Opinion
19-CV-3351 (VEC) (RWL)
04-11-2022
AQUAVIT PHARMACUETICALS, INC. Plaintiff, v. U-BIO MED, INC., GLOBAL MEDI PRODUCTS, and NYUN SHI EUM a/k/a NYON-SIK EUM, Defendants.
REPORT AND RECOMMENDATION TO HON. VALERIE E. CAPRONI: CONTEMPT (IV)
ROBERT W. LEHRBURGER, United States Magistrate Judge.
This is the fourth Report and Recommendation addressing contempt and sanctions for Defendants' violation of the modified preliminary injunction (“MPI”) that imposed restrictions on Defendants use of the mark AQUAGOLD as a brand for microinjection devices that deliver health and beauty products under the skin. The factual and procedural background of this case has been set forth in previous decisions finding Defendants in contempt of the MPI and imposing contempt sanctions. See, e.g., Aquavit Pharmaceuticals, Inc. v. U-Bio Med, Inc., No. 19-CV-3351, 2021 WL 3862054 (S.D.N.Y. August 30, 2021) (“Contempt III”) (imposing compensatory and coercive contempt sanctions on Defendants); Aquavit Pharmaceuticals, Inc. v. U-Bio Med, Inc., No. 19-CV-3351, Dkt. 180 (S.D.N.Y. August 11, 2020) (“Contempt II”) (defining scope of compensatory contempt sanctions, and requiring Defendants to discontinue violations); Aquavit Pharmaceuticals, Inc. v. U-Bio Med, Inc., No. 19-CV-3351, 2020 WL 1900502 (S.D.N.Y. April 17, 2020) (“Contempt I”) (finding Defendants in contempt); see also Aquavit Pharmaceuticals, Inc. v. U-Bio Med, Inc., No. 19-CV-3351, 2020 WL 832249 (S.D.N.Y. Feb. 19, 2020) (denying motion to dismiss); Dkt. 152 (R&R adopted as modified by Contempt I); Dkt. 272 (R&R adopted as modified by Contempt III).
The most recent decision and order addressing contempt sanctions was issued by Judge Caproni on August 30, 2021 in Contempt III. That order imposed compensatory sanctions, requiring Defendants to pay $265,248.00 in attorney's fees and $2,614.89 in costs and to file proof of payment no later than September 10, 2021. The Court warned that “[f]ailure to pay Plaintiff in a timely manner will result in additional sanctions.” Contempt III, 2021 WL 3862054 at *6. Defendants did not pay any of the imposed sanctions at any time, let alone by September 10, 2021.
The Court also gave Defendants “one last opportunity” to cure four ongoing violations of the MPI; namely, Defendants' (1) use of a screenshot from the Kim Kardashian video; (2) display of Plaintiff's South Korean AQUAGOLD mark on package instructions shown on one of Defendants' Instagram pages; (3) failure to add required disclaimers to Defendants' YouTube channel and videos; and (4) failure to remove a defamatory news video from Defendants' website. Id. In the event that Defendants did not cure those four violations by 5:00 p.m. September 3, 2021, “they must pay the Clerk of Court $3,000 for each day that any of the specified violations continue” and “every seven days, the [d]aily [c]oercive [s]anction will increase by $500.” Id. Finally, the August 30, 2021 order required the parties to file a joint letter indicating their respective positions as to whether Defendants had ceased all violations of the MPI. Id.
Between September 6 and 13, 2021, the parties filed several submissions regarding Defendants' alleged failures to cure the remaining violations, as well as alleged new violations, of the MPI. (See Dkt. 299, 309, 310, 311.) Those filings raised the following issues: (a) Defendants' alleged failures to cure the four MPI violations by September 3, 2021 as required by Contempt III; (b) Defendants' alleged continuing failure to cure other violations; (c) Defendants' alleged new violations of the MPI; and (d) the amount of any coercive sanctions or other relief warranted as a result. On September 16, 2021, the Court invited the parties to supplement their submissions to enable the Court to address those issues. (Dkt. 315.) The parties did so. (See Dkt. 320, 329, 334.) This Report and Recommendation now addresses those issues.
I. Defendants' Failure To Cure Four Violations By September 3, 2021
Plaintiffs contend that Defendants failed to cure two of the four continuing violations that the Court required be cured by September 3, 2021. Plaintiffs acknowledge that Defendants cured the violations related to the Kim Kardashian screenshot and Defendants' Korean AQUAGOLD mark on product instructions shown on an Instagram account. According to Plaintiffs, however, Defendants did not add the required disclaimers on their YouTube videos in a timely manner and did not sufficiently remove the defamatory news video.
A. Untimely Addition Of Disclaimers To YouTube Videos
The Contempt III order gave Defendants “one last opportunity” to add disclaimers to video postings appearing on Defendants' UBiomed-INC YouTube channel by 5:00 p.m. September 3, 2021. Contempt III, 2021 WL 3862054 at *6. On September 6, 2021, the parties filed a joint status report indicating that Defendants had not fully complied with that requirement for at least five of twelve videos. (See Dkts. 299 at 3; Dkt. 299-1 ¶ 4 and Exs. 1-5.) Defendant asked for one more day to fully remedy the issue. (Dkt. 299 at 3.) As of September 11, 2021, however, Defendants had not done so with respect to one of the videos. (Dkt. 334 at 1 (identifying only one remaining non-complying video).)
No proof has been presented that the one uncured You Tube video violation had not been cured after September 11, 2021. Moreover, Plaintiff's calculation of coercive sanctions below does not include sanctions for any uncured You Tube video violation beyond September 11, 2021. Accordingly, for the instant application, the Court deems no YouTube video violation to have remain uncured after that date.
As an excuse for tardy compliance, Defendants claimed that “they did not fully appreciate the specifics of the issue, ” believing “that need for a disclaimer was only because of the note that had appeared at the bottom of the main page that included, as noted by the Court, the phrase ‘Aquagold fine touch' in a very small font and placed among other words.” (Dkt. 329 at 1.) According to Defendants, the captions for the five videos that had not been cured “had their own inconspicuous note that included the words ‘Aquagold fine touch,' but likewise in a very small font and placed among other words rendering them barely noticeable.” (Dkt. 329 at 1.) In fact, the references to “Aquagold fine touch” were seen only after clicking on “show more.” (Dkt. 329 at 1.) The Contempt III order, however, made no distinction between curing absence of disclaimers on the main YouTube page and their absence in captions for the individual videos, even if seen only after clicking on “show more.” Defendants' purported failure to “appreciate the specifics of the issue” is particularly disingenuous given that Plaintiff previously had identified the exact location where “Aquagold fine touch” appeared, after clicking “show more, ” but lacked a disclaimer. (See Dkt. 247 at 3 (citing to screen shots found at Dkt. 214, Exs. 69-71).)
Defendants thus have no reasonable excuse for failing to fully comply. Their explanation is another example among several instances of failing to demonstrate diligence in curing violations and offering flimsy excuses for failing to do so. See Contempt I, 2020 WL 1900502 at *6-9 (finding Defendants offered excuses for their multiple violations that were “specious, ” “lack[ing] credibility and “unreasonable”); see also id. at *8-10 (finding Defendants' lack of due diligence to be “glaring, ” “egregious, ” and “willful”); id. at *10 ([finding that Defendants “proffered risible interpretations of the MPI as a defense or justification”). The violation - belated cure of five captions where the relevant mark is seen only after clicking “show more” - is relatively minor compared to other transgressions, but it nevertheless is contemptuous. The Contempt II order was clear and unambiguous; the proof of noncompliance is clear and convincing; and Defendants did not diligently attempt to comply in a reasonable manner. See CBS Broadcasting Inc. v. FilmOn.com, Inc., 814 F.3d 91, 98 (2d Cir. 2016) (stating requirements for contempt sanctions). In a vacuum, Defendants' efforts might be seen as reasonable but not in context of having been on notice of the specific location, not in the context of having previously been found in contempt and insufficiently diligent, and not in the context of having been given “one last opportunity” to cure.
B. Disparaging News Video
The Contempt III order also gave Defendants “one last opportunity” to remove a disparaging news video from Defendants' website. Contempt II, 2021 WL 3862054 at *6. The news video depicts Defendants being interviewed and claiming that Aquavit stole their technology (See Dkt. 176 at 8 & Exs. 32-34 (depicting video on Defendants' Instagram account)) and was addressed in this Court's Report and Recommendation dated July 16, 2021 (the “July 16, 2021 R&R”). (Dkt. 272 at 59.) As determined there, the news video violated the MPI's prohibitions against Defendants' sale or promotion of their lawful products accompanied by disparagement of Plaintiff's products as inferior or counterfeit. (Dkt. 272 at 59.; see MPI ¶ 1(P).)
Defendants removed the video (Dkt. 320 at 2), but nonetheless retained various captions and a snapshot from the video on their webpages that continue to portray Plaintiff as having “stole[n]” Defendants' technology. (See Dkt 320 2-3 (citing relevant exhibits).) Even worse, Defendants posted a “replacement video” that is the same as the former video, except for certain changes to captions that, according to Defendants, “do not identify Plaintiff as being involved.” (Dkt. 329 at 1.) That argument falls flat, however, for the very reason, as just mentioned, that the captions on Defendants' websites together identify Plaintiff as the company purportedly engaged in theft of Defendants' technology. Most notably, the “News” section of Defendants' webpage, ubiomed.co, kr, shows a snapshot of the video with a summary indicating that Plaintiff is the company and the product is AQUAGOLD. (Dkt. 335 ¶ 8 and Exs. 6, 6a (referring to “the truth” about Aquavit and AQUAGOLD).)
Once again, Defendants offer specious arguments to avoid the strictures placed on them. Defendants assert that the MPI restriction applies only to “sale or promotion” of Defendants' products and that the “replacement video ... is not a sale of Defendants' products.” (Dkt. 329 at 2.) That is the exact same argument the Court previously rejected, having found that the News section of Defendants' website is a component of the website that is designed to promote and sell Defendants' products. See Contempt I, 2020 WL 1900502 at *8 (rejecting as “neither a good faith nor reasonable interpretation of their obligations, ” Defendants' argument that the News section of their website was “not being used to promote or advertise or sell defendants' products”).
Defendants next argue that the news video does not violate the MPI because it does not compare Defendants' device with Plaintiff's device, which is obscured by blurring, and does not mention Plaintiff but instead refers to Company A and Company B. (See Dkt. 329 at 2.) That argument does not stand up to scrutiny. The video continues to depict the same side-by-side product comparison (Dkt. 335, Ex. 2 at ECF 6); the captions underneath the video refer to “counterfeit” and “counterfeits” (Dkt. 335, Exs. 15); and Defendants' website expressly identifies Aquavit and AQUAGOLD as the relevant company and product (Dkt. 335, Exs. 6, 6a). Even absent that express identification on Defendants' website, the only reasonable inference to be drawn from what remains on the video and its captioning is that Plaintiff is the allegedly offending Company A. Simply modifying the video to refer to Plaintiff as “Company A” hardly complies with the directive to remove the offending video.
Additionally, Defendants glibly distinguish between “disparaging” conduct, which is barred by the MPI, and “defamatory” conduct, which they suggest is not barred. (Dkt. 329 at 2-3.) Defendants then contend that the video's references to counterfeit products is accurate based on sales of AQUAGOLD products not made by Defendants in Europe and other places where Defendants have a registered trademark. (Dkt. 329 at 3.) That is a strawman argument. Whether or not some other entity sold counterfeit product in Europe, and regardless of whether Defendants' portrayal of Plaintiff's product as counterfeit is “defamatory, ” it is indisputably disparaging of Plaintiff's product, which the MPI expressly forbids. See Cortes v. Twenty-First Century Fox America, Inc., 285 F.Supp.3d 629, 637 (S.D.N.Y. 2018) (quoting Black's Law Dictionary definition of “disparage” as “[t]o unjustly discredit or detract from the reputation of (another's property, product, or business)” and “disparagement” as “[a] false and injurious statement that discredits or detracts from the reputation of another's property, product, or business”); Merriam Webster (merriam-webster.com/dictionary/disparaging) (defining disparaging as “meant to belittle the value or importance of someone or something”). Defendants further argue that the video does not fall within the MPI restriction because the “inferior or counterfeit” means “low quality” and “counterfeit is not being used as a reference to quality.” (Dkt. 329 at 3.) That contention conflates the MPI's prohibition on disparaging Plaintiff's devices as “inferior or counterfeit.” (MPI, Dkt. 65 ¶ 1(P).) (emphasis added). Reference to both terms in the alternative clearly distinguishes one from the other.
Defendants' sophistry is yet another instance of their attempt to claim compliance with the MPI while continuing to transgress it - and the orders of this Court. Once again, Defendants have not complied with their “one last opportunity” to comply. The Court ordered Defendants to remove the news video. Instead of doing so, Defendants merely replaced it with the same video doctored with slight but inconsequential modifications. Defendants thus are in contempt for failing to diligently comply with the Court's clear and unambiguous orders given in both Contempt II and Contempt III.
Defendants' conduct with respect to the news video constitutes both failure to comply with the Court's directive to cure by September 3, 2011 as required by Contempt III, and a continuing failure to cure a contempt violation found in Contempt I.
II. New Violations Of The MPI
Plaintiff alleges that Defendants have engaged in new violations of the MPI not previously raised with the Court. They include (1) Defendants' use of images confusingly similar to Plaintiff's South Korean figurative mark; and (2) additional failures to comply with the MPI's disclaimer requirements.
In its list of new violations of the MPI, Plaintiff also refers back to the news video and captions discussed above. (Dkt. 320 at 8.) As those already have been addressed, they need not be addressed again. Plaintiff also says that it is “still investigating sales and marketing activity of Defendants' devices in the United States.” (Dkt. 320 at 9.) The Court will not address that issue further here as it is not ripe for consideration.
A. South Korean Mark
In the July 16, 2021 R&R, which was adopted in relevant part in Contempt III, this Court determined that Defendants failure to cure its use of an image including “AQUAGOLD fine touch” constituted ongoing contempt. (Dkt. 272 at 58.) The example at issue was an image from Defendants' Instagram page depicting the box and instruction booklet for Defendants' product. (Dkt. 272 at 57.) Both the box and booklet depicted Defendants' Korean trademark, “AQUAGOLD Your Time Is Now fine touch.” The cover of the booklet, however, depicted a leaning vial of liquid featuring the phrase “Aquagold fine touch, ” in relatively tiny print. (Dkt. 272 at 57, see Dkt. 214 ¶ 34 & Ex. 68.) The exact image shown - the leaning vial with “Aquagold fine touch” - is virtually identical, if not identical, to what is depicted in the registration for Aquavit's figurative mark in South Korea. (See Compl. Ex. 6.)
That use violated the MPI, which prohibits Defendants use of the mark “AQUAGOLD” in connection with marketing any goods and services, and applies extraterritorially to all countries in which Plaintiff provides AQUAGOLD devices for sale. (MPI at 5.) This Court rejected Defendants' argument that Aquavit had to raise its concerns in South Korea because the mark at issue on the instruction booklet is Aquavit's South Korean trademark. (Dkt. 272 at 57.) As the Court explained:
the [MPI] only allows Defendants to use an AQUAGOLD mark on products sold in the countries where Defendants are the legal owners of the mark. Defendants have not argued that they legally own the Korean mark for “AQUAGOLD fine touch.” Rather, Defendants focus on Aquavit's having referred to its South Korean mark as a “figurative” mark and argue that the [MPI] does not apply to figurative marks. That argument overlooks the fact that regardless of what kind of mark it is, the instructions display the mark “AQUAGOLD fine touch, ” which is owned by Aquavit in both the United States [AQUAGOLD being a registered trademark, and “fine touch” grounded in common law trademark rights] and South Korea and is subject to extraterritorial proscriptions of the [MPI].(Dkt. 272 at 58.)
Plaintiff contends that Defendants did not cure the violation just described. (Dkt. 320 at 6-7.) The two images cited by Plaintiff, however, are not the same. (Compare Dkt. 299, Ex. 13 with Dkt. 335, Ex. 7.) That said, Plaintiff does cite to several new instances of the same offending image that was addressed by the July 16, 2021 R&R and Contempt III. (See Dkt. 320 (describing examples and identifying specific exhibits).) Those images violate the MPI for the same reasons as did the example discussed above, and the arguments raised by Defendants in opposition simply parrot those previously rejected by the Court. (See Dkt. 334 at 4.)
Accordingly, Defendants' repeated depictions of the “Aquagold fine touch” vial image in connection with the promotion and sale of its products violate the MPI's prohibitions and constitute contempt.
B. New Disclaimer Violations
The MPI requires that Defendants include a disclaimer in conjunction with any AQUAGOLD products sold by them in countries where they have AQUAGOLD trademark registrations. The disclaimer must appear on both the packaging and product instructions in English, Korean, and the native language of the country in which rights are held, and it must indicate that Defendants' AQUAGOLD micro-injection products are manufactured by a different company than the company that designs and makes AQUAGOLD devices sold in the United States and South Korea. (MPI § 1(P).)
Defendants already have been found in contempt of this provision. See Contempt I, 2020 WL 1900502 at *6-7; Contempt III, 2021 WL 3862054 at *3. With respect to the instant application, Plaintiff has identified multiple additional violations of the disclaimer requirement. (See Dkt. 299, Exs. 7-8, 18-23.) Consistent with their past reactive, less-than-diligent approach, Defendants remedied some of these violations only after Plaintiff brought them to the Court's attention but failed to cure others. (See Dkt. 320 at 8 (recognizing that Defendants removed or modified certain postings or ads, while identifying instances that Defendants did not cure).)
As an excuse, Defendants assert that the postings at issue do in fact include the disclaimer, albeit only in the comments section where the user must scroll down to see the disclaimer. (Dkt. 329 at 5; see Dkt. 321 Exs. 13-14.) Defendants claim that they attempted to edit “the header of the main page to refer to the presence of the disclaimers” but were “denied access to that section, perhaps due to Plaintiff's complaints to Instagram.” (Dkt. 329 at 5.) Both parts of that excuse are lacking. First, the Court previously has found contempt where the disclaimer could be discovered only after a user interacts with the immediately visible content. Contempt I, 2020 WL 1900502 at *7. Second, Defendants have not provided any support (such as an affidavit) for their statement that they were denied access to “the header of the main page”; nor have they provided any reason why they could not cure the violations without accessing the “header” as opposed to some other portion of the main page or by taking some other action such as removing offending content.
The Court finds Defendants' violations of the Court's clear and unambiguous orders and vapid excuses all too consistent with their earlier efforts: “half-hearted at best, and purposeful, intentional and willful at worst.” Contempt I, 2020 WL 1900502 at *7.
III. Violation Of Failure To Pay Compensatory Sanctions
Contempt III required Defendants to pay Plaintiff compensatory sanctions consisting of $265,248.00 in attorney's fees and $2,614.89 in costs. The order required Defendants to file proof of payment no later than Friday, September 10, 2021. The order warned: “Failure to pay Plaintiff in a timely manner will result in additional sanctions.” To date, no proof of payment appears in the record. Accordingly, additional sanctions are warranted.
IV. Coercive Sanctions
Contempt III imposed coercive sanctions in connection with four ongoing violations of the MPI and the Court's orders. The order warned: “If Defendants do not cure those four violations by 5:00 p.m., EST, Friday, September 3, 2021, they must pay the Clerk of Court $3,000 for each day that any of the specified violations continue.” The order further directed that the daily coercive sanction would increase by $500 every seven days. Contempt III, 2021 WL 3862054 at *6.
As set forth above, Defendants timely cured two of the four continuing violations. The YouTube videos violation was not cured until at least September 11, 2021, thus warranting eight days of coercive sanctions. The defamatory news video remains uncured and therefore continues to incur coercive sanctions. Plaintiff compiled a chart of the coercive sanctions imposed through November 2, 2021 as follows:
| Period | Dkt. 296 MPI Violation(s) | Coercive Fine/Day | Total Coercive Fine |
| 9/3/2021- 9/9/2021 | YouTube videos lacking disclaimers (see Dkt. 299, Exs. 1-5); Defamatory content news video and snapshot/captions | $3,000 | $21,000 |
| 9/10/2021- 9/16/2021 | YouTube video lacking disclaimer (through 9/11/2021); Defamatory content news video and snapshot/captions | $3,500 | $24,500 |
| 9/17/2021- 9/23/2021 | Defamatory content news video and snapshot/captions | $4,000 | $28,000 |
| 9/24/2021- 9/30/2021 | Defamatory content news video and snapshot/captions | $4,500 | $31,500 |
| 10/1/2021- 10/7/2021 | Defamatory content news video and snapshot/captions | $5,000 | $35,000 |
| 10/8/2021- 10/14/2021 | Defamatory content news video and snapshot/captions | $5,500 | $38,500 |
| 10/15/2021- 10/21/2021 | Defamatory content news video and snapshot/captions | $6,000 | $42,000 |
| 10/22/2021- 10/28/2021 | Defamatory content news video and snapshot/captions | $6,500 | $45,500 |
| 10/29/2021- 11/2/2021 | Defamatory content news video and snapshot/captions | $7,000 | $35,000 |
| Total | $301,000 |
The Court finds the chart to be accurate. Accordingly, through November 2, 2021, Defendants incurred $301,000 in coercive sanctions. Additional sanctions have accumulated since then in an amount that can be determined at a later time.
In addition to the coercive sanctions already imposed, Plaintiff asserts that Defendants should also be subject to coercive sanctions for any new violations of the MPI occurring after September 3, 2021 (being the last deadline for compliance with respect to earlier violations). The analysis previously applied by this Court in evaluating coercive sanctions remains essentially the same here. (See July 16, 2021 R&R at 59-61.) See generally Dole Fresh Fruit Co. v. United Banana Co., Inc., 821 F.2d 106, 110 (2d Cir. 1987) (to determine whether and to what extent coercive sanctions should be imposed, the Court considers “(1) the character and magnitude of the harm threatened by the continued contumacy; (2) the probable effectiveness of any suggested sanction in bringing about compliance; and (3) the contemnor's financial resources and the consequent seriousness of the burden of the sanction upon him”).
As before, the character and magnitude of the harm is relatively modest with respect to most of the violations, the exception being the news video and related captions, which disparage Plaintiff's products and therefore pose a greater threat of harm. And, as before, information about Defendants' finances is slim, while Defendants' inconsistent, incomplete, and reactive efforts to comply suggest that coercive sanctions could be effective in spurring the Defendants to be more thorough, diligent, and circumspect. That said, there is a difference at this juncture. Defendants already have failed to pay the compensatory sanctions awarded to Plaintiff and have not been deterred by earlier imposition of coercive sanctions. The Court thus has less confidence that additional monetary sanctions will have the necessary coercive effect.
At the same time, the Court has few to no options for alternative coercive sanctions other than perhaps granting judgment in favor of Plaintiff in the event Defendant fails to fully comply by a date certain. Before considering that option, however, the Court deems it appropriate to impose coercive sanctions for the additional violations set forth above with the purpose that further accumulation of monetary sanctions may motivate Defendants to fully comply with the MPI and the Court's orders.
Defendants have suggested they do not have the wherewithal to pay the monetary sanctions already imposed. But they have provided no proof to that effect, and they have not paid any portion of what is owed, thereby demonstrating outright defiance of the Court's orders.
Finally, Plaintiff requests recovery of attorney's fees and costs associated with litigating Defendants' latest failures to cure their violations of the MPI. Such an award is warranted, particularly in light of Defendants' continued willful failure to comply with the MPI and subsequent orders of the Court. See New York State National Organization For Women v. Terry, 159 F.3d 86, 96 (2d Cir. 1998) (affirming fee award and stating that “[a] finding that a condemnor's misconduct was willful strongly supports granting attorney's fees and costs to the party prosecuting the contempt”); Weitzman v. Stein, 98 F.3d 717, 719 (2d Cir. 1996) (“[A] finding of willfulness strongly supports granting [attorney's fees]. Indeed, to survive review in this court, a district court, having found willful contempt, would need to articulate persuasive grounds for any denial of compensation for the reasonable legal costs of the victim of contempt”).
CONCLUSION
For the foregoing reasons, I recommend:
1) Defendants be ordered to pay $301,000 to the Clerk of Court as monetary coercive sanctions incurred through November 2, 2021 for failing to timely cure the lack of a compliant disclaimer in connection with five YouTube videos and for failing to cure the defamatory news video violation. Additional monetary coercive sanctions for continued failure to cure the news video violation after November 2, 2021 will continue to accumulate as provided by Contempt III.
2) Defendants be found in contempt of Contempt III for failing to pay the compensatory damages award required by the Court to be paid by September 10, 2021 (the “Compensatory Damages Award”).
3) Monetary coercive sanctions be imposed to compel Defendant to (a) pay the Compensatory Damages Award pursuant to Contempt III, and (b) cure (i) Defendants' additional violations of the MPI's disclaimer requirement and (ii) Defendants' use of a mark confusingly similar to Plaintiff's South Korean “Aquagold fine touch” figurative mark. The Court recommends applying the same daily coercive sanction formula applied in Contempt III.
4) Defendants be required to pay Plaintiff's attorney's fees and costs incurred in connection with the issues addressed by this Report and Recommendation.
To the extent not addressed above, the Court has considered the parties' arguments and finds them to be without merit.
DEADLINE FOR OBJECTIONS AND APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 1007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.
Copies transmitted to all counsel of record.