Case Information
*1 Before W OOD , Chief Judge , F LAUM R IPPLE , Circuit Judges .
R IPPLE , Circuit Judge
Bioscience, LLC (“Quincy”) filed civil action Ellishbooks, related individuals, entities (collectively “Ellishbooks”) alleging claims trademark infringement, false advertising, dilution, un fair competition under Lanham Act, U.S.C. §§ 1114, well as claims Illinois statutory common law. operative en ‐ gaged in the unauthorized and unlawful sale Quincy’s bearing the Prevagen® trademark. did file a responsive pleading complaint. After entry a judgment, awarded damages and permanent injunctive relief Quincy. now challenges judgment
on several grounds. These arguments have been waived and, any event, are meritless. We therefore affirm court.
I.
BACKGROUND Quincy develops, markets, and sells dietary supple ments, which its customers use support cognitive function. packages its Prevagen® product “in a single fac ing box, which contains bottle dietary supplements sealed plastic safety overwrap and product infor mation sheet. Both box sheet contain valuable information regarding product which is present bottle label … .” marketed through brick mortar stores Internet websites. registered its trademark has used continually since time.
facts are those first amended complaint be cause, “[u]pon default, well pled allegations relating liability are taken true.” Wehrs Wells , F.3d (7th Cir. 2012). ¶15.
Ellishbooks, which was authorized sell Prevagen® products, sold dietary supplements identified Prevagen® Amazon.com. These included items (1) were altered or damaged packaging lacked prod ‐ uct information sheets found Prevagen® sold authorized sellers; (2) lacked appropriate purchase codes or other markings identify appropriately authorized retail seller of product; and (3) contained Radio Frequen cy Identification tags and security tags from retail pharmacy stores. “knew reason know least some PREVAGEN® [it] one time stolen from retail outlets across country.” brought action Ellishbooks, alleging violations Lanham Act and violations Illinois statu tory common law. It sought preliminary and perma nent injunctive relief prevent from using mark, from using any symbol mark calculated represent mark, falsely repre senting associated Quincy. also requested an accounting any profits derived Id ¶ Specifically, Count I alleged trademark infringement under U.S.C.
§ 1114; Count II alleged false designation origin unfair competi tion under U.S.C. § 1125(a)(1)(A); Count III alleged false advertising under U.S.C. § 1125(a)(1)(B); Count IV alleged dilution under U.S.C. §1125(c); Count V alleged dilution under Illinois Trademark Registration Protection Act, ILCS 1036/65; Count VI alleged un fair competition Illinois common law; Count VII alleged violation Illinois Uniform Deceptive Trade Practices Act, ILCS 510/2; Count VIII unjust enrichment. generally R.10. products. Finally, sought damages, lost profits, statutory damages, treble damages, and attorneys’ fees.
Ellishbooks did not answer complaint, and, conse quently, Quincy filed a motion for entry default. The dis trict granted motion. Quincy then moved for entry default judgment. opposed motion two grounds: (1) been served properly with summons and complaint; and (2) listed and sold Amazon.com goods “different and distinct those produced sold by [Quincy].” With respect second ground, stated its “products [we]re listed or identified Prevagen, as by [Quincy], but [we]re instead listed a different name different packaging.” granted a default judg ment. detailed myriad ways attempted effectuate personal service, observed “de liberately [had] obfuscated their place business See Fed. R. Civ. P. 55(a) (“When party whom a judgment affirmative relief is sought has plead otherwise defend, failure shown by affidavit otherwise, clerk must enter party’s default.”). See Fed. R. Civ. P. 55(b)(2) (setting forth requirements entry court). 2. Id. Id 19 1799 5 sought to evade service,” noted that, having other efforts, “Quincy mailed service to Elishbook Corpora ‐ tion’s registered agent at listed address accordance with New Jersey law.” The district court therefore conclud ‐ ed Quincy had effected “legally adequate service,” court had personal jurisdiction over defendants.
The court noted also re quested default be vacated substantive grounds. explained that, “[i]n order to have a default vacat ed, a party must establish good cause their default, quick action correct it, a meritorious defense to plain tiff’s complaint.” Apart its allegations about lack service, however, “identified no circum stances capable establishing good cause [its] default.” Consequently, concluded “failed establish default [it] should be vacated.” After entering favor Quincy, scheduled prove up hearing determine amount damages be awarded. filed leave take pre dis covery respect damages. On same day, Ellish at id . 3–4. Id (citing Parker Scheck Mech. Corp ., F.3d (7th Cir.
2014)). Id. Id. ‐
books’s counsel filed motion to withdraw. The court granted both motions ordered Rachel Steinharter, registered agent for Ellishbooks, to be present at next hearing. Ms. Steinharter did not appear at hearing, nor did she appear rescheduled hearing. retained new counsel, Robert DeWitty, who
represented prove up hearing. Prior prove up hearing, Quincy subpoenaed submitted court documents from Amazon.com establishing El lishbooks “received $480,968.13 sales brand products.” At prove up hear ing, Mr. DeWitty offered argument award some damages, but he counter any Quincy’s evi dence. The consequently entered judgment favor Quincy amount $480,968.13, plus costs. The order, however, did address Quincy’s request permanent injunction. Consequently, moved amend Federal Civil Procedure include injunctive relief. The held motion, but counsel did appear. then granted amend, “per manently enjoined [Ellishbooks] (1) infringing upon Plaintiff’s PREVAGEN® trademark; (2) selling stolen bearing PREVAGEN® trademark. Ellishbooks timely appealed.
II.
DISCUSSION Ellishbooks now raises three challenges district judgment. First, it asserts that district court failed make “factual findings decisive issues” re quired Federal Rule Civil Procedure 52(a). Second, it maintains clearly erred holding that (Ellishbooks) knew reason know a portion were stolen. Finally, submits erred entering a permanent injunction when established knew portion stolen.
A Ellishbooks’s contentions require limited discussion. First, is clear which order believes falls 2. Following filing notice appeal, we ordered limited re
mand parties seek an injunction complies Federal Civil Procedure 65(d)(1)(C), which requires every order granting an injunction describe acts being restrained reasonable detail. App. R.2. A new final entered August 1, 2019, fol lowing which again appear. jurisdiction over action under U.S.C. §§ 1338. Our jurisdiction secure U.S.C. § 1291. Appellants’ Br. short of the procedural mark. Federal Rule of Civil Proce ‐ dure 52(a) did not govern the court’s ruling on the for judgment. 52(a) only applies to ac tions are tried on the facts without jury an ad visory jury; does not apply when rules “any other motion.” Fed. R. Civ. P. 52(a). If Ellishbooks’s argu ment relates to the order awarding damages, misses the mark. Whether was entitled damages under Lanham Act did depend whether Prevagen® stolen; consequently, there was no reason for make such findings support of its award.
At bottom, Ellishbooks seems contend make sufficient findings fact support its order enjoining Ellishbooks from selling stolen products. maintains that, given “inconclusive” repre sentations Quincy’s counsel origin sold, “a factual finding necessary establishing elements receipt stolen goods Illinois law.” We cannot accept character ization proceedings conclusion reaches.
Appellee’s Br. (noting that, “[w]hile indirectly raised stolen issue March prove up defense claim increased damages, did chal lenge liability unjust enrichment sales such goods” (citation omitted)). Appellants’ Br. ‐
Here, the granted Quincy’s motion de fault. “Upon default, the well pled allegations the com plaint relating liability are taken true … .” Wehrs Wells , F.3d 886, (7th Cir. 2012). alleges that, “[u]pon information and belief, Defendants knew or reason know that at least some PREVAGEN® products Defendants have sold were at one time stolen retail outlets across country.” By reason default, this allegation was established: defendants they knew reason know were stolen. Indeed, order granting affirmatively states this fact “has been found.” repeated this finding subsequent order.
Far throwing this fact into doubt, exchange be tween and counsel during prove up confirms there no evidence contrary (estab lished) allegation, consequently no further comment required. During prove up hear R.10 ¶ 30. “[I]t has been found Defendants Elishbooks Cor
poration have committed trademark infringement false advertising violation Lanham Act, U.S.C. §§ 1125(a)(1)(A), respect Plaintiff’s PREVAGEN® trademark. Defendants knew reason know at least some bearing Plaintiff’s PREVAGEN® trademark stolen sales these injured Plaintiff unjustly enriched Defendants.” R.69 1–2. 19 1799 ing, Quincy explained that sought receipts El ‐ lishbooks to establish the origin of the resold; Ellishbooks, however, could pro duce receipts accounting only twenty percent of those products. In response defense counsel’s argument Quincy not established the origin of the other eighty percent of products, the court asked defense counsel if was “because your client stonewalled?” When counsel responded “respond[ed] several of their discovery issues,” made clear “[s]everal is good enough in court. … You can’t just pick “Although upon default, well pleaded allegations of a complaint relating liability are taken true, allegations in a complaint relating amount damages suffered ordinarily are not.” United States v. DiMucci , F.2d 1488, (7th Cir. 1989) (citing Dundee Cement Co. Howard Pipe & Concrete Prods ., F.2d (7th Cir. 1983)). Feder al Civil Procedure 55(b)(2) provides “[t]he may con duct hearings … when, enter or effectuate judgment, needs to: … (B) determine amount damages … .” “A by may be entered without hearing damages unless amount claimed liquidated capable ascertainment definite figures contained in documentary evidence detailed affidavits.” DiMucci , F.2d at 1497. Here, there no specific allegations regarding amount damages, and, consequently, scheduled prove up hearing. We express no opinion whether, light af fidavit documentary evidence supplied prior hear ing, see supra note accompanying text, such neces sary. 15. Id
choose say, oh, I will give you few things here.” De fense counsel acknowledged truth of this statement, concluded, “And that’s what happened here.” El lishbooks came forward no evidence challenge fact, established by way of default, that it knew or rea son know that some of Prevagen® products it sold were stolen. Indeed, fact it could account origin eighty percent Prevagen® it sold provides an additional basis conclu sion.
By reason Ellishbooks’s default, it was established knew reason know some it resold were stolen. was entitled rely fact issuing its injunction.
B . also maintains clearly
erred holding it knew reason know some stolen. As we already have explained, however, fact Quincy’s first amended established Ellishbooks’s default. Although opposed entry judgment, did do so ground Id . 18–19. Id 19. ¶
now asserts. also failed to raise this argument response to Rule motion, which explicitly requested that the enjoin Ellishbooks from “selling stolen bearing the trademark”; indeed, Ellishbooks failed to file any response to the motion. Having failed to present this argument to court, Ellish ‐ books has waived it purposes appeal. See, e.g ., Fednav Int’l Ltd. Cont’l Ins. Co ., F.3d 834, (7th Cir. 2010) (“[A] party has waived ability to make specific argu ment first time appeal when party failed present that specific argument court.”).
C Finally, Ellishbooks contends that erred permanently enjoining it selling stolen because not established it ever sold stolen products. Again, however, fact prod ucts stolen and estab lished by default. numerous opportuni ties contest this fact, counter this evidence, argue should form basis injunctive relief. Because present this argument before dis trict court, argument also waived purposes this appeal.
argued only been properly served “list[ed] s[old] Amazon [we]re different dis tinct those produced [Quincy].” R.23 11; see also supra p.5. ¶14.
Conclusion
For reasons set forth opinion, affirmed. AFFIRMED