MOOSE TOYS LTD, et al., v. BABY&MOMMY K-INGDOM TOY STORE, et al.,
21-CV-2370 (GBD) (OTW)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
September 19, 2025
REPORT & RECOMMENDATION TO THE HON. GEORGE B. DANIELS
I. INTRODUCTION
Plaintiffs Moose Toys Ltd, Moose Toys Pty Ltd, Moose Creative Pty Ltd, Moose Enterprise Pty Ltd, and Moose Creative Management Pty Ltd (collectively, “Plaintiffs“) brought this action against thirty-five Defendants,1 all of whom are merchant storefronts on the third-party e-commerce platforms Alibaba and AliExpress. Plaintiffs allege that Defendants listed for sale counterfeit products infringing on Plaintiffs’ registered trademark in violation of various provisions of the Lanham Act,
This matter is before the Court for an inquest following the entry of default judgment against Defendants. (See ECF 36).
II. BACKGROUND
A. Factual Background
Plaintiffs are five entities, based in the United Kingdom2 and Australia3 that collectively form the “Moose” business, which develops, markets, and sells children‘s toys. (ECF 6 ¶ 11).
Moose sells its products in over eighty countries worldwide. (Id. ¶ 12). Among Moose‘s many products is a line of toys known as “Scruff-a-Luvs.” (Id. ¶¶ 11, 13). Created in 2018, Scruff-a-Luvs are a line of plush toys “waiting to be rescued“: they “arrive as a sad ball of matted fur, but once bathed and dried, can be styled with accessories and adopted using their own adoption certificate.” (Id. ¶¶ 13, 15). In 2019, the Toy Industry Association awarded the Scruff-a-Luvs products the coveted Plush Toy of the Year Award. (Id. ¶ 15). The Scruff-a-Luvs’ success is due to Moose‘s extensive advertising efforts, use of high-quality materials, and general reputation and goodwill among the public. (Id. ¶¶ 22–26). Since 2019, Moose has held a valid trademark from
Novelty toy items in the nature of stuffed animals; Play houses and toy accessories therefor; ... Plush toys; Role playing toys in the nature of play sets for children to imitate real life occupations; Stuffed dolls and animals; Stuffed toy animals; Stuffed toys; Toy animals; Toy animals and accessories therefor; Toys, namely, bean bag animals; Soft sculpture plush toys; [and] Stuffed and plush toys.
(Id. at 37–39).
Defendants are individuals and/or business that are, to Plaintiffs’ knowledge, likely based in China and who operate merchant storefronts on third-party e-commerce platforms Alibaba and AliExpress. (Id. ¶ 31). After investigation, Plaintiffs determined that Defendants manufacture, import, export, advertise, market, promote, distribute, display, and offer for sale counterfeit products without authorization. (Id. ¶¶ 36-37). Among the products listed for sale on Defendants’ merchant storefronts are toys that bear remarkable resemblance to Scruff-a-Luvs. (See ECF Nos. 16-1, 16-2) (collecting photographs of such listings from each Defendant).4
Plaintiffs also determined through investigation that all of the Defendants are still “currently offering for sale and/or selling Counterfeit Products through their User Accounts and/or Merchant Storefronts.” (ECF 6 ¶ 40). Below is an image of Plaintiffs’ product (left), alongside a listing from Defendant Homeandhouse Store‘s storefront (right).
(Id. at 11).
Images of products from all thirty-five of Defendants’ storefronts show products bearing a striking resemblance to Plaintiffs’ Scruff-a-Luvs products. (ECF Nos. 16-1, 16-2). Several of the products are listed using the exact name “Scruff-a-Luvs.” (See, e.g., ECF 16-1 at 3). Others are listed using names similar to Plaintiffs’ registered wordmark. (See, e.g., Id. at 110, 117 (“scruff a luvs“); 48, 92 (“SCRUFF A LUV“); 10, 34, 65, 79, 103, 155 (“Scruff a Luvse“); 56 (“Scruff Plush Toy a Luvse“)). Where the text of a listing does not contain a phrase similar to “Scruff-a-Luvs,” the listing includes a photograph of a product bearing the unaltered Scruff-a-Luvs logo. (See, e.g., Id. at 132). Almost every listing features an image of an octagonal box with a round, large-eyed, furry creature in the middle; a heart-shaped logo in the upper-left corner; a heart-shaped handle; and the phrase “Who will you Rescue?” printed at the bottom, all of which are features of and indistinguishable from Plaintiffs’ products and trademarks. (See generally ECF Nos. 16-1, 16-2).
Screenshots of checkout pages for each of the Defendants show those allegedly infringing listings in a shopping cart. (See ECF Nos. 6 ¶¶ 39–40, 16-1, 16-2). On each picture of the checkout pages, the shipping address is listed as Manhattan, and on most there is a button
B. Procedural History
On March 18, 2021, Plaintiffs filed this action against thirty-five Defendants for counterfeiting of Plaintiffs’ federally-registered trademark in violation of
On December 24, 2021, Plaintiffs filed a notice of voluntary dismissal as to all claims against Defendant Live-loving Store pursuant to
On November 28, 2022, I directed Plaintiffs to file their proposed findings of fact and conclusions of law by January 3, 2023, with Defendants’ opposition, if any, due January 24, 2023. (ECF 37). Plaintiffs filed their inquest submissions on January 3, 2023. (ECF Nos. 39-42). To date, Defendants have not filed an opposition. (See Docket).
A. Legal Standards
1. Determining Liability
A defendant‘s default is deemed “a concession of all well-pleaded allegations of liability,” Rovio Entm‘t, Ltd. v. Allstar Vending, Inc., 97 F. Supp. 3d 536, 545 (S.D.N.Y. 2015), but “[a] default only establishes a defendant‘s liability if those allegations are sufficient to state a cause of action against the defendants.” Gesualdi v. Quadrozzi Equip. Leasing Corp., 629 F. App‘x 111, 113 (2d Cir. 2015). Thus, a court “must determine whether the allegations in the complaint establish the defendants’ liability as a matter of law.” Nguyen v. Pho Vietnam 87 Corp., 23-CV-4298 (JLR) (VF), 2025 WL 564546, at *3 (S.D.N.Y. Jan. 31, 2025) (internal quotation marks omitted), report and recommendation adopted by 2025 WL 562763 (S.D.N.Y. Feb. 19, 2025). If a court finds a complaint fails to state a claim on which relief may be granted, the court may not award damages notwithstanding the default. Id. (citing Lopez v. Emerald Staffing, Inc., 18-CV-2788 (SLC), 2020 WL 915821, at *4 (S.D.N.Y. Feb. 26, 2020)). Similarly, if the conceded factual allegations do not demonstrate that the court has jurisdiction over the case, the court cannot issue a binding judgment. See Spin Master Ltd. v. 158, 463 F. Supp. 3d 348, 361–62 (S.D.N.Y. 2020), adhered to in part on reconsideration, 18-CV-1774 (LJL), 2020 WL 5350541 (S.D.N.Y. Sept. 4, 2020).
2. Determining Damages
Even though a complaint‘s factual allegations are presumed true in the event of a default, damages allegations are not entitled to the same presumption. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). The plaintiff “bears
B. Liability
1. Jurisdiction and Venue
The first step in an inquest analysis is to determine whether the court: (1) has subject-matter jurisdiction over the claims, (2) has personal jurisdiction over the parties, and (3) is the proper venue in which the claims should be heard. See, e.g., Koziar v. Blammo, Ltd., 759 F. Supp. 3d 543, 549 (S.D.N.Y. 2024); Burns v. Scott, 635 F. Supp. 3d 258, 273 (S.D.N.Y. 2022); Malletier v. Artex Creative Int‘l Corp., 687 F. Supp. 2d 347, 353–54 (S.D.N.Y. 2010).
a. Subject-Matter Jurisdiction
b. Personal Jurisdiction
It is proper for the Court, before assessing damages owed by defaulting parties, to “exercise its responsibility to determine that it has the power” to do so by “first assur[ing] itself that it has personal jurisdiction.” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010).9 Service of summons establishes a district court‘s personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”
Defendants were served with summonses pursuant to the alternative methods of service authorized in the March 18 Order, and this Court sits in New York. Accordingly, personal jurisdiction over a Defendant is proper here if: (1) the New York long-arm statute authorizes state courts to exercise personal jurisdiction over that Defendant, and (2) exercising that personal jurisdiction comports with the Fourteenth Amendment.
Plaintiffs contend that two New York statutory provisions—
i. Jurisdiction Is Not Proper for All Defendants Under § 302(a)(1)
As to the first requirement,
As to the second requirement, “a claim ‘aris[es] from’ a particular transaction when there is some articulable nexus between the business transacted and the cause of action sued upon, or when there is a substantial relationship between the transaction and the claim asserted.” Sole Resort, 450 F.3d at 103 (internal citations and quotation marks omitted). Because the nexus inquiry is “relatively permissive,” see Spetner v. Palestine Inv. Bank, 70 F.4th 632, 643 (2d Cir. 2023), the connection
Here, CDTOYS Store and DuLa Baby Store are the only Defendants whom Plaintiffs plead accepted a payment from Plaintiffs for the infringing products. (See ECF 16-1 at 31, 62). By accepting payment for the allegedly counterfeit products and agreeing to ship them to New York, these two Defendants engaged in transactions whereby they “purposefully availed themselves of the privileges of conducting activities in New York.” Spin Master, 463 F. Supp. 3d at 363.13 Furthermore, there is a clear nexus between these transactions and Plaintiffs’ claims: Plaintiffs allege that Defendants sold counterfeit, trademark-infringing goods in violation of the Lanham Act and New York unfair competition law, and the transactions in question are the sales of those allegedly counterfeit goods. Accordingly, the exercise of personal jurisdiction under
However, for the remaining thirty-two Defendants,14 the Court finds that personal jurisdiction is not proper under
In similar scenarios, courts in this district have reached different conclusions as to whether such activities satisfy the first prong of
In a recent Second Circuit trademark infringement case, the plaintiff alleged, as Plaintiffs do here, that the China-based defendants operated websites that sold counterfeit goods that infringed on the plaintiff‘s American Girl products and “prominently used American Girl marks on their websites.” See Am. Girl, LLC v. Zembrka, 118 F.4th 271, 273 (2d Cir. 2024), cert. denied
After Zembrka, it is clear that “transacting business” requires more than simply operating a website that is accessible on the internet in New York, but does not require that the infringing goods actually be shipped. To confer personal jurisdiction under
Here, Plaintiffs fail to establish any sales, exchange of funds, or communications with the remaining 32 defendants; they provide proof only of thirty-two uncompleted checkout pages. Nor do Plaintiffs allege that they are aware of other transactions for the infringing goods that were completed with these Defendants, or that there is common ownership among the Defendants (whether or not such common ownership is readily apparent from the Defendants’ webpages) such that the completed transactions of CDTOYS Store and DuLa Baby Store can be reasonably attributed to the other 32 Defendants. While Plaintiffs allege that Defendants are in “constant communication with each other” regarding illegal counterfeiting activities and pending litigation, (ECF 6 ¶ 34), Plaintiffs do not allege that Defendants are in communication with each other regarding the alleged counterfeiting activities at issue in this case, or this particular lawsuit; in the absence of some other minimal factual allegation of common ownership or conspiracy between the parties, such broad, conclusory allegations are insufficient to justify the exercise of personal jurisdiction over these 32 Defendants.
Finally, Plaintiffs’ allegation, “[u]pon information and belief,” that “Defendants have transacted business with consumers located in the U.S., including New York, for the sale and shipment of [c]ounterfeit [Scruff-a-Luvs] [p]roducts” is unavailing, as “conclusory allegations showing the presence of jurisdiction, particularly those stated only upon information and belief,
ii. Jurisdiction Is Not Proper for All Defendants Under § 302(a)(3)
For similar reasons,
In determining whether there is an injury sufficient to warrant jurisdiction under
For the same reasons that Plaintiffs fail to establish jurisdiction under
Accordingly, jurisdiction over Defendants is improper under
iii. Not All Defendants Have Purposefully Availed Themselves of New York
Plaintiffs also fail to establish that the mere accessibility of the 32 Defendants’ websites in New York, without more, is sufficient to find that these defendants purposefully availed themselves under the Due Process Clause of the Fourteenth Amendment.
To engage in purposeful availment, the defendant must specifically target the forum state: targeting the United States as a whole is insufficient. See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 886 (2011) (plurality opinion) (“Here the question concerns the authority of a New Jersey state court to exercise jurisdiction, so it is petitioner‘s purposeful contacts with New Jersey, not with the United States, that alone are relevant.“); Goldman v. Trinity Sch. of Med. Through Bd. of Trs., 24-1827-CV, 2025 WL 1099088, at *1–2 (2d Cir. Apr. 14, 2025) (summary order) (holding that “nationwide” marketing and recruitment activities which reach New York but are “not specifically targeted at New York ... do not establish purposeful availment“). Simply placing a product “into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Asahi Metal Indus. Co., Ltd. v. Superior Court of Calif., Solano Cnty., 480 U.S. 102, 112 (1987) (plurality opinion). Additional conduct indicating “an intent or purpose to serve the market in the forum State” is required. Id. Examples of such conduct include “designing the product for the market in the forum State” and “advertising in the forum State.” Id.; see also Goldman, 2025 WL 1099088, at *2. In the same
The two Defendants who actually accepted payment from New York customers and agreed to ship products to New York, by these affirmative actions, satisfied the purposeful availment requirement. However, there is no evidence that the 32 Defendants with no documented sales to New York undertook any action intentionally targeting New York. The only affirmative action each of these 32 Defendants took was listing their products on Alibaba and AliExpress—sites which happen to offer shipping to New York. Plaintiffs do not allege that these thirty-two Defendants accepted payment from a New York customer, shipped goods to a New York customer, modified their products for the New York market, advertised in New York, or did anything evidencing an intent to purposefully avail themselves of New York specifically. Merely listing a product on Alibaba does not necessarily evidence an intent to serve the New York market. Alibaba is the largest e-commerce platform in China, and only a small portion of total sales appear to come from abroad. (ECF 6 ¶¶ 28–30). It is entirely conceivable that Defendants’ intentions were purely local in nature.
iv. Jurisdiction Is Not Proper for Any Defendant Under FRCP 4(k)(2)
Plaintiffs argue in the alternative that personal jurisdiction is proper under
Rule 4(k)(2) provides:
For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state‘s courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws.
[T]he defendant [is] a non-resident of the United States having contacts with the United States sufficient to justify the application of United States law and to satisfy federal standards of forum selection, but having insufficient contact with any single state to support jurisdiction under state long-arm legislation or meet the
Plaintiffs have not established that
v. Default Judgment as to the 32 Defendants Should be Vacated and All Claims Should Be Dismissed
“It is well-established that a default judgment entered by a court that lacks personal jurisdiction over the parties is void” and subject to vacatur under
c. Venue
Unlike jurisdiction, “proper venue is not essential to a valid judgment.” 10A Wright & Miller, Fed. Prac. & Proc. Civ. § 2695 (4th ed.) (section updated 2025). Rather, it is “a privilege personal to each defendant” and, as such, “can be waived.” Concession Consultants, Inc. v. Mirisch, 355 F.2d 369, 371 n.1 (2d Cir. 1966). One way a defendant waives its privilege to proceed only in a proper venue is by defaulting. See Garzon v. Bldg. Servs. Inc., 24-CV-5429 (JLR) (RFT), 2025 WL 1871171, at *6 (S.D.N.Y. July 2, 2025), report and recommendation adopted, 2025 WL 2062741 (S.D.N.Y. July 23, 2025) (holding that venue was proper on an inquest because defendants waived objections by defaulting).
Accordingly, Defendants CDTOYS Store and DuLa Baby Store have waived their entitlement to proper venue by defaulting, and venue in the Southern District of New York is appropriate.
2. 15 U.S.C. § 1114(1)(a): Trademark Counterfeiting Liability
First, Plaintiffs have a valid registered trademark (Registration No. 5,562,661) entitling them to exclusive use of the “Scruff-a-Luvs” mark on a variety of goods. (See ECF 6 at 37).
Second, Plaintiffs did not give any Defendant permission to use their registered mark. (ECF 6 at ¶ 37). Third, taking the factual allegations in the complaint as true, Defendants sell products “nearly indistinguishable from Plaintiffs’ Scruff-a-Luvs Products, only with minor variations that no ordinary consumer would recognize.” (ECF 6 ¶ 38); (ECF Nos. 16-1, 16-2). Defendants CDTOYS Store and DuLa Baby Store list products with some combination of color, shape, design, logo placement, and name substantially indistinguishable from Plaintiffs’ Scruff-a-Luvs products.
Accordingly, Defendants CDTOYS Store and DuLa Baby Store are liable for Plaintiffs’ trademark counterfeiting claims.19
3. 15 U.S.C. § 1114: Trademark Infringement Liability
Because Defendants CDTOYS Store and DuLa Baby Store are offering for sale counterfeit versions of Plaintiffs’ products bearing colorable imitations of Plaintiffs’ federally registered mark, Defendants are liable for trademark infringement. See Spin Master, 463 F. Supp. 3d at 369.
4. 15 U.S.C. § 1125: False Designation of Origin, Passing Off, and Unfair Competition
5. New York Common Law Unfair Competition
Unfair competition under New York common law is “the bad faith misappropriation of the labors and expenditures of another, likely to cause confusion or to deceive purchasers as to the origin of the goods.” Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 34 (2d Cir. 1995) (citations omitted). A plaintiff satisfies the requirements of common law unfair competition by stating a successful Lanham Act unfair competition claim, coupled with a showing of defendant‘s bad faith. See Spin Master Ltd. v. Alan Yuan‘s Store, 325 F. Supp. 3d 413, 424 (S.D.N.Y. 2018) (citing Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 149 (2d Cir. 1997)). Bad faith is presumed when defendant uses a counterfeit mark. Fendi Adele S.R.L. v. Burlington Coat Factory Warehouse Corp., 689 F. Supp. 2d 585, 599 (S.D.N.Y. 2010).
Accordingly, because Plaintiffs have made out Lanham Act claims for both unfair competition and use of a counterfeit trademark and alleged the use of a counterfeit mark, Defendants CDTOYS Store and DuLa Baby Store are liable for unfair competition under New York common law.
C. Damages
Plaintiffs have elected to seek statutory—rather than actual—damages pursuant to
A court may award statutory damages ranging between $1,000 to $200,000 per counterfeit mark for each type of goods or services sold.
Although the Lanham Act “does not provide guidelines for courts to use in determining an appropriate award” for willful infringement, courts in this district frequently employ the factors used to determine willful infringement under the Copyright Act,
Defendants’ nonappearance renders factors one and two immeasurable. The remaining factors weigh in favor of a higher damages award. Notably, the Scruff-a-Luvs mark is valuable, having been recognized with several awards and associated with Moose‘s “valuable reputation and goodwill among the public,” and, as discussed above, Defendants’ conduct was willful. Where, as here, the defendants operate “small-scale counterfeiting operations to up to $1 million,” courts typically award damages well below the statutory maximum, ranging between $25,000 to $50,000. WowWee, 2019 WL 1375470, at *10 (citations omitted). Here, Plaintiffs plead no facts as to the scope of Defendants CDTOYS Store and DuLa Baby Store operations, and as such, there is no reason to believe that Defendants’ sales are substantial. Accordingly, in line
IV. DEFENDANT LIVE-LOVING STORE
Where a plaintiff seeks voluntary dismissal pursuant to
On December 21, 2021, Plaintiffs filed a notice of voluntary dismissal pursuant to
Accordingly, I respectfully recommend that the Clerk of Court be directed to terminate Defendant Live-loving Store from the docket pursuant to the notice of voluntary dismissal at ECF 25.
For the foregoing reasons, I respectfully recommend that:
- The Default Judgment Order be vacated as to the 32 Defendants over which the Court has no personal jurisdiction, see Section III.B.1.b.v. supra; the Certificate of Default be stricken as to these Defendants only; and that all claims as to these Defendants be dismissed without prejudice;
- Defendants CDToys Store and DuLa Baby Store each be found liable to Plaintiffs for $50,000 in statutory damages, totaling $100,000 in total damages; and
- Defendant Live-loving Store be dismissed with prejudice in accordance with ECF 25.
VI. OBJECTIONS
In accordance with
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237–38 (2d Cir. 1983).
/s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge
Dated: September 19, 2025
New York, New York