Tel Amar v. Excalibur Moving Group, LLC
2:18-cv-05639
C.D. Cal.Oct 23, 2018Background
- Plaintiff Tal Amar (dba Excalibur) is a California moving/storage carrier and owner of U.S. Trademark Reg. No. 4,746,594 for “Excalibur,” used in commerce since 2005.
- Defendant Excalibur Moving Group, LLC (Florida broker) began using the name “Excalibur Moving Group” in October 2017 and operated a website and promotional materials using EXCALIBUR.
- Plaintiff alleges consumer confusion and diversion of business, identified misdirected negative reviews and a revenue decline of about $198,000 for Jan–Aug 2018 compared with 2017.
- Plaintiff sued for Lanham Act violations and state claims and obtained a preliminary injunction on August 20, 2018; Defendant was properly served but did not appear or respond.
- Court entered default against Defendant and considered Plaintiff’s unopposed motion for default judgment seeking $600,000 (treble damages), $15,600 attorneys’ fees, and a permanent injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment is appropriate | EMG infringed Excalibur mark; defendant failed to respond; plaintiff suffered lost revenue and reputational harm | EMG did not appear to contest | Default judgment granted (procedural requirements met; Eitel factors favor default) |
| Damages amount | Seeks $600,000 (trebled lost revenue of $198,000 for Jan–Aug 2018) | N/A (no opposition) | Court accepted plaintiff’s calculation and awarded $600,000 |
| Attorneys’ fees under Lanham Act §1117(a) | Case is exceptional; defendant acted willfully/maliciously; requests fees per Local Rule 55-3 ($15,600) | N/A | Court found fee award warranted and granted $15,600 based on Local Rule schedule |
| Permanent injunction scope | Seeks broad injunction barring use of EXCALIBUR in marks, domains, advertising, and any confusingly similar uses | N/A | Court found injunction appropriate and entered permanent injunction in proposed terms |
Key Cases Cited
- NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606 (9th Cir. 2016) (upon default, factual allegations in complaint are taken as true except damages)
- Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986) (sets seven-factor test for default-judgment discretion)
- Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980) (default-judgment entry is within district court’s discretion)
- Watec Co. v. Liu, 403 F.3d 645 (9th Cir. 2005) (Lanham Act fee award appropriate in exceptional cases showing willfulness or bad faith)
- Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039 (N.D. Cal. 2010) (relief awarded must not differ in kind or exceed amount pleaded)
- Wecosign, Inc. v. IFG Holdings, Inc., 845 F. Supp. 2d 1072 (N.D. Cal. 2012) (equitable injunctions available under Lanham Act to prevent trademark violations)
- Reno Air Racing Ass’n v. McCord, 452 F.3d 1126 (9th Cir. 2006) (district courts may grant injunctions under Lanham Act according to equitable principles)
- Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175 (9th Cir. 1988) (injunctive relief is the remedy of choice for trademark/unfair competition cases)
- Philip Morris USA, Inc. v. Castworld Prod., Inc., 219 F.R.D. 494 (C.D. Cal. 2003) (refusal to enjoin continuing infringement risks irreparable harm)