No. C 08-04046 SBA, [Docket No. 20].
March 2, 2009
The Court has reviewed the pleadings filed in connection with plaintiff's Motion for Entry of Default Judgment (the "Motion") [Docket No. 20] based on defendant Lamor Morton's alleged trademark infringement under 15 U.S.C. § 1114(a)(1). The Court has four specific concerns:
(1) Title 50 U.S.C. App. § 521 of the Servicemembers Civil Relief Act requires Adobe to provide the Court with specific facts regarding Morton's military status or why Adobe is unable to obtain them. Adobe's counsel declares that "I am informed and believe that Defendant is not currently serving in the military." Mot., Drey Decl. ¶ 8. Adobe has not complied with § 521.
(2) Adobe claims that Morton engaged in five specific acts of trademark infringement, but does not specifically identify them.
(3) Adobe has requested a permanent injunction under 15 U.S.C. § 1116(a). Adobe's evidence shows that from January 8, 2008 through January 8, 2009, Morton sold one allegedly counterfeit copy of Adobe Sounbooth on May 13, 2008. With regards to an injunction, Adobe has not shown, inter alia, any ongoing irreparable harm or that remedies at law are inadequate. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392-93 (2006).
(4) Adobe has requested statutory damages of $250,000, under 15 U.S.C. § 1117(c)(1) for willful infringement, or alternatively, under 15 U.S.C. § 1117(c)(2) for innocent infringement. With regards to § 1117(c)(1), Adobe's only evidence of willful infringement is the evidence presented for a permanent injunction. With regards to § 1117(c)(2), Adobe requests $50,000 per trademark infringement, on this same evidence.
Plaintiff shall be prepared to address these four issues at the hearing on the Motion. In particular, plaintiff should provide the Court with the missing information indicated under paragraphs (1) and (2), and should be prepared to explain why it is entitled to the relief requested as discussed in paragraphs (3) and (4).
IT IS SO ORDERED.