associated images identified by the “parent” and/or “child” Amazon Standard Identification Numbers (“ASIN”) on Schedule “A” hereto, and any other listings and images of goods bearing counterfeits and/or infringements of the YIP Marks associated with any “parent” and “child” ASIN linked to the same sellers or any other alias seller identification names being used and/or controlled by the Defendants to promote, offer for sale and/or sell goods bearing and/or using counterfeits and/or infringements of the YIP Marks; and ii. Upon Plaintiff’s request, Defendants and any Internet marketplace website operator and/or administrator who is in possession, custody, or control of Defendants’ goods bearing and/or using one or more of the YIP Marks, including but not limited to Alibaba.com Hong Kong Limited, which operates the AliExpress.com platform, Amazon.com, Inc., eBay Inc., and ContextLogic, Inc., which operates Wish.com platform, shall permanently cease fulfillment of and sequester those goods, and surrender the same to Plaintiff. c. Statutory Damages pursuant to 15 U.S.C. § 1117(c): Award the Plaintiff damages of $1,000,000.00 against each Defendant, for which let execution issue, based upon the Court’s finding that each Defendant infringed at least one trademark on one type of good. The Court considered both the willfulness of each Defendant’s conduct and the deterrent value of the award imposed, and the awarded amount falls within the permissible statutory range under 15 U.S.C. § 1117(c). d. All funds currently restrained or held on account for all Defendants by all financial institutions, payment processors, banks, escrow services, money transmitters, or marketplace platforms, including but not limited to, Alibaba.com Hong Kong Limited, which operates the Alibaba.com Hong Kong Limited, which operates the AliExpress.com platform (“AliExpress”), Zhejiang Ant Small and Micro Financial Services Group Co., Ltd. (“Ant Financial Services”), AliPay (China) Internet Technology Co. Ltd., Alipay.com Co., Ltd., and Alipay Singapore E-Commerce Private Limited (collectively, “Alipay”), Amazon Payments, Inc. (“Amazon”), PayPal, Inc. (“PayPal”), ContextLogic, Inc., which operates the Wish.com website (“ContextLogic”), and their related companies and affiliates, are to be immediately (within 5 business days), transferred by the previously referred to financial institutions, payment processors, banks, escrow services, money transmitters, or marketplace platforms and by Defendants, to Plaintiff and/or Plaintiff’s counsel in partial satisfaction of the monetary judgment entered herein against each Defendant. All financial institutions, payment processors, banks, escrow services, money transmitters, or marketplace platforms, including but not limited to, AliExpress, Ant Financial Services, Alipay, Amazon, PayPal, and ContextLogic, and their related companies and affiliates, shall provide to Plaintiff at the time the funds are released, a breakdown reflecting the (i) total funds restrained in this matter per Defendant; (ii) the total chargebacks, refunds, and/or transaction reversals deducted from each Defendant’s funds restrained prior to release; and (iii) the total funds released per Defendant to Plaintiff. e. Interest from the date this action was filed shall accrue at the legal rate. See 28 U.S.C. § 1961. f. The bond posted by the Plaintiff in the amount of $10,000.00 is ordered to be released by the Clerk. g. The Court retains jurisdiction to enforce this Final Default Judgment and Permanent Injunction. 3. This case shall remain CLOSED. All other deadlines are TERMINATED, and any other pending motions are DENIED as moot. DONE AND ORDERED in Fort Lauderdale, Florida this 12th day of July 2022.