Case 2:13-cv-01999-JCM-NJK Document 40 Filed 10/27/14 Page 1 of 12
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`HAKKASAN LV, LLC, et al.,
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`Case No. 2:13-cv-01999-JCM-NJK
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`Plaintiffs,
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`ORDER
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`v.
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`VIP, UNLTD, LLC, et al.,
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`Defendants.
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`Presently before the court is a motion for summary judgment filed by Hakkasan LV, LLC
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`and Hakkasan Limited (hereinafter “plaintiffs”). (Doc. # 35). To date, defendant Andrew
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`Rockwell (hereinafter “defendant”) has not responded to plaintiffs’ motion for summary judgment.
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`Also before the court is plaintiffs’ motion for partial summary judgment on the issue that
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`defendant Rockwell is personally liable for the judgment entered against VIP, a sole
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`proprietorship. (Doc. # 34). To date, defendant has not responded to plaintiffs’ motion for partial
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`summary judgment.
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`I.
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`Background
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`This case involves claims for cybersquatting, trademark infringement, counterfeiting,
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`unfair competition, and copyright infringement under federal statutes. Along with the federal
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`claims, plaintiffs have also alleged pendent claims for common law trademark infringement, state
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`deceptive trade practices, fraud, and intentional interference with prospective economic advantage.
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`Hakkasan is a famous restaurant and nightlife venue with multiple locations around the
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`world. Hakkasan owns the mark, HAKKASAN, in connection with restaurant, bar, and nightclub
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`services. Hakkasan owns a federal trademark registration (U.S. Reg. No. 3,789,248) for bar and
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`restaurant services and a trademark registration (U.S. Reg. No. 4,458,604) for nightclubs and
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`nightclub services, such as reservations and booking.
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`Hakkasan opened its first location in 2001, its first location in the United States in 2009,
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`and its Las Vegas location in 2012. Plaintiffs have used the HAKKASAN marks in connection
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`with advertising and promoting its restaurant and nightclub services around the world since 2001.
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`Plaintiffs have spent millions of dollars to advertise and promote the HAKKASAN marks in print,
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`broadcast media, and on the internet through their website.
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`Based on its federal trademark registrations and extensive use, Hakkasan owns the
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`exclusive right to use its HAKKASAN marks in connection with restaurant, bar, and nightclub
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`services. The uniqueness of Hakkasan, along with the extensive advertising and promotion, has
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`resulted in the global distinctiveness of the HAKKASAN name and marks.
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`Defendants registered the domain name <www.hakkasanclublasvegas.com>, created a
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`website linked to the name, and claimed to be “your source for the most up to date developments
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`about your favorite Vegas mega-club.” The website contained plaintiffs’ federally registered
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`trademark and logo, together with images and other materials stolen directly from plaintiffs’ own
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`website.
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`On the website, defendants claimed they were authorized to offer services to the public on
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`behalf of Hakkasan. Defendants knowingly and willfully offered and sold counterfeit services,
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`including access to the nightclub, VIP bottle services, and event services. Plaintiffs did not license
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`or approve of defendants’ use of the HAKKASAN marks in any way, nor did plaintiffs approve
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`of defendants’ sale of the services on his website in false association with the HAKKASAN marks.
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`On October 30, 2013, plaintiffs filed this action against defendants seeking an injunction
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`and damages arising out of defendants’ use of plaintiffs’ trademarks and copyrights. After
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`defendants were served with the summons and first amended complaint on January 2, 2014,
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`defendant VIP failed to respond within the required time. The clerk of court then entered default
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`against VIP on all claims set forth in plaintiffs’ complaint. Plaintiffs subsequently filed a motion
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`for default judgment and permanent injunction against VIP, which this court granted on June 12,
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`2014.
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`Plaintiffs now request that the court enter summary judgment against defendant Rockwell.
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`Plaintiffs also request a permanent injunction against defendant Rockwell, to prevent future
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`infringement, and for all of the rights in the <www.hakkasanclubvegas.com> domain name to be
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`transferred to plaintiffs.1
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`II.
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`Legal Standard
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`Pursuant to Local Rule 7-2(d), an opposing party’s failure to file a timely response to any
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`motion constitutes the party’s consent to the granting of the motion and is proper grounds for
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`dismissal. LR 7-2(d). A court cannot, however, grant a summary judgment motion merely because
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`it is unopposed, even where its local rules might permit it. Henry v. Gill Indus., Inc., 983 F.2d
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`943, 949-50 (9th Cir. 1993); see also Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) (a
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`district court cannot grant a motion for summary judgment based merely on the fact that the
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`opposing party failed to file an opposition).
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`Even without an opposition, the court must apply standards consistent with Federal Rule
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`of Civil Procedure 56, determining if the moving party’s motion demonstrates that there is no
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`genuine issue of material fact and judgment is appropriate as a matter of law. Henry, 983 F.2d at
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`950; see also Clarendon Am. Ins. Co. v. Jai Thai Enters., LLC, 625 F. Supp. 2d 1099, 1103 (W.D.
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`Wash. 2009).2
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`The Federal Rules of Civil Procedure provide for summary judgment when the pleadings,
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`depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
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`show that “there is no genuine dispute as to any material fact and the movant is entitled to a
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`judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is
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`the
`32),
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`order,
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`prior
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`Pursuant
`<www.hakkasannightclubvegas.com> domain name have already been unlocked and permanently
`transferred to plaintiffs. Accordingly, the present order will consider only the requests for summary
`judgment and a permanent injunction against defendant Rockwell.
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`2 “[S]ummary judgment cannot be granted by default, even if there is a complete failure to
`respond to the motion.” Fed. R. Civ. P. 56, 2010 cmt. to subdivision (e). The court may only grant summary
`judgment if “the motion and supporting materials . . . show that the movant is entitled to it.” Fed. R. Civ.
`P. 56(e).
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`“to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317,
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`323-24 (1986).
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`In determining summary judgment, a court applies a burden-shifting analysis. “When the
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`party moving for summary judgment would bear the burden of proof at trial, it must come forward
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`with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at
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`trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine
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`issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests.,
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`Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).
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`By contrast, when the nonmoving party bears the burden of proving the claim or defense,
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`the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential
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`element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed
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`to make a showing sufficient to establish an element essential to that party’s case on which that
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`party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving
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`party fails to meet its initial burden, summary judgment must be denied and the court need not
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`consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60
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`(1970).
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`If the moving party satisfies its initial burden, the burden then shifts to the opposing party
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`to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith
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`Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the
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`opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient
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`that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing
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`versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,
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`631 (9th Cir. 1987).
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`III.
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`Discussion
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`For summary judgment to be appropriate, plaintiffs must prove that they showed all
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`essential elements of the claims. If plaintiffs succeed in this, the burden would then shift to
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`defendant to show that a genuine dispute of material fact exists. Because defendant failed to
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`respond to plaintiffs’ motion, the court must evaluate the evidence to determine whether the
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`standard has been satisfied.
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`A.
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`Anti-Cybersquatting Consumer Protection Act
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`The Anti-Cybersquatting Protection Act (“ACPA”) provides that:
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`A person shall be liable in a civil action by the owner of a mark…if without regard
`to the goods or services of the parties, that person --
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`has a bad faith intent to profit from that mark, including a personal
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`name which is protected as a mark under this section; and
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`registers, traffics in, or uses a domain name that --
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`in the case of a mark that is distinctive at the time of
`registration of the domain name, is identical or confusingly similar
`to that mark;
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`in the case of a famous mark that is famous at the time of
`registration of the domain name, is identical or confusingly similar
`to or dilutive of that mark. 15 U.S.C. § 1125(d)(1)(A).
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`Defendant is liable under the ACPA if he had a bad faith intent to profit from using a
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`famous mark as a domain name. Defendant registered the domain name with no right to the
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`HAKKASAN marks. This indicates defendant’s bad faith intent to traffic and profit from the
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`domain name.
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`Pursuant to the ACPA, courts must look to a number of factors to determine if defendant
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`had a bad faith intent. These factors include the person’s prior use of the domain name, whether
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`the domain name contains any of the person’s legal names, the extent to which the mark is
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`distinctive or famous, and the trademark or other intellectual property rights of the person.
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`Defendants have no trademark right in the registered domain name. Further, the domain
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`name does not contain any of defendant’s legal names. Defendant used an identical or confusingly
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`similar mark to plaintiffs’ famous trademarks in the domain name for his infringing site. These
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`factors show that defendant intended to divert consumers from plaintiffs’ website and create
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`confusion about the source. Plaintiffs have provided facts to support that defendant had a bad faith
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`intent to profit from the HAKKASAN marks.
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`Plaintiffs’ HAKKASAN marks are famous and entitled to protection. The marks are
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`arbitrary trademarks because they do not suggest the goods and services offered. See
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`Entrepreneurs Media Inc. v. Smith, 279 F.3d 1135, 1141 (9th Cir. 2002). Further, the marks are
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`suggestive because they require imagination to link the marks with the goods or services. See
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`Interstellar Starship Svcs. Ltd. v. Epix, Inc., 304 F.3d 936 (9th Cir. 2002). Arbitrary and suggestive
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`trademarks receive protection because of their distinctiveness. Id.
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`Plaintiffs also satisfy the second element under the ACPA. The domain name registered
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`by defendant is identical or confusingly similar to the HAKKASAN trademark. In fact, the
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`infringing domain name encompasses the entirety of the HAKKASAN marks.
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`Overall, plaintiffs have provided facts to support all of the elements of a claim under the
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`ACPA. Defendant failed to respond and show that a genuine issue of material fact exists.
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`Accordingly, the court finds that plaintiffs have satisfied the standard for summary judgment as to
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`the cybersquatting claim under 15 U.S.C. 1125(d).
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`B.
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`Trademark infringement
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`To succeed on the merits of the trademark infringement and unfair competition claims
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`under the Lanham Act, plaintiffs must establish that defendant’s use of plaintiffs’ marks caused a
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`likelihood of confusion among the consumers. See 15 U.S.C. § 1114(a); Metro Publ’g Ltd. v. San
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`Jose Mercury News, 987 F.2d 637, 640 (9th Cir. 1993). Confusion can occur solely by registering
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`an infringing domain name.
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`By using plaintiffs’ name and marks to provide links to a website entitled “Hakkasan Las
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`Vegas Night Club” and offering the same types of goods and services as plaintiffs, defendant
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`intended to deceive the public. This creates the presumption of confusion. See Acad. of Motion
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`Pictures Arts and Sci. v. Creative House Promotions, 944 F.2d 1446, 1456 (9th Cir. 1991) (“Where
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`evidence shows that one company deliberately adopted another's name to obtain advantage from
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`the other's good will, we may infer a likelihood of confusion”).
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`Even without the presumption of confusion, plaintiffs demonstrate that there is a likelihood
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`of confusion between their HAKKASAN marks and defendant’s use of the marks on his website.
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`The Ninth Circuit has found that in the context of the internet, three factors need to be addressed:
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`(1) the similarity of the marks; (2) the relatedness of the goods or services; and (3) the simultaneous
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`use of the web, as a marketing channel. See GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199,
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`1205 (9th Cir. 2000).
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`Since defendant intended to deceive the public, the court finds the presumption of
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`confusion. However, even without the presumption of confusion, plaintiffs succeed on the merits
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`of their trademark infringement claim. Defendant used a mark identical to plaintiffs’
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`HAKKASAN marks in order to deceive the consumers. The goods and services in connection
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`with defendant’s infringing domain name were related, if not identical, to those provided by
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`plaintiffs. Both plaintiffs and defendant used the internet to advertise the services offered under
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`the HAKKASAN marks, thus, the use of the web, as a marketing channel, was simultaneous.
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`Overall, plaintiffs have provided facts to support all of the elements of a claim for
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`trademark infringement. Defendant failed to respond and show that a genuine issue of material
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`fact exists. Accordingly, the court finds that plaintiffs have satisfied the standard for summary
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`judgment as to their trademark infringement claim.
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`C.
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`Unfair competition
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`Pursuant to the Lanham Act, 15 U.S.C. § 1125(a), a claim for unfair competition exists
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`when:
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`(1) Any person…in connection with any goods or services…uses in
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`commerce any word…symbol…or any false designation of origin, false or
`misleading description of fact, or false or misleading representation of fact, which -
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` is likely to cause confusion…mistake, or to deceive as to the
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`affiliation, connection, or association of such person with another person, or as to
`the origin, sponsorship, or approval of his or her goods, services, or commercial
`activities by another person.
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`Defendant used the HAKKASAN name and marks in a false and misleading manner. He
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`misrepresented to the public that he was affiliated with, connected to, or associated with plaintiffs’
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`HAKKASAN brand. Defendant intended to confuse and deceive the public in order to profit.
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`Overall, plaintiffs have provided facts to support the elements of a claim for unfair
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`competition under 15 U.S.C. § 1125(a). Defendant failed to respond and show that a genuine issue
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`of material fact exists. Accordingly, the court finds that plaintiffs have satisfied the standard for
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`summary judgment as to this claim.
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`D.
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`Counterfeiting
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`A "counterfeit" is a spurious mark which is identical with, or substantially indistinguishable
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`from, a registered mark. 15 U.S.C. § 1127. Defendant used counterfeit HAKKASAN marks on
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`the sale of nightclub tickets and other related goods and services without plaintiffs’ consent.
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`As previously discussed, plaintiffs have established the likelihood of confusion between
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`their HAKKASAN marks and the mark used by defendant. Plaintiffs HAKKASAN marks were
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`protected and defendant was unauthorized to use them. Plaintiffs have provided facts to support
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`their counterfeiting claim. Defendant failed to respond and show that a genuine issue of material
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`fact exists. Plaintiffs are entitled to summary judgment as to the counterfeiting claim.
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`E.
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`Copyright infringement
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`Plaintiffs must satisfy two requirements to show copyright infringement: (1) they must
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`show ownership of the allegedly infringed material and (2) they must demonstrate that the
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`defendant violated at least one exclusive right granted to copyright holders under 17 U.S.C. § 106.
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`17 U.S.C. § 501; see A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001).
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`Under the Copyright Act, 17 U.S.C. § 501, infringement is willful if defendant acts with knowledge
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`that he or she is infringing a copyright. Peer Int'l Corp. v. Pausa Records, Inc., 909 F.2d 1332,
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`1335 (9th Cir. 1990).
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`The court finds that plaintiffs have sufficiently shown ownership of the HAKKASAN
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`marks. The court further finds that defendant violated plaintiffs’ exclusive rights granted to
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`copyright holders. Defendant acted with knowledge that he was infringing a copyright. Defendant
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`disregarded plaintiffs’ intellectual property rights and willfully infringed plaintiffs’ copyrights.
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`Plaintiffs have provided facts to support both elements of copyright infringement.
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`Defendant failed to respond and show that a genuine issue of material fact exists. Accordingly,
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`the court finds that plaintiffs have satisfied the standard for summary judgment as to this claim.
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`F.
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`Common law trademark infringement
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`In order to show common law trademark infringement, plaintiffs need only prove two
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`elements. See A.L.M.N., Inc. v. Rosoff, 104 Nev. 274, 277 (1988). First, plaintiffs must show that
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`they own a protectable right in the marks. Id. Second, they must show that defendant’s registration
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`of the infringing domain name is likely to “confuse, cause mistake or deceive an ‘appreciable
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`number’ of reasonable customers” with respect to the marks. Id.
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`Plaintiffs’ marks are federally registered. Further, plaintiffs have been in continuous and
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`exclusive use of the marks prior to opening their Hakkasan location in Las Vegas. Defendant’s
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`use of the infringing domain name, the HAKKASAN name, marks, and logo are likely to “confuse,
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`cause mistake or deceive an ‘appreciable number’ of reasonable customers” with respect to the
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`marks. Id.
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`The Nevada Supreme Court has adopted a seven factor test to determine the likelihood of
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`confusion between similar marks. These factors include the: (1) similarity of marks; (2) similarity
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`of services; (3) marketing channels used; (4) evidence of actual confusion; (5) strength of the mark;
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`(6) junior user’s intent in adopting the mark; and (7) degree of care likely to be exercised by the
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`purchaser. Id. at 282.
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`These factors were discussed in detail above. It is likely defendant’s use of the marks could
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`cause confusion. Overall, plaintiffs have provided facts to support all of the elements of a claim
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`for common law trademark infringement. Defendant failed to respond and show that a genuine
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`issue of material fact exists. Accordingly, the court finds that plaintiffs have satisfied the standard
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`for summary judgment as to this claim.
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`G.
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`State deceptive trade practices
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`Pursuant to NRS 598.0915, a person engages in a deceptive trade practice if, in the course
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`of his business, he knowingly:
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`(1) Passes off goods or services for sale or lease as those of another person;
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`(2) Makes a false representation as to the source, sponsorship, approval, or
`certification of goods or services for sale or lease; (3) Makes a false representation
`as to affiliation, connection, association with or certification by another person…;
`(6) Represents that goods or services for sale or lease are of a particular standard,
`quality or grade. NRS 598.0915.
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`Defendant passed off his VIP services under the HAKKASAN marks. Further, defendant
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`falsely claimed to consumers that plaintiffs authorized him to use the marks. Defendant used the
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`famous HAKKASAN name and logo and claimed that it was in affiliation, connection, and
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`association with plaintiffs. However, plaintiffs have shown that no such relationship exists.
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`Defendant intentionally misrepresented his business to deceive the public into purchasing
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`unauthorized tickets to Hakkasan from him. Defendant profited from this practice.
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`Plaintiffs have proven their deceptive trade practices claim under Nevada law. Defendant
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`failed to respond and show that a genuine issue of material fact exists. Accordingly the court finds
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`that plaintiffs are entitled to summary judgment as to this claim.
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`H.
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`Fraud
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`A plaintiff has the burden of proving the elements of fraud by clear and convincing
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`evidence. Lubbe v. Barba, 91 Nev. 596, 598 (1975). The elements of fraud are:
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`A false representation made by the defendant; (2) Defendant's
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`knowledge or belief that the representation is false; (3) Defendant's intention to
`induce the plaintiff to act or to refrain from acting in reliance upon the
`misrepresentation; (4) Plaintiff's justifiable reliance upon the misrepresentation;
`and (5) Damage to the plaintiff resulting from such reliance. Bulbman, Inc. v.
`Nevada Bell, 108 Nev. 105, 111, (1992).
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`Defendant falsely represented himself as an agent of Hakkasan and identified himself to
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`the public as authorized to sell tickets to Hakkasan. Further, defendant had knowledge that these
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`representations were false. Defendant intended to induce plaintiffs into accepting his unauthorized
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`tickets from patrons when they showed up at Hakkasan. Defendant profited from these
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`misrepresentations. Plaintiffs were placed in the situation to either accept the tickets, without pay,
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`or dissatisfy their customers. By accepting defendant’s tickets, plaintiffs lost revenue.
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`Overall, plaintiffs have provided facts to support the elements of fraud by clear and
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`convincing evidence. Defendant failed to respond and show that a genuine issue of material fact
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`exists. Accordingly, the court finds that plaintiffs have satisfied the standard for summary
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`judgment as to their common law fraud claim.
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`I.
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`Intentional interference with prospective economic advantage
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`In Nevada, intentional interference with prospective economic advantage requires five
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`elements to be met. Leavitt v. Leisure Sports Inc., 103 Nev. 81, 88 (1987). First, a prospective
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`contractual relationship must exist or have existed between the plaintiff and a third party. Id.
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`Second, defendant must have knowledge of this relationship. Id. Third, defendant must have
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`intended to harm plaintiff by preventing this relationship. Id. Next, defendant must have had no
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`privilege or justification. Id. Finally, defendant’s conduct must have resulted in actual harm to
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`plaintiff. Id.
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`Plaintiffs enter into contracts with patrons by selling tickets to them and providing them
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`with services at Hakkasan. Therefore, a contractual relationship exists between plaintiffs and a
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`third party. It is clear from defendant’s business plan and website that he has knowledge of this
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`relationship between plaintiffs and their customers. Plaintiffs make money by selling entry tickets
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`and VIP services to patrons.
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`Defendant intended to harm plaintiffs by hindering them from selling tickets to their
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`customers, offering his own tickets, and profiting from doing so. Because of defendant’s conduct,
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`plaintiffs lost revenue from the tickets and services they could have sold. Plaintiffs were also
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`placed in the situation of deciding whether to honor the unauthorized tickets and lose revenue or
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`refuse the tickets and damage the HAKKASAN brand and reputation.
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`Plaintiffs have proven their intentional interference with prospective economic advantage
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`claim under Nevada law. Defendant failed to respond and show that a genuine issue of material
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`fact exists. Accordingly the court finds that plaintiffs are entitled to summary judgment as to this
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`claim.
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`J.
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`Plaintiffs’ motion for partial summary judgment
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`On October 14, 2014, the court ordered that defendant show cause as to why plaintiffs’
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`motion for partial summary judgment should not be granted. (Doc. # 39). The court ordered that
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`“[d]efendant shall file any documentation in opposition to [p]laintiffs’ motion within one week
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`from the date of this order.” (Doc. # 39).
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`Defendant has once again failed to respond and show why plaintiffs’ motion should not be
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`granted. Accordingly, the court will grant the motion.
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`IV. Conclusion
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`Accordingly,
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`IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiffs’ motion for
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`summary judgment, (doc. # 35), be, and the same hereby is, GRANTED.
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`IT IS FURTHER ORDERED that defendant Andrew Rockwell is permanently enjoined
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`(1) from using plaintiffs’ trademarks or confusingly similar variations thereof, alone or in
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`combination with any other letters, words, letter strings, phrases, or designs, in commerce or in
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`connection with any business or for any other purpose (including, but not limited to, on web sites
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`and in domain names); and (2) from registering, owning, leasing, selling, or trafficking in any
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`domain name containing plaintiffs’ trademarks or confusingly similar variations thereof, alone or
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`in combination with any other letters, words, phrases, or designs.
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`IT IS FURTHER ORDERED that plaintiffs’ motion for partial summary judgment, (doc.
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`# 34), be, and the same hereby is, GRANTED.
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`IT IS FURTHER ORDERED that the clerk of the court enter judgment in favor of plaintiffs
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`and close the case.
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`JAMES C. MAHAN
`UNITED STATES DISTRICT JUDGE
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`DATED THIS 27th day of October 2014.
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