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Vivint, Inc. v. Christensen

United States District Court, D. Utah

January 8, 2019

VIVINT, INC., Plaintiff,
v.
BRIAN CHRISTENSEN, Defendant.

          MEMORANDUM DECISION AND ORDER TO PROVIDE FURTHER LEGAL ARGUMENT OR ADDITIONAL EVIDENCE

          Jill N. Parrish District Judge

         Before the court is a motion for default judgment filed by Vivint, Inc. [Docket 15.] At this point, the court is disinclined to award the full measure of relief Vivint seeks. The court ORDERS Vivint to provide further legal argument or additional evidence to support its claims for statutory damages and attorney fees.

         Vivint sued Brian Christensen. It asserted a number of claims, including trademark infringement, unfair competition, and the violation of federal and state anticybersquatting statues.

         The complaint alleged that Christensen, without Vivint's knowledge or permission, registered the domain name www.vivint.io. The complaint also alleges that

[o]n information and belief, Defendant used the Infringing Domain to wrongly trade on the goodwill associated with the [Vivint's trademark] by, among others, a) offering services not provided by Plaintiff or its affiliates on or through the Infringing Domain and/or b) making an unauthorized offer to consumers of Plaintiff's services through the Infringing Domain.

         The complaint contains no other description of how Christensen used the www.vivint.io domain name.

         Christensen did not respond to the complaint, and the clerk of the court issued a default certificate. Vivint moved for default judgment and requested four items of relief: (1) an order for Christensen to transfer the www.vivint.io domain name to Vivint, (2) a permanent injunction against Christensen, (3) statutory damages in the amount of $5, 000, and (4) an award of attorney fees and costs in the amount of $17, 582.99.

         The court is inclined to grant the first two requests for relief. The allegations of the complaint support Vivint's claims that Christensen violated federal and state anticybersquatting statues by registering a domain name that incorporates Vivint's trademark. An order to transfer the domain name to Vivint and a limited permanent injunction appear to be warranted.

         But the court is currently unwilling to award statutory damages or attorney fees. Vivint has not adequately demonstrated that the allegations of the complaint establish its right to such relief. Nor has it provided any evidence demonstrating a right to recover statutory damages or attorney fees.

         I. STATUTORY DAMAGES

         Vivint argues that it is entitled to statutory damages under 15 U.S.C. § 1117(c), which provides: “In a case involving the use of a counterfeit mark . . . in connection with the sale, offering for sale, or distribution of goods or services, the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits . . . an award of statutory damages . . . .” A statutory award shall amount to “not less than $1, 000 or more than $200, 000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just.” Id. § 1117(c)(1). “[C]ounterfeiting is the ‘hard core' or ‘first degree' of trademark infringement that seeks to trick the consumer into believing he or she is getting the genuine article, rather than a ‘colorable imitation.'” Gucci Am., Inc. v. Guess?, Inc., 868 F.Supp.2d 207, 242 (S.D.N.Y. 2012) (quoting 4 McCarthy on Trademarks and Unfair Competition § 25:10).

         Vivint's complaint does not allege counterfeiting. It asserts generally, upon information and belief, that Christensen used the www.vivint.io web domain either to offer services that Vivint does not provide or to make an unauthorized offer to sell Vivint's actual services. The complaint does not aver that Christensen used counterfeit Vivint trademarks to trick consumers into purchasing second-rate copies of Vivint's services. Nor does Vivint provide any evidence that Christensen engaged in this type of counterfeiting. Absent such evidence, the court may not award statutory damages. If Vivint wishes to produce evidence of counterfeiting to justify an award of statutory damages under 15 U.S.C. § 1117(c), the court orders Vivint to provide the evidence within 14 days of this order.

         II. ATTORNEY FEES

         Vivint also requests an award of attorney fees under 15 U.S.C. § 1117(a) and Utah Code § 13-5a-103(1)(b). The court finds that Vivint has not proven that it ...


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