United States District Court, D. Nebraska
COACH, INC. and COACH SERVICES, INC. Plaintiffs,
RAJA D. QUINN, d/b/a WHOLESALE OUTLET, a/k/a RAJA DEJOURN FASHIONS & FAWAZ MUMTAZ RETAIL OUTLET, Defendant.
MEMORANDUM AND ORDER
M. GERRARD UNITED STATES DISTRICT JUDGE.
matter is before the Court on the renewed motion for default
judgment (filing 49) filed by the plaintiffs, Coach, Inc. and
Coach Services, Inc. (collectively, Coach). The Court will
grant the motion and award $5, 000 in damages.
Court's Memorandum and Order of November 2, 2017 (filing
40) set forth the Court's findings that the admitted
allegations of Coach's complaint constitute a legitimate
cause of action against defendant Raja Quinn for both mark
infringement and unfair competition under the Lanham Act, 15
U.S.C. § 1051 et seq., and violation of the
Nebraska Uniform Deceptive Trade Practices Act (UDTPA), Neb.
Rev. Stat. § 87-301 et seq. Filing 40 at 5-6.
The Court's Memorandum and Order also set forth the
Court's finding that Coach was entitled to a permanent
injunction to be entered at final judgment. Filing 40 at 6-7.
The only pending issues unresolved by the Court's
Memorandum and Order were damages and attorney fees.
See filing 40 at 11-12.
Lanham Act permits a plaintiff to recover the defendant's
profits, any damages sustained by the plaintiff, and the
costs of the action. 15 U.S.C. § 1117(a). But in a case
involving the use of a counterfeit mark, a plaintiff may
instead elect to recover an award of statutory damages for
any such use in connection with the sale, offering for sale,
or distribution of goods or services in the amount of--
(1) 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; or
(2) if the court finds that the use of the counterfeit mark
was willful, 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.
1117(c). Coach has made such an election in this case.
has moved for an award of $400, 000. Filing 50 at 12. The
Court has already found that Quinn's conduct was willful,
and willfulness may also be inferred from a failure to
defend. Filing 40 at 8. And as the Court outlined in its
previous memorandum and order, § 1117(c) itself does not
provide guidelines for the Court in determining an
appropriate award, instead leaving it to the Court's
discretion to award an amount it "considers just."
Filing 40 at 7-9 (collecting cases). The Court must exercise
discretion in examining whatever facts and considerations are
available in a setting of limited information. Filing 40 at
plaintiff, however, should not secure a windfall. See
Yelp Inc. v. Catron, 70 F.Supp.3d 1082, 1089 (N.D. Cal.
2014); Rolls-Royce PLC v. Rolls-Royce USA, Inc., 688
F.Supp.2d 150, 157 (E.D.N.Y. 2010); Century 21 Real
Estate LLC v. Bercosa Corp., 666 F.Supp.2d 274, 293
(E.D.N.Y. 2009). And, analogizing to the similarly worded
statutory damages provision of the Copyright Act, 17 U.S.C.
§ 504(c), the Court considers
(1) the defendant's expenses saved and profits reaped;
(2) the plaintiff's lost revenue; (3) the value of the
trademark; (4) general deterrence; (5) the willfulness of the
defendant's conduct; (6) the defendant's cooperation
in providing records from which to determine the value of the
infringing products; and (7) specific deterrence of the
40 at 9.
this case, the Court has very little to work with when
considering those factors. In its previous Memorandum and
Order, the Court observed that Coach ought to be able to
provide evidence of the value of its marks. Filing 40 at 10.
And, the Court suggested, Coach might be able to present
evidence of how much revenue a business like Quinn's
would be expected to generate, or how much revenue Coach
might have lost. Filing 40 at 10. "[E]vidence of
hypothetical fees and projected revenues (or any other
evidence Coach is able to provide) might give the Court a
basis, " the Court advised, "not just to
approximate profits and damages, but also determine what
amount would serve as appropriate deterrence." Filing 40
offered the Court very little additional help in that regard.
See filing 50. In fact, while Coach alleged that the
counterfeit sunglasses at issue here were purchased for $35,
filing 1 at 12, Coach hasn't even offered the Court
evidence of the retail price of a genuine pair of Coach
sunglasses. Nor has Coach offered the Court anything more
than speculation upon which to assess the general scope of