Case 0:22-cv-61875-RAR Document 45 Entered on FLSD Docket 04/10/2023 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 22-CV-61875-RAR
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`SHARP SHIRTER INC.,
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`Plaintiff,
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`v.
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`THE INDIVIDUALS, PARTNERSHIPS, AND
`UNINCORPORATED ASSOCIATIONS
`IDENTIFIED ON SCHEDULE “A”,
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`Defendants.
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`ORDER ON MOTION FOR ENTRY OF FINAL JUDGMENT BY DEFAULT
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`THIS CAUSE comes before the Court upon Plaintiff Sharp Shirter Inc.’s (“Sharp Shirter”
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`or “Plaintiff”) Motion for Entry of Final Judgment by Default as to Certain Defendants Identified
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`on Schedule “A” and Incorporated Memorandum of Law (“Motion”), filed on April 5, 2023. [ECF
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`No. 44]. A Clerk’s Default was entered against Defendants listed in Schedule “A” to the
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`Complaint as 1-62, 64, 66-68, 71, and 73-121 (collectively, “Defaulting Defendants”). [ECF No.
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`1).1 Defaulting Defendants failed to appear, answer, or otherwise plead to the Complaint [ECF
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`No. 1] despite having been served. The Court has carefully considered the Motion, the record in
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`this case, the applicable law, and is otherwise fully advised. For the reasons stated herein, it is
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`hereby ORDERED AND ADJUDGED that Plaintiff’s Motion is GRANTED.
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`1 This Order does not apply to the Defendants identified in Schedule “A” who have been dismissed from
`the case. See [ECF Nos. 31, 38, 42].
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`Case 0:22-cv-61875-RAR Document 45 Entered on FLSD Docket 04/10/2023 Page 2 of 11
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`BACKGROUND2
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`Plaintiff is the owner of copyrights in two dimensional artworks and illustrations (the
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`“Works”). Plaintiff registered the Works with the Register of Copyrights (the “Copyrighted
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`Works”), shown in the chart below. Plaintiff is the owner of all the Works through copyright, and
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`some by written assignment.
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`Copyright Title
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`Registration Number Registration Date
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`Haymaker
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`Christmas Bear Punch
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`Punch Trunk Love
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`VA 1-866-764
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`VA 1-848-644
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`VAu 1-169-652
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`Shark Punch, et al.; Content Title:
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`VA00001925607
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`11/30/2012
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`11/30/2012
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`03/13/2014
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`08/27/2014
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`Shark Punch, Deep Sea Discovery,
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`20,000 Leagues Under The Trees,
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`Majestic Owl, Rhinocorn, Bloodsport
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`Barbie.
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`Caticorn, Flowers, SlothVegas, Hot
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`VAu 1-217-520
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`05/05/2015
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`Air Bearoons, Sea Creatures,
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`Slothzilla Titanic, Meowmore,
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`Goodnight Sloth
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`Sir Catspian, et al.; Content Title: Sir
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`VAu 1-237-859
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`11/16/2015
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`Catspian, CLAWS, Hammer Time,
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`Siamese Cats, Seahorse Hug,
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`2 The factual background is taken from Plaintiff’s Complaint [ECF No. 1], Plaintiff’s Motion [ECF No.
`44], and supporting evidentiary submissions.
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`2
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`Case 0:22-cv-61875-RAR Document 45 Entered on FLSD Docket 04/10/2023 Page 3 of 11
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`Octohug, Synchronized Sloth, Fish &
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`Ships, Llamadeus, Attack of 50 Foot
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`Feline, Elegant turtle, Octoparty.
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`Rockstars
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`Bear Spotting
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`Having a bear
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`Bearial Attack
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`Bear Strike Back
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`Bear Pong
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`VA0002312295
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`VA0002312296
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`VA0002312297
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`VA0002312298
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`VA0002312299
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`VA0002312316
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`07/14/2022
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`07/14/2022
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`07/14/2022
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`07/14/2022
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`07/14/2022
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`07/14/2022
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`Defendants, through the various Internet based e-commerce stores operating under each of
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`the Seller IDs identified on Schedule “A” hereto (the “Seller IDs”) have advertised, promoted,
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`offered for distribution, and/or distributed products using counterfeits,
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`infringements,
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`reproductions, and/or colorable imitations of the Copyrighted Works. Plaintiff has submitted
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`sufficient evidence showing each Defendant has infringed, at least, one of the Copyrighted Works.
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`Defendants are not now, nor have they ever been, authorized or licensed to use, reproduce, or make
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`counterfeits, or distribute the Copyrighted Works. See Compl. ¶¶ 40–90.
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`As part of its ongoing investigation regarding the sale of counterfeit and infringing
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`products, Sharp Shirter asserted that Defaulting Defendants are using the various webstores on
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`platforms such as AliExpress, Amazon.com, Alibaba, eBay.com, Wish.com and others to sell
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`Counterfeit Products from foreign countries such as China to consumers in the United States. See
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`Compl. ¶¶ 48–66. Sharp Shirter accessed defendants’ Internet based e-commerce stores operating
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`3
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`Case 0:22-cv-61875-RAR Document 45 Entered on FLSD Docket 04/10/2023 Page 4 of 11
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`under their respective Seller ID names through AliExpress.com, Amazon.com, eBay.com, and
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`Wish.com.
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`Upon accessing each of the e-commerce stores, Sharp Shirter viewed counterfeit products
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`using the Sharp Shirter’s Copyrighted Works, added products to the online shopping cart,
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`proceeded to a point of checkout, and otherwise actively exchanged data with each e-commerce
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`store. [ECF No. 14-2]. Sharp Shirter captured detailed web pages for each defendant store. Id.
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`A representative for Sharp Shirter personally analyzed the Sharp Shirter items wherein orders were
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`initiated via each of the Seller IDs by reviewing the e-commerce stores operating under each of
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`the Seller IDs, or the detailed web page captures and images of the items bearing the Sharp
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`Shirter’s Copyrighted Works, and concluded the products were non-genuine.3
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`A. Procedural History
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`Plaintiff sued Defendants for copyright infringement under the Copyright Act, 17 U.S.C.
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`§§ 106(1), (2), (5) & 501. Compl. ¶ 1. The Complaint alleges that Defendants are promoting,
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`advertising, distributing, selling, and/or offering for sale cheap copies of Plaintiff’s works in
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`interstate commerce that are counterfeits and infringements of plaintiff’s intellectual property
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`rights (the “Counterfeit Goods”) within the Southern District of Florida by operating the
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`Defendants’ Internet based e-commerce stores operating under each of the Seller IDs identified on
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`Schedule “A” attached to Plaintiff’s Motion for Entry of Final Default Judgment (the “Seller IDs”).
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`Compl. ¶¶ 33–38.
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`Plaintiff further asserts that Defendants’ unlawful activities have caused and will continue
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`to cause irreparable injury to Plaintiff because Defendants have 1) deprived Plaintiff of its right to
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`determine the manner in which its copyrights are presented to consumers; (2) defrauded consumers
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`3 Evidence of each Defendant’s infringement was attached as Exhibit 1 to the Declaration of Daniel
`Lachman. See [ECF No. 13–6].
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`into thinking Defendants’ illicit copies of Plaintiff’s copyrights are authorized by Plaintiff; (3)
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`deceived the public as to Plaintiff’s sponsorship of and/or association with Defendants’ counterfeit
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`products and the websites on online storefronts through which such products are sold, offered for
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`sale, marketed, advertised, and distributed; and (4) wrongfully damaged Plaintiff’s ability to
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`market its copyrighted works and educate consumers about its brand via the Internet in a free and
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`fair marketplace. Compl. ¶¶ 91–102.
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`In its Motion, Plaintiff seeks the entry of default final judgment against Defendants in an
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`action alleging infringement of copyright. Mot. at 1. Plaintiff further requests that the Court (1)
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`enjoin Defendants’ unlawful use of Plaintiff’s copyrighted works; (2) award Plaintiff damages;
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`and (3) instruct any third-party financial institutions in possession of any funds restrained or held
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`on behalf of Defendants to transfer these funds to the Plaintiff in partial satisfaction of the award
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`of damages. See generally Mot.
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`LEGAL STANDARD
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`Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Court is authorized to enter a
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`final judgment of default against a party who has failed to plead in response to a complaint. “A
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`‘defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact, is concluded on
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`those facts by the judgment, and is barred from contesting on appeal the facts thus established.’”
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`Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F. 3d 1298, 1307 (11th Cir. 2009)
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`(quoting Nishimatsu Const. Co., Ltd. v. Houston Nat’l Bank, 515 F. 2d 1200, 1206 (5th Cir. 1975));
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`Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987). “Because a defendant is not held to
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`admit facts that are not well pleaded or to admit conclusions of law, the Court must first determine
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`whether there is a sufficient basis in the pleading for judgment to be entered.” Luxottica Group
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`S.p.A. v. Individual, P'ship or Unincorporated Ass'n, 17-CV-61471, 2017 WL 6949260, at *2 (S.D.
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`Fla. Oct. 3, 2017); see also Buchanan, 820 F.2d at 361 (“[L]iability is well-pled in the complaint,
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`and is therefore established by the entry of default . . . .”).
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`If there are multiple defendants, the plaintiff must state in the Motion for Default Final
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`Judgment that there are no allegations of joint and several liability and set forth the basis why there
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`is no possibility of inconsistent liability. Generally, if one defendant who is alleged to be jointly
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`and severally liable with other defendants defaults, judgment should not be entered against that
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`defendant until the matter is adjudicated against the remaining defendants. See 10A Charles Alan
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`Wright and Arthur R. Miller, Federal Practice and Procedure § 2690 (3d ed. 1998) (citing Frow v.
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`De La Vega, 82 U.S. 552, 554 (1872) (“[A] final decree on the merits against the defaulting
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`defendant alone, pending the continuance of the cause, would be incongruous and illegal.”). “Even
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`when defendants are similarly situated, but not jointly liable, judgment should not be entered
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`against a defaulting defendant if the other defendant prevails on the merits.” Gulf Coast Fans, Inc.
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`v. Midwest Elecs. Imp., Inc., 740 F.2d 1499, 1512 (11th Cir. 1984).
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`Here, Plaintiff has stated in its Motion that there are no allegations of joint and several
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`liability with respect to damages. Mot. at 5. The Defaulting Defendants remaining in the case
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`have not appeared and have defaulted. Therefore, there is no possibility of inconsistent liability
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`between the Defaulting Defendants and an adjudication may be entered. The Court thus finds
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`there is a sufficient basis in the pleading for the default judgment to be entered with respect to the
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`Defaulting Defendants.
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`A. Claim - Infringement of Copyright
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`ANALYSIS
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`To prevail on a claim of direct infringement of copyright pursuant to the Copyright Act, 17
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`U.S.C. §§ 106(1), (2) and (5), Plaintiff must “satisfy two requirements to present a prima facie
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`case of direct copyright infringement: (1) they must show ownership of the allegedly infringed
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`material, and (2) they must demonstrate that the alleged infringers violated at least one exclusive
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`right granted to copyright holders under 17 U.S.C. § 106.” A&M Records, Inc. v. Napster, Inc.,
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`239 F.3d 1004, 1013 (9th Cir. 2001); see also Bell v. Wilmott Storage Servs., LLC, 12 F.4th 1065,
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`1071 (9th Cir. 2021); Cf. Disney Enters, Inc. v. Hotfile Corp., No. 11-20427, 2013 WL 6336286,
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`at *30 (S.D. Fla. Sept. 20, 2013).
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`B. Liability
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`The well-pled factual allegations of Plaintiff’s Complaint properly allege the elements for
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`each of the claims described above. See generally Compl. Moreover, the factual allegations in
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`Plaintiff’s Complaint have been substantiated by sworn declarations and other evidence and
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`establish Defendants’ liability under each of the claims asserted in the Complaint. Accordingly,
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`entry of default judgment pursuant to Federal Rule of Civil Procedure 55 is appropriate.
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`C. Injunctive Relief
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`Pursuant to 17 U.S.C. § 502(a), “[a]ny court having jurisdiction of a civil action arising
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`under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final
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`injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a
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`copyright.” 17 U.S.C. § 502. Injunctions are regularly issued pursuant to section 502 because
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`“the public interest is the interest in upholding copyright protections.” Arista Records, Inc. v.
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`Beker Enterprises, Inc., 298 F. Supp. 2d 1310, 1314 (S.D. Fla. 2003).
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`Permanent injunctive relief is appropriate where a plaintiff demonstrates that (1) it has
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`suffered irreparable injury; (2) there is no adequate remedy at law; (3) the balance of hardship
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`favors an equitable remedy; and (4) an issuance of an injunction is in the public’s interest. eBay,
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`Inc. v. MercExchange, LLC, 547 U.S. 388, 392–93 (2006). Plaintiffs have carried their burden on
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`each of the four factors. Accordingly, permanent injunctive relief is appropriate.
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`Plaintiff has no adequate remedy at law so long as Defaulting Defendants continue to
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`operate the Seller IDs because Plaintiff cannot control the quality of what appears to be its Sharp
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`Shirter’s works in the marketplace. An award of monetary damages alone will not cure the injury
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`to Plaintiff’s reputation and goodwill that will result if Defendants’ infringing and counterfeiting
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`actions are allowed to continue. Moreover, Plaintiff faces hardship from loss of sales and its
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`inability to control its reputation in the marketplace. By contrast, Defendants face no hardship if
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`they are prohibited from the infringement of Plaintiff’s copyrights, which are illegal acts.
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`Finally, the public interest supports the issuance of a permanent injunction against
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`Defendants to prevent consumers from being misled by Defendants’ counterfeit products and
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`piracy. See Nike, Inc. v. Leslie, No. 85–960 Civ–T–15, 1985 WL 5251, at *1 (M.D. Fla. June 24,
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`1985) (“(A)n injunction to enjoin infringing behavior serves the public interest in protecting
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`consumers from such behavior.”). The Court’s broad equity powers allow it to fashion injunctive
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`relief necessary to stop Defendants’ infringing activities. See, e.g., Swann v. Charlotte-
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`Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (“Once a right and a violation have been shown,
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`the scope of a district court’s equitable powers to remedy past wrongs is broad, for . . . (t)he essence
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`of equity jurisdiction has been the power of the Chancellor to do equity and to mold each decree
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`to the necessities of the particular case.”) (citation and internal quotation marks omitted); United
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`States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724 (1944) (“Equity has power to eradicate
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`the evils of a condemned scheme by prohibition of the use of admittedly valid parts of an invalid
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`whole.”).
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`Defendants have created an Internet-based infringement scheme in which they are profiting
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`from their deliberate misappropriation of Plaintiff’s rights. Unless the listings and images are
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`permanently removed, and the infringing goods destroyed, Defaulting Defendants will be free to
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`continue infringing plaintiff’s intellectual property with impunity and will continue to defraud the
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`public with their illegal activities. Therefore, the Court will enter a permanent injunction ordering
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`all listings and associated images of goods bearing counterfeits and/or infringements of Plaintiff’s
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`copyrights be permanently removed from Defaulting Defendants’ internet stores by the applicable
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`internet marketplace platforms, and all infringing goods in Defaulting Defendants’ inventories in
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`the possession of the applicable internet marketplace platforms destroyed.
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`D. Damages for Copyright Infringement
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`Under 17 U.S.C. § 504, Plaintiff is entitled to recover either the actual damages suffered
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`as a result of the infringement plus Defendants’ additional profits, or statutory damages. Actual
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`damages are “often measured by the revenue that the plaintiff lost as a result of the infringement,
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`which includes lost sales, lost opportunities to license, or diminution in the value of the copyright.”
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`Lorentz v. Sunshine Health Prods., No. 09-61529, 2010 WL 11492992, at *4 (S.D. Fla. Sep. 7,
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`2010) (internal quotations and citation omitted). Here, however, Defendants, who have not
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`appeared, control all the necessary information for a calculation of relief under § 504(b). As a
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`result, plaintiff cannot calculate an amount recoverable pursuant to 17 U.S.C. § 504(b). Instead,
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`Plaintiff seeks an award of statutory damages for Defendants’ willful infringement of plaintiff’s
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`copyrighted works under 17 U.S.C. § 504(c).
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`The allegations in the Complaint, which are taken as true, establish that Defendants listed
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`as copyright infringers in Exhibit 1 to the Motion intentionally infringed plaintiffs’ Copyrighted
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`Photographs for the purpose of advertising, marketing, and selling their Counterfeit Products.
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`Plaintiffs suggest the Court award the highest award per Work for willful infringement, $150,000.
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`This award is within the statutory range for a willful violation, and is sufficient to compensate
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`Plaintiff, punish the Copyright Defendants, and deter Copyright Defendants and others from
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`continuing to infringe Plaintiffs’ copyrights.
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`H. Attorney’s Fees and Costs
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`Plaintiff seeks an award of reasonable attorney’s fees pursuant to 17 U.S.C. § 505. Courts
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`routinely award attorney’s fees and costs upon a finding of willful infringement under the
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`Copyright Act. See Volkswagen Grp. of America, Inc. v. Varona, 2021 WL 1997573, at *10 (S.D.
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`Fla. May 18, 2021); Myeress v. Beautiful People Mag., Inc., No. 22-CV-20137, 2022 WL
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`1404596, at *4 (S.D. Fla. May 4, 2022); Max'is Creations, Inc. v. The Individuals, Partnerships,
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`And Unincorporated Associations Identified On Schedule “A,”, No. 21-CV-22920, 2022 WL
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`104216, at *9 (S.D. Fla. Jan. 11, 2022).
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`Plaintiff has established that Defendants acted willfully in their infringement of the
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`Copyrighted Works. Defendants failed to respond or otherwise act, leading to unjustified delays
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`and increased costs and fees. See Arista Records, 298 F. Supp. 2d. at 131. An award of attorneys’
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`fees and costs will serve the important functions of deterring future infringements, penalizing
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`Defendants for their unlawful conduct, and compensating Plaintiff for their fees and costs. Id.
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`Plaintiff requests the Court award the total attorney’s fees incurred to date in this case, for
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`a total of $18,835.00 plus court costs of $457.00. See Mot. Ex. 2 [ECF No. 44–2]. The Court
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`determines that the hourly rates for Plaintiff’s counsel are reasonable as established by the
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`Declaration of Joel Rothman. Mot. Ex. 1 [ECF No. 44–1]. The amount and rates are also
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`reasonable for the work performed as compared to other similar litigation.
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`The allegations in the Complaint establish that Defendants are causing and contributing “to
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`the creation and maintenance of an illegal marketplace operating in parallel to the legitimate
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`marketplace for plaintiff’s genuine goods,” and that they are causing concurrent and indivisible
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`harm to plaintiff and the consuming public by “(i) depriving plaintiff and other third parties of
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`their right to fairly compete for space within search engine results and reducing the visibility of
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`Plaintiff’s genuine goods on the World Wide Web, (ii) causing an overall degradation of the value
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`of the goodwill associated with Plaintiff’s business and its intellectual property assets, and (iii)
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`increasing plaintiff’s overall cost to market its goods and educate consumers via the Internet.”
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`[ECF No. 13-1] ¶ 76. The Court finds these allegations sufficient to assess Plaintiff’s attorneys’
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`fees and costs against Defendants jointly and severally. See Stanley Black & Decker, Inc. v. D&L
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`Elite Invs., LLC, No. C 12-04516 SC (LB), 2014 WL 3738327, at *20 (N.D. Cal. June 20, 2014),
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`report and recommendation adopted, No. 12-CV-04516-SC, 2014 WL 3728517 (N.D. Cal. July
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`28, 2014) (entering attorney’s fee award against defendants jointly and severally).
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`For the foregoing reasons, the Court finds that Plaintiff Sharp Shirter Inc., as the prevailing
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`party, is entitled to reasonable attorney’s fees and costs in the amount of $19,292.00.
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`CONCLUSION
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`Based on the foregoing, it is ORDERED AND ADJUDGED that Plaintiff’s Motion, [ECF
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`No. 44] is GRANTED with respect to Defaulting Defendants listed in the attached Schedule “A”
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`to the Complaint as 1-62, 64, 66-68, 71, and 73-121. Final Default Judgment will be entered by
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`separate order.
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`DONE AND ORDERED in Miami, Florida, this 10th day of April, 2023.
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` _________________________________
` RODOLFO A. RUIZ II
` UNITED STATES DISTRICT JUDGE
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`11
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