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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`POWERWAND INC. ,
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`Plaintiff,
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`v.
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`CASE NO. 2:22-cv-01413-JHC
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`ORDER GRANTING MOTION FOR
`DEFAULT JUDGMENT
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`HEFAI NENIANG TRADING CO., LTD.
`and TAO HAN,
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`Defendants.
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`I
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`INTRODUCTION
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`This matter comes before the Court on Plaintiff Powerwand Inc.’s Motion for Default
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`Judgment against Defendants Hefai Neniang Trading Co., Ltd. and Tao Han. Dkt. # 14. The
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`motion is unopposed. See generally Dkt. The Court has considered the motion, the record, and
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`the applicable law. Being fully advised, the Court GRANTS the motion.
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`II
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`BACKGROUND
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`Powerwand is a Texas-based corporation that designs and sells custom apparel. Dkt. # 1
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`at 2–4. Powerwand owns exclusive rights to various intellectual property, including copyright
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 1
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 2 of 14
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`protection for 19 original photographs and trademark registration for the “INAKA” family of
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`brands. Id. at 5, 11. Defendant Hefai Neniang Trading is a Chinese corporation and retailer with
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`an ecommerce storefront on Amazon.com (Amazon). Id. at 2. Defendant Tao Han is the legal
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`representative and sole shareholder of Hefai Neniang Trading. Id.
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`In February and May 2022, Powerwand shared photos on social media to promote the
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`launch of its new apparel and designs. Id. at 4. Soon after, Defendants listed and began offering
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`nine new shorts products on their Amazon storefront. Id. Defendants’ offerings incorporated
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`Powerwand’s trademarked designs, referenced “Inaka” in the listing titles, and included identical
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`images to the product photos from Powerwand’s social media sites. Id. at 4–5.
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`On September 17, 2022, Powerwand filed 25 notices through Amazon’s online Digital
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`Millennium Copyright Act (DMCA) complaint process, requesting that Amazon remove 25 of
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`Defendants’ product listings for displaying Powerwand’s copyrighted and trademarked material
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`without authorization. Id. at 5. Amazon took down the challenged listings the next day. Id. at 6.
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`Defendants responded to the takedown notices by filing 25 counter-notifications with Amazon’s
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`DMCA system. Id. Powerwand received notice of the counter-notifications from Amazon on
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`September 20, 2022 and filed this action on October 4, 2022. Id.
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`Powerwand served Defendants by email in January 2023 after the Court granted leave to
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`serve process by alternative means. Dkt. ## 10, 11. The Clerk entered an Order of Default
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`against Defendants in May 2023. Dkt. # 13. Powerwand then filed the motion at issue, seeking
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`default judgment, monetary damages, and permanent injunctive relief. Dkt. # 14.
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 2
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 3 of 14
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`A.
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`Legal Standards
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`III
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`DISCUSSION
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`If a defendant fails to plead or otherwise defend, the clerk enters the party’s default. Fed.
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`R. Civ. P. 55(a). Then, upon a plaintiff’s request or motion, the court may grant default
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`judgment for the plaintiff. Fed. R. Civ. P. 55(b)(2); see Aldabe v. Aldabe, 616 F.2d 1089, 1092
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`(9th Cir. 1980). On default judgment motions, “[t]he court must accept all well-pled allegations
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`of the complaint as established fact, except allegations related to the amount of damages.” UN4
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`Prods., Inc. v. Primozich, 372 F. Supp. 3d 1129, 1133 (W.D. Wash. 2019) (citing TeleVideo Sys.,
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`Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987)). Courts typically consider these seven
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`“Eitel” factors when evaluating a request for a default judgment:
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`(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s
`substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at
`stake in the action; (5) the possibility of a dispute concerning material facts; (6)
`whether the default was due to excusable neglect, and (7) the strong policy
`underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
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`Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). Because default judgments are
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`generally disfavored, “default judgment is appropriate only if the well-pleaded factual allegations
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`of the complaint suffice to establish a plaintiff’s entitlement to a judgment under the applicable
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`law.” Dentist Ins. Co. v. Luke St. Marie Valley Dental Grp., P.L.L.C., No. 2:21-cv-01229-JHC,
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`2022 WL 1984124, at *2 (W.D. Wash. Jun. 6, 2022) (citing DIRECTV, Inc. v. Hoa Huynh, 503
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`F.3d 847, 855 (9th Cir. 2007)).
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`B.
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`Application of Eitel Factors
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`All seven Eitel factors support Powerwand’s motion. Default judgment is therefore an
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`appropriate remedy in this case.
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 3
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 4 of 14
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`1.
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`Prejudice to Plaintiff
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`“[P]rejudice exists where the plaintiff has no recourse for recovery other than default
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`judgment.” Curtis v. Illumination Arts, Inc., 33 F. Supp. 3d 1200, 1211 (W.D. Wash. 2014)
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`(citation and internal quotation marks omitted). As Defendants have failed to respond to this
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`action, default judgment is Powerwand’s only means for recovery. See Eve Nevada, LLC v.
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`Derbyshire, No. 21-0251-LK, 2022 WL 279030, at *3 (W.D. Wash. Jan. 31, 2022) (first Eitel
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`factor favors entry of default judgment when the defendant “failed to respond or otherwise put
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`forth a defense”). Thus, this factor supports default judgment.
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`2.
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`Merits of Plaintiff’s claims and sufficiency of complaint
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`“Courts often consider the second and third Eitel factors together.” Developers Sur. and
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`Indem. Co. v. View Point Builders, Inc., No. C20-0221JLR, 2020 WL 3303046, at *5 (W.D.
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`Wash. Jun. 17, 2022). As noted above, for the purpose of this motion, the Court must accept all
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`well-pleaded allegations in the complaint as true. See UN4 Prods, 372 F. Supp. 3d at 1133.
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`Accepting such allegations, the Court finds that the second and third Eitel factors support default
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`judgment for all five claims.
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`(a)
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`Direct copyright infringement (claim one)
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`Powerwand alleges that Defendants engaged in direct and willful copyright infringement
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`in violation of the Copyright Act. Dkt. # 14 at 4. To establish a claim for direct copyright
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`infringement, a plaintiff must 1) “show ownership of the allegedly infringed material” and 2)
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`“demonstrate that the alleged infringers violate at least one exclusive right granted to copyright
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`holders under 17 U.S.C. § 106.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th
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`Cir. 2001). To prove that a defendant engaged in willful copyright infringement, “the plaintiff
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`must show (1) that the defendant was actually aware of the infringing activity, or (2) that the
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`defendant’s actions were the result of ‘reckless disregard’ for, or ‘willful blindness’ to, the
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 4
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 5 of 14
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`copyright holder’s rights.” Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 936, 944
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`(9th Cir. 2011) (quoting Island Software & Comput. Serv., Inc. v. Microsoft Corp., 413 F.3d 257,
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`263 (2d Cir. 2005)). If an infringer makes no attempt to inquire into whether the item was
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`subject to copyright protection, the infringer may be found to have acted with reckless disregard
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`or willful blindness. See Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 991 (9th Cir.
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`2017).
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`The allegations in the complaint, if taken as true, support Powerwand’s copyright
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`infringement claim. Powerwand produced the 19 original photographs at issue and later secured
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`U.S. Copyright Registrations for all 19 images. Dkt. ## 1 at 7, 15 at 32–39. As the copyright
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`owner, Powerwand possesses exclusive rights under 17 U.S.C. § 106 to display, reproduce, and
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`distribute these images. Dkt. # 1 at 7. By using Powerwand’s copyrighted works without
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`authorization, Defendants violated Powerwand’s exclusive rights under 17 U.S.C. § 106.
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`Defendants thus directly and willfully infringed on Powerwand’s copyrights under 17 U.S.C. §
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`501. See Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008)
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`(allegation of willfulness deemed admitted on default); Dkt. # 1 at 9.
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`(b)
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`Abuse of DMCA counter-notifications (claim two)
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`Under 17 U.S.C. § 512(f), “[a]ny person who knowingly materially misrepresents under
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`this section (1) that material or activity is infringing, or (2) that material or activity was removed
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`or disabled by mistake or misidentification, shall be liable for any damages.” Defendants filed
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`counter-notifications with Amazon stating that “[they had] a good faith belief that the material
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`. . . was removed or disabled as a result of mistake or misidentification.” Dkt. # 1 at 13.
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`Accepting Powerwand’s allegations as true, Defendants’ counter-notifications contained
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`materially false information. Id. Defendants thus violated 17 U.S.C. § 512(f) by “knowingly
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 5
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 6 of 14
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`materially misrepresent[ing]” that “material or activity was removed or disabled by mistake or
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`misidentification.”
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`(c)
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`Trademark infringement and false designation of origin and unfair
`competition under the Lanham Act (claims three and four)
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`To establish a trademark infringement claim under 15 U.S.C. § 1114, Powerwand must
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`show that Defendants used:
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`(1) a reproduction, counterfeit, copy or colorable imitation of plaintiff’s registered
`trademark, (2) without its consent, (3) in commerce, (4) in connection with the
`sale, offering for sale, distribution or advertising of any goods, (5) where such use
`is likely to cause confusion, or to cause a mistake or to deceive.
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`Amazon.com v. Kurth, No. 2:18-CV-00353-RAJ, 2019 WL 3426064, at *2 (W.D. Wash. July 30,
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`2019) (citing 15 U.S.C. § 1114(a)). To establish a false designation of origin and unfair
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`competition claim under 15 U.S.C. § 1125(a), Powerwand must show that Defendants “(1)
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`use[d] in commerce (2) any word, false designation of origin, false or misleading description, or
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`representation of fact, which (3) is likely to cause confusion or misrepresents the characteristics
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`of his or another person’s goods or services.” Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902
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`(9th Cir. 2007). “The test for likelihood of confusion is whether a ‘reasonably prudent
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`consumer’ in the marketplace is likely to be confused as to the origin of the good or service
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`bearing one of the marks.” Dreamwerks Prod. Grp., Inc. v. SKG Studio, 142 F.3d 1127, 1129
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`(9th Cir. 1998). “Because counterfeit marks are, by design, ‘inherently confusing, . . . if the
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`plaintiff presents evidence demonstrating an allegedly infringing mark is counterfeit, then a
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`strong likelihood of confusion is established.” Coach, Inc. v. Pegasus Theater Shops, No. C12-
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`1631-MJP, 2013 WL 5406220, at *3 (W.D. Wash. Sept. 25, 2013) (quoting Gucci Am., Inc. v.
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`Duty Free Apparel, Ltd., 286 F. Supp. 2d 284, 287 (S.D.N.Y. 2003)).
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`Accepting Powerwand’s allegations as true, Defendants engaged in trademark
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`infringement and false designation of origin and unfair competition in violation of the Lanham
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 6
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 7 of 14
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`Act. Defendants used reproductions of Powerwand’s registered trademarks, without consent, to
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`list and offer products in commerce on its Amazon storefront. Dkt. # 1 at 14–15. Defendants
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`also incorporated Powerwand’s distinctive, but not previously registered, marks into their
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`product listings on Amazon. Id. Since the images and titles used in Defendants’ listings are
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`identical to photos and marks that Powerwand owns and uses, a reasonably prudent consumer
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`would likely confuse Defendants’ offerings with Powerwand’s products. Id. Powerwand has
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`thus established trademark infringement under 15 U.S.C. § 1114(a) and 15 U.S.C. § 1125(a).1
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`(d) Unfair competition under the Washington Consumer Protection Act (CPA)
`(claim five)
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`“To prevail on a CPA action, the plaintiff must prove an ‘(1) unfair or deceptive act or
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`practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in
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`his or her business or property; (5) causation.’” Klem v. Washington Mut. Bank, 176 Wash. 2d
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`771, 782, 295 P.3d 1179 (2013) (quoting Hangman Ridge Training Stables, Inc. v. Safeco Title
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`Ins. Co., 105 Wash. 2d 778, 780, 719 P.2d 531 (1986)); see also RCW 19.86.020. “Absent
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`unusual circumstances, the analysis of a CPA claim will follow that of the [federal] trademark
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`infringement and unfair competition claims; it will turn on the likelihood of confusion regarding
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`a protectable mark.” Safeworks, LLC, 717 F. Supp. 2d at 1192.
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`Because the analysis for a CPA claim typically tracks that for a federal trademark
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`claim—discussed above—and there do not appear to be unusual circumstances dictating a
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`1 The complaint describes the cause of action as “common law trademark infringement,” but the
`motion describes it as a claim for a Lanham Act violation. The tests for each do not meaningfully differ.
`See Safecover Roofing, LLC v. Pro-Cover Roofing, Inc., No. 3:20-cv-06212-RJB, 2021 WL 1313070, at
`*1 (W.D. Wash. Apr. 8, 2021) (“The test for trademark infringement under state, federal, and common
`law is whether there will be a likelihood of confusion.” (quoting M2 Software, Inc. v. Madacy Ent., 421
`F.3d 1073, 1080 (9th Cir. 2005)); see also Safeworks, LLC v. Teupen Am., LLC, 717 F.Supp. 2d 1181,
`1192 (W.D. Wash. 2010) (“The elements necessary to establish a likelihood of confusion for common law
`and statutory unfair competition claims in Washington are the same as for federal trademark infringement
`and unfair competition.”).
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 7
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 8 of 14
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`different result, Plaintiff has stated a valid CPA claim. Defendants engaged in a deceptive act by
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`offering products that would likely mislead a “reasonable” consumer. Sw. Sunsites, Inc. v. Fed.
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`Trade Comm’n, 785 F.2d 1431, 1435 (9th Cir. 1986). Selling deceptive products also harms the
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`public interest and injures Powerwand’s business. See Amazon.com v. White, No. C20-1773-
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`JHC, 2022 WL 1641423, at *4 (W.D. Wash. May 24, 2022). Defendants’ actions therefore
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`satisfy the five-factor test for a CPA violation.
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`In sum, Powerwand’s claims have merit and sufficiency and thus satisfy the second and
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`third Eitel factors.
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`3.
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`Sum of money at stake
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`The fourth Eitel factor “considers whether the amount of money requested is proportional
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`to the harm caused.” Sun Life Assurance Co. of Canada v. Estate of Wheeler, No. C19-0364JLR,
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`2020 WL 433352, at *4 (W.D. Wash. Jan. 28, 2020). “When a plaintiff seeks only injunctive
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`relief and no monetary damages in its motion for default judgment, the fourth Eitel factor weighs
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`in favor of default judgment.” Padded Spaces LLC v. Weiss, No. C21-0751JLR, 2022 WL
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`2905887, at *5 (W.D. Wash. July 22, 2022) (citing PepsiCo, Inc., v. Cal. Security Cans, 238 F.
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`Supp. 2d 1172, 1177 (C.D. Cal. 2002). Because Powerwand seeks an injunction and recovery of
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`reasonable attorney fees for this action, there is direct proportionality. See generally Dkt. # 14.
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`This factor therefore supports default judgment.
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`4.
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`Possibility of dispute over material facts
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`There is no sign that the material facts are in dispute. And again, “[t]he general rule of
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`law is that upon default the factual allegations of the complaint, except those relating to
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`damages, will be taken as true.” Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir.
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 8
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 9 of 14
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`1977). Defendants did not appear, so the Clerk correctly entered default against them. See Dkt.
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`# 13.
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`5.
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`Probability that default was because of excusable neglect
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`The sixth Eitel factor assesses whether Defendants’ default for failure to appear was
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`because of excusable neglect. Bds. of Trs. of Inland Empire Elec. Workers Welfare Tr. v. Excel
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`Elec. Servs., Inc., No. 2:21-CV-00200-MKD, 2022 WL 1243663, at *4 (E.D. Wash. Apr. 26,
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`2022). Generally, courts do not find excusable neglect when defendants were properly served
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`with the complaint. See, e.g., Maersk Line v. Golden Harvest Alaska Seafood LLC, No. C20-
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`1140-JLR-MLP, 2020 WL 6083464, at *4 (W.D. Wash. Sept. 30, 2020), report and
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`recommendation adopted, No. C20-1140 JLR, 2020 WL 6077419 (W.D. Wash. Oct. 15,
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`2020). Powerwand established that it properly served Defendants by email in accordance with
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`the Court’s January 2023 order granting leave to serve process by alternative means. See Dkt.
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`## 10, 11. Consequently, this factor weighs in favor of default judgment.
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`6.
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`Policy favoring decision on the merits
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`Generally, cases “should be decided upon their merits whenever reasonably possible,” so
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`courts tend to disfavor default judgment on this factor. Eitel, 782 F.2d at 1472. But Defendants’
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`failure to appear or respond “makes a decision on the merits impractical, if not impossible.”
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`PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002); see also Empl.
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`Painters’ Trust v. Dahl Constr. Servs., Inc., No. C19-1541-RSM, 2020 WL 3639591 (W.D.
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`Wash. July 6, 2020) (explaining that when a defendant fails to appear, the policy favoring a
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`decision on the merits does not preclude the entry of default judgment). Thus, the seventh Eitel
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`factor does not preclude default judgment in this case.
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`In sum, all seven Eitel factors support granting Powerwand’s motion for default
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`judgment.
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 9
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`C.
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 10 of 14
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`Permanent Injunction
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`Plaintiff seeks a permanent injunction enjoining Defendants from:
`(1) offering to the public, marketing, selling, providing, or otherwise trafficking in
`apparel products branded with any of the Powerwand Trademarks (including
`Inaka, Inaka Power, and Inaka IP logos; (2) using any photographic materials
`belonging to Powerwand, including all photographs referenced herein and all
`digital versions thereof; and (3) engaging in any other violation of the DMCA,
`Copyright Act, Lanham Act, or any other federal or state law, that results in harm
`to Powerwand.
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`Dkt. # 1 at 19.
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`“15 U.S.C. § 1116(a) vests the district court with the ‘power to grant injunctions
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`according to principles of equity and upon such terms as the court may deem reasonable, to
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`prevent the violation of any right’ of the trademark owner.” Reno Air Racing Ass’n., Inc. v.
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`McCord, 452 F.3d 1126, 1137–38 (9th Cir. 2006). Granting a permanent injunction is “an act of
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`equitable discretion” and a court should apply “traditional equitable principles” in its analysis.
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`eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). Similarly, the CPA allows a party
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`to seek a permanent injunction to prevent further violations. See RCW 19.86.090. To receive a
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`permanent injunction, a plaintiff must show:
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`(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.
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`eBay Inc., 547 U.S. at 391.
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`Powerwand has satisfied the four eBay factors and thus is entitled to a permanent
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`injunction. For the trademark claims, plaintiffs are entitled to a presumption of irreparable harm
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`under the Lanham Act. See 15 U.S.C. § 1116(a). “Moreover, once infringement is shown,
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`irreparable injury is generally presumed in a trademark case.” T-Mobile USA, Inc. v. Terry, 862
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 10
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 11 of 14
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`F. Supp. 2d 1121, 1135 (W.D. Wash. 2012). With no evidence in the record rebutting such a
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`presumption, the Court therefore presumes irreparable injury to Powerwand. See generally Dkt.
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`As for the copyright claims, there is no presumption of irreparable injury. See Perfect 10,
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`Inc. v. Google, Inc., 653 F.3d 976, 980–81 (9th Cir. 2011). Rather, “the propriety of injunctive
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`relief in cases arising under the Copyright Act must be evaluated on a case-by-case basis in
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`accord with traditional equitable principles.” Id. Given the inherent connection between
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`Powerwand’s copyright and trademark infringement claims, however, a permanent injunction
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`here is warranted and accords with equitable principles. See Lions Gate Films Inc. v. Saleh, No.
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`2:14-CV-06033-ODW-AGR, 2016 WL 6822748, at *6 (C.D. Cal. Mar. 24, 2016) (“Plaintiff
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`would suffer irreparable injury in the absence of a permanent injunction because Defendants’
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`failure to appear suggests that they will continue to infringe on Plaintiff’s copyright, which will
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`erode Plaintiff’s ability to enforce its exclusive rights.”).
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`The second and third factors also support a permanent injunction. Remedies at law are
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`inadequate when future infringement of a party’s intellectual property rights is likely. See T-
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`Mobile, 862 F. Supp. 2d at 1133 (“Permanent injunctive relief is the only adequate remedy to
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`prevent the continued threat of infringement.”). The balance of hardships also favors injunctive
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`relief, as “illegal conduct does not merit significant equitable protection.” Disney Enterprises,
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`Inc. v. VidAngel, Inc., 869 F.3d 848, 867 (9th Cir. 2017). Further, rather than unduly burdening
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`Defendants, an injunction here would simply require Defendants to respect Powerwand’s
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`intellectual property rights in compliance with all relevant laws.
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`Finally, a permanent injunction serves the public interest by protecting the rights of
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`intellectual property owners and “protecting consumers from unwittingly purchasing counterfeit
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`products.” See Amazon.com, Inc. v. Sirowl Tech. Eyeglasses, No. 2:20-cv-01217-RSL-JRC 2022
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`WL 19000499, at *6 (W.D. Wash. Oct. 3, 2023); see also Internet Specialties W., Inc. v. Millon–
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 11
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 12 of 14
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`Di Giorgio Enters., Inc., 559 F.3d 985, 993 n.5 (9th Cir. 2009) (“The public has an interest in
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`avoiding confusion between two companies’ products.”). In sum, a permanent injunction is an
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`equitable and appropriate remedy in this case. The Court will issue a separate order outlining the
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`terms of the permanent injunction.
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`D.
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`Attorney Fees & Costs
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`Powerwand seeks an award of reasonable attorney fees and costs under 17 U.S.C.
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`§ 512(f) (for DMCA violations) and 15 U.S.C. § 1117(a) (for Lanham Act violations). Both
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`statutes provide for an award of reasonable attorney fees and costs if a violation has been
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`established. Violators of 17 U.S.C. § 512(f)
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`shall be liable for any damages, including costs and attorneys’ fees, incurred by
`the alleged infringer, by any copyright owner or copyright owner’s authorized
`licensee, or by a service provider, who is injured by such misrepresentation, as the
`result of the service provider relying upon such misrepresentation in removing or
`disabling access to the material or activity claimed to be infringing, or in
`replacing the removed material or ceasing to disable access to it.
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`Additionally, once a willful trademark violation has been established under the Lanham Act,
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`the plaintiff shall be entitled . . . subject to the principles of equity, to recover (1)
`defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of
`the action . . . The court in exceptional cases may award reasonable attorney fees
`to the prevailing party.
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`15 U.S.C. § 1117(a). When analyzing a request for fees under the Lanham Act, courts “should
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`examine the ‘totality of the circumstances’ to determine if the case was exceptional, exercising
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`equitable discretion in light of the nonexclusive factors identified in Octane Fitness.” SunEarth,
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`Inc. v. Sun Earth Solar Power Co. Ltd., 839 F.3d 1179, 1181 (9th Cir. 2016) (en banc) (per
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`curiam) (citation omitted). The factors to consider include “frivolousness, motivation, objective
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`unreasonableness (both in the factual and legal components of the case) and the need in
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`particular circumstances to advance considerations of compensation and deterrence.” Id.
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 12
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 13 of 14
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`(quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014) (citation
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`omitted)).
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`Powerwand is entitled to an award of reasonable attorney fees and costs under both 17
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`U.S.C. § 512(f) and 15 U.S.C. § 1117(a). Because of Defendants’ false statements and willful
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`misrepresentations to Amazon, Powerwand had to file this suit to prevent Amazon from
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`“replacing the removed material or ceasing to disable access to it.” 17 U.S.C. § 512(f).
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`Powerwand is therefore entitled to recover reasonable costs and attorneys’ fees incurred as a
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`result of Defendants’ DMCA violations.
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`This is also an “exceptional case” under 15 U.S.C. § 1117(a) and Octane Fitness.
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`Powerwand’s action is not frivolous (and indeed, appears to be very strong on the merits).
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`Plaintiff has substantive copyright and trademark infringement claims and initiated this action to
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`enforce its legitimate rights against Defendants in compliance with Amazon’s DMCA complaint
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`process. Dkt. # 1 at 6–7. An award of attorney fees and costs to Powerwand is also necessary to
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`advance considerations of compensation and deterrence given Defendants’ willful infringement
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`and subsequent failure to appear in this action. See Olson Kundig, Inc. v. 12th Avenue Iron, Inc.,
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`2023 WL 3269759, at *8 (W.D. Wash. May 5, 2023).
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`Powerwand is thus entitled to recover reasonable attorney fees and costs incurred in this
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`action When calculating reasonable attorney fees, this Court applies the lodestar method. Eat
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`Right Foods, Ltd v. Whole Foods Market Services, Inc., No. C13-2174RSM, 2015 WL
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`11233198, at *3 (W.D. Wash. Feb. 18, 2015). Under the lodestar method, the Court arrives at a
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`lodestar figure by multiplying the number of hours reasonably spent on the litigation by a
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`reasonable hourly rate. Id.; see also McGrath v. Co. of Nevada, 67 F.3d 248, 252 (9th Cir.
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`1995). After the lodestar figure is calculated, the Court may then adjust it up or down to account
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`for other relevant considerations. Blanchard v. Bergeron, 489 U.S. 87, 94 (1989).
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 13
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`Case 2:22-cv-01413-JHC Document 16 Filed 06/27/23 Page 14 of 14
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`Having considered the Pham Declaration, the Court accepts Powerwand’s request for $2,967 in
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`costs but rejects Powerwand’s request for $59,928.25 in attorney fees. See Dkt. # 15. While the
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`Court accepts the stated hourly rates, it does not accept the number of hours spent on this matter
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`and thus cannot accept Powerwand’s proposed lodestar figure. Given the nature of the case, the
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`lack of opposition to the motion, and the number of hours expended by attorneys in similar cases,
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`the Court finds it unreasonable to award Powerwand attorney fees for over 130 hours of billable
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`work. The Court will therefore reduce Powerwand’s requested hours and associated attorney fee
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`award by 25%. Powerwand is thus entitled to recover $44,946.19 in attorney fees and $2,967 in
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`costs. This results in a total award of $47,913.19 in costs and fees.
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`IV
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`CONCLUSION
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`For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Default
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`Judgment. Dkt. # 14. Powerwand is entitled to a permanent injunction and attorneys’ fees and
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`costs of $47,913.19. The terms of the injunction will be set forth in a separate order.
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`Dated this 27th day of June, 2023.
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`________________________
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`John H. Chun
`United States District Judge
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT - 14
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