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Otter Products, LLC v. Wang

United States District Court, D. Colorado

October 21, 2019

OTTER PRODUCTS, LLC, and TREEFROG DEVELOPMENTS, INC., Plaintiffs,
v.
EDDY WANG, and JOHN DOES 1-10, Defendants.

          ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR CONTEMPT

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiffs Otter Products, LLC and Treefrog Developments, Inc.'s Motion for Contempt (Doc. # 38). On June 21, 2019, the Court ordered Defendant Eddy Wang to show cause as to why he should not be held in contempt for violating the Court's Order granting Plaintiffs' Motion for Default Judgment and entering a Permanent Injunction (Doc. # 28) and why remedial and/or punitive sanctions should not be entered against him. (Doc. # 39.) Defendant responded to Plaintiffs' Motion for Contempt and the Court's Order on July 5, 2019. (Doc. # 40.) Plaintiffs replied to Defendant's Response. (Doc. # 41.) For the following reasons, the Court GRANTS IN PART Plaintiffs' Motion for Contempt.

         I. BACKGROUND

         The Court provided a thorough recitation of the factual and procedural background in this case in its Orders granting Plaintiffs' Motion for Default Judgment and Permanent Injunction (Doc. # 28) and denying Defendant's Motion to Set Aside Default Judgment and for Extension of Time to Respond to Complaint (Doc. # 42). Those Orders are incorporated herein by reference, and the facts will be repeated only to the extent necessary to address the instant Motion.

         On December 13, 2018, Plaintiffs filed their Complaint asserting various trademark infringement and unfair competition claims under 15 U.S.C. §§ 1114, 1125(1) and the common law (Doc. # 1 at 38-57.) Plaintiffs also requested a permanent injunction to prevent Defendant and his various agents from continuing to infringe upon Plaintiffs' trademarks. (Id. at 57-58.) Pursuant to Federal Rule of Civil Procedure 12, Defendant was required to answer or otherwise respond to Plaintiffs' Complaint by January 16, 2019. Fed.R.Civ.P. 12(a)(1)(A)(i). Defendant did not answer or respond.

         On January 31, 2019, Plaintiffs moved for entry of default by the Clerk of the Court (Doc. # 16), and on February 1, 2019, the Clerk entered a default (Doc. # 17). On March 14, 2019, Plaintiffs filed their Motion for Default Judgment and Permanent Injunction as to Defendant. (Doc. # 24.) Once again, Defendant failed to answer or respond to Plaintiffs' Complaint. On March 28, 2019, the Court issued its Order granting Plaintiffs' Motion for Default Judgment and Permanent Injunction (“Permanent Injunction”) (Doc. # 28), and, pursuant to that order, the Clerk entered that default judgment in favor of Plaintiffs and against Defendant (Doc. # 29).

         The Permanent Injunction provided:

[T]he Court issues a permanent injunction enjoining Wang and any of his employees, agents, servants, officers, representatives, directors, attorneys, successors, affiliates, assigns, any and all other entities owned or controlled by Want and all of those in active concert and participation with Wang (the “Enjoined Parties) as follows. The Enjoined Parties are:
a. Prohibited from advertising or selling all Otter Products or products bearing the Otter Trademarks through any Amazon storefront, including, but not limited to, the Amazon storefronts currently named “1to3shop-store” and “E&E Global;”
b. Prohibited from advertising or selling, via the Internet or otherwise, all Otter products or products bearing the Otter Trademarks;
c. Prohibited from using any of the Otter Trademarks in any manner, including advertising on the Internet;
d. Prohibited from importing, exporting, manufacturing, producing, distributing, circulating, selling, offering to sell, advertising, promoting, or displaying any and all Otter Products as well as any products bearing any of the Otter Trademarks;
e. Prohibited from disposing of, destroying, altering, moving, removing, concealing, or tampering with any records related to any products sold by them which contain the Otter Trademarks including: invoices, correspondence with vendors and distributors, bank records, account books, financial statements, purchase contracts, sales receipts, and any other records that would reflect the source of the products that Wang has sold bearing these trademarks;
f. Required to take all action to remove from the Enjoined Parties' websites or storefronts any reference to any of Otter Products, or any of the Otter Trademarks;
g. Required to take all action, including but not limited to, requesting Internet search engines (such as Google, Yahoo!, and Bing) to remove from the Internet any of the Otter Trademarks which associate Otter Products or the Otter Trademarks with the Enjoined Parties or the Enjoined Parties' websites or storefronts; and
h. Required to take all action to remove unauthorized Otter Trademarks from the Internet, including from Amazon.
Pursuant to Rule 65(d)(2) of the Federal Rules of Civil Procedure, this Order is binding upon the following persons who receive actual notice of it: the parties, the parties' officers, agents, servants, employees, and attorneys, and other persons who are in active concert or participation with the ...

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