Opinion
4:21-cv-04515-HSG (KAW)
07-26-2022
LAWRANK LLC, Plaintiff, v. LAWRANKSEO.COM, Defendant.
REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT RE: DKT. NO. 30
CANDIS A. WESTMORE United States Magistrate Judge.
On March 24, 2022, Plaintiff LawRank LLC (LawRank) filed a motion for default judgment against Defendant LawRankSEO.com. (Pl.'s Mot., Dkt. No. 30.) On April 12, 2022, the motion was referred to the undersigned for report and recommendation.
On July 7, 2022, the Court held a hearing, at which Defendant did not appear. For the reasons set forth below, the Court RECOMMENDS that the motion for default judgment be GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
Plaintiff LawRank is a legal marketing agency offering a variety of goods and services to consumers including digital marketing services for law firms under the federal registered trademark LAWRANK. (Compl., Dkt. No. 1 ¶ 7.) Plaintiff's LAWRANK trademark is the subject of U.S. Trademark Registration No. 5,762,898. (Compl. ¶ 8.) Defendant LawRankSEO is the owner and registrant of the infringing internet domain name LawRankSEO.com. (Compl. ¶13.) Defendant also offers digital marketing services for law firms. Id. Plaintiff alleges that Defendant's infringing acts are likely to cause confusion among consumers who expect to conduct business with Plaintiff and instead reach Defendant. (Compl. ¶16.) As a result, Plaintiff alleges that Defendant's wrongful acts entitle it to statutory damages under 15 U.S.C. § 1117(c) and a permanent injunction under § 1125(d).
On June 11, 2021, Plaintiff filed the operative complaint for cybersquatting, trademark infringement, unfair competition, and false advertisement. (See Compl.) On December 10, 2021, Defendant was served with the summons and complaint by substituted service. (Dkt. No. 25.) As a result, service was complete on December 20, 2021. See id. Defendant's answer was due by January 10, 2022. On January 13, 2022, Plaintiff moved for entry of default. (Dkt. No. 26.) On January 25, 2022, the Clerk of the Court entered default. (Dkt. No. 27.)
On March 24, 2022, Plaintiff filed a motion for default judgment. (Pl.'s Mot., Dkt. No. 30.) On April 12, 2022, the motion was referred to the undersigned for report and recommendation. (Dkt. No. 34.) On June 7, 2022, the undersigned ordered Plaintiff to file a supplemental brief in support of its request for attorneys' fees and costs. (Dkt. No. 37.) On June 16, 2022, Plaintiff filed the supplemental brief and supporting declaration. (Pl.'s Suppl. Br., Dkt. No. 38; Suppl. Decl. of Ben T. Lila, “Suppl. Lila Decl.,” Dkt. No. 38-1.)
II. LEGAL STANDARD
Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a case following a defendant's default. Shanghai Automation Instrument Co. v. Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001). Whether to enter a judgment lies within the court's discretion. Id. at 999 (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)).
Before assessing the merits of a default judgment, a court must confirm that it has subject matter jurisdiction over the case and personal jurisdiction over the parties, as well as ensure the adequacy of service on the defendant. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). If the court finds these elements satisfied, it turns to the following factors (“the Eitel factors”) to determine whether it should grant a default judgment:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decision on the merits.Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citation omitted). Upon entry of default, all factual allegations within the complaint are accepted as true, except those allegations relating to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). Where a default judgment is granted, the scope of relief “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c).
III. DISCUSSION
A. Jurisdiction and Service of Process
In considering whether to enter default judgment, a district court must first determine whether it has jurisdiction over the subject matter and the parties to the case. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“When entry of judgment is sought against a party who has failed to plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties.”).
i. Subject Matter Jurisdiction
This Court has subject matter jurisdiction over this lawsuit under 28 U.S.C. § 1338, because the action arises under the trademark laws of the United States. The Court has supplemental jurisdiction over the related state law claims under 28 U.S.C. § 1367.
ii. Personal Jurisdiction
This Court has personal jurisdiction over Defendant, because it is located in Belmont, California, which is located in Northern District, and it has also transacted business to and from the Northern District of California.
The undersigned notes that the subject domain redirects users to a different website, which provides that the business is located in San Francisco, California, which is also in the Northern District. See Contact Us, ATTORNEY MARKETING HUB, https://www.attorneymarketinghub.com/contact-us/ (last visited on June 23, 2022).
iii. Service of Process
Jafar Naqvi was identified as the owner/operator of Defendant LawRankSEO.com with an address of 8365 Balboa Blvd. #12, Northridge, CA 91325. (Pl.'s Mot. at 2.) On December 10, 2021, substitute service was effectuated on LawRankSEO by leaving the Summons, Complaint and initial orders with Sarah Naqvi, Jafar Naqvi's sister, at the above address. (Dkt. No. 25.) On the same date, Plaintiff's process server mailed a copy of the service documents to the defendant at the address where copies of the Summons and Complaint were left. Id. Thus, service was proper. Defendant's default was entered on January 25, 2022.
B. Application to the Case at Bar
An analysis of the Eitel factors establishes that a default judgment is appropriate in this case.
i. Plaintiff will suffer prejudice if default judgment is not granted.
If Plaintiff is not granted relief in this case, it will likely be left without other recourse to prevent infringment. Such potential prejudice to Plaintiff militates in favor of granting a default judgment. See PepsiCo., Inc. v. Cal. Sec. Cans., 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002).
ii. Merits of Plaintiff's claims and the sufficiency of the complaint
The second and third Eitel factors focus on the merits of Plaintiffs' substantive claim and the sufficiency of the Complaint. Eitel, 782 F.2d at 1471-72. A party seeking default judgment must state a valid claim upon which it may recover. Walters v. Statewide Concrete Barrier, Inc., 2005 U.S. Dist. LEXIS 49433, at *8 (N.D. Cal. Sept. 2, 2005). LawRank's complaint provides detailed factual allegations sufficient to state a claim for the following causes of action:
The undersigned finds that the complaint does not clearly state a claim for the third cause of action for false designation of origin pursuant to 15 U.S.C. § 1125(a). This is of no consequence, because Plaintiff states a claim for trademark infringement and the Anticybersquatting Consumer Protection Act.
a. Federal Trademark Infringement, 15 U.S.C. §1114
LawRank owns all rights to its U.S. Trademark Registration for LAWRANK. (Compl. ¶ 8.) 15 U.S.C. § 1114 provides that a person shall be liable in a civil action by a registrant owner of marks if that person, without the consent of the registrant, uses “in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.” At the very least, Plaintiff asserts that Defendant's continued use of the LAWRANK mark prominently on its website and in its domain name will cause initial interest confusion. (Pl.'s Mot. at 9.) “Initial interest confusion occurs when the defendant uses the plaintiff's trademark in a manner calculated to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion.” Interstellar Starship Services, Ltd. v. Epix, Inc., 304 F.3d 936, 941 (9th Cir.2002) (internal citations and quotation marks omitted). The Ninth Circuit employs a non-exclusive eight-factor test to determine the likelihood of confusion. Playboy Enter., Inc. v. Netscape Commc'n, 354 F.3d 1020, 1026 (9th Cir.2004).
The eight factors are: (I) strength of the mark; (II) proximity of the goods; (III) similarity of the marks; (IV) evidence of actual confusion; (V) marketing channels used; (VI) type of goods and the degree of care likely to be exercised by the purchaser; (VII) defendant's intent in selecting the mark; and (VIII) likelihood of expansion of the product lines.
Defendant uses the LAWRANK mark, without alteration, in connection with its services, which are the same or similar to those offered by Plaintiff. (Compl. ¶¶ 14-16.) Specifically, the LAWRANK mark was used on Defendant's website and in its domain name. (Compl. ¶¶ 15-16, Ex. C.) Such use creates a substantial likelihood that users will be confused and wrongfully believe that Defendant's products and services are associated, affiliated, connected with, sponsored by, or endorsed by LawRank. (Compl. ¶ 16.)
Accordingly, Plaintiff has sufficiently stated a claim for trademark infringement.
b. Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d)
Generally, a defendant is directly liable under the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d), if it (1) registers, traffics in, or uses a domain name that is (2) identical or confusingly similar to a famous or distinctive mark owned by the plaintiff with (3) a bad-faith intent to profit from the mark. See, e.g., DSPT Int'l, Inc. v. Nahum, 624 F.3d 1213, 1218-19 (9th Cir.2010). In determining bad faith, courts evaluate the unique circumstances of the case; survey the nine bad-faith factors set forth in the ACPA; and consider the availability of the ACPA's statutory safe-harbor defense, which protects any defendant who “‘believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.'” Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1220 (9th Cir.2012) (quoting 15 U.S.C. § 1125(d)(1)(B)(ii)). The unique circumstances of the case are “‘the most important grounds for finding bad faith.' ” Lahoti v. Vericheck, Inc., 586 F.3d 1190, 1202 (9th Cir.2009) (quoting Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 946 (9th Cir.2002)).
Defendant used the LAWRANK mark in the www.lawrankseo.com domain name. (Compl. ¶ 20.) The issue then is whether the domain name is identical or confusingly similar to the LAWRANK mark. Under § 1125(d), the only relevant question is whether the “whether the domain names which [the defendant] registered ... are identical or confusingly similar to a plaintiffs mark.” Coca-Cola Co. v. Purdy, 382 F.3d 774, 783 (8th Cir. 2004); see also Yelp Inc. v. Catron, 70 F.Supp.3d 1082, 1097 (N.D. Cal. 2014) (citing Purdy). Here, Defendant's domain incorporates the LAWRANK mark and adds “SEO”, which is the abbreviation for “search engine optimization” and a service that Plaintiff provides. Thus, Defendant's use of the domain name is confusingly similar under § 1125(d), and the bad faith requirement is satisfied based on the intent to divert consumers. See 15 U.S.C. § 1125(d)(1)(B)(i)(V).
Accordingly, Plaintiffs sufficiently states an ACPA claim.
c. State and Common Law Unfair Competition
The Court declines to address the remaining state law claims, because Plaintiff has stated claims for federal trademark infringement and the violation of the ACPA, which provides sufficient basis for the relief sought.
iii. Sum of Money at Stake
The fourth Eitel factor assesses the reasonableness of the potential award if a default judgment is entered. In making this assessment, the Court must take into account the amount of money at stake in relation to the seriousness of Defendant's conduct. Eitel, 782 F.2d at 1471. If the sum of money at issue is reasonably proportionate to the harm caused by Defendant's actions, properly documented, and contractually justified, then default judgment is warranted. Bd. of Trs. of Cal. Metal Trades v. Pitchometer Propeller, 1997 WL 797922, at *2 (N.D. Cal. Dec. 15, 1997). A default judgment is only disfavored when a large amount of money is involved or is unreasonable in light of Defendant's actions. Truong Giang Corp. v. Twinstar Tea Corp., 2007 WL 1545173, at *12 (N.D. Cal. May 29, 2007). In determining if the amount at stake is reasonable, the Court may consider Plaintiff's declarations, calculations, and other documentation of damages. Id.
Here, Plaintiff seeks $2,000,000 in statutory damages plus attorneys' fees and costs. (Pl.'s Mot. at 12, 16.) Compared to the allegations that Defendant willfully caused substantial consumer confusion by continuing to maintain its website despite Plaintiff sending cease and desist letters, the undersigned concludes that the amount sought is neither too large nor unreasonable. Accordingly, this factor weighs in favor of entry of default judgment.
iv. The Possibility of Dispute Concerning Material Facts
The fifth Eitel factor considers the possibility of dispute as to any material facts of the case. Defendant has not participated in this action and has not made any attempt to contest any of Plaintiff's material facts or legal assertions or moved to set aside the entry of default despite being served with all papers. Thus, the possibility of a dispute regarding Defendant's liability for damages is unlikely.
Thus, this factor weighs in favor of default judgment.
v. Whether Default was a Result of Excusable Neglect
The sixth Eitel factor contemplates the possibility that Defendant's default was the result of excusable neglect. Under this analysis, the Court considers whether Defendant was put on adequate notice to apprise it of the pendency of the action brought against it. Phillip Morris USA, Inc. v. Castworld Prod., Inc., 219 F.R.D. 494, 500 (C.D. Cal. 2003). In addition, the Court also considers whether the circumstances surrounding Defendant's failure to answer the complaint are sufficient to excuse or justify its default. Shanghai Automation Instrument Co. v. Kuei, 194 F.Supp.2d 995, 1005 (N.D. Cal. 2001) (Default cannot be attributed to excusable neglect where defendants were properly served with the complaint, the notice of entry of default, and the papers in support thereof.).
Here, there is no evidence to support a finding that the default was due to excusable neglect. Defendant was served on December 10, 2021. Since that date, Defendant has not sought to set aside the entry of default, nor has it sought to oppose the instant motion despite being served with the moving papers. (Certificate of Service, Dkt. No. 30 at 17.) Consequently, there is nothing to suggest that Defendant's failure to appear and litigate this matter is based on excusable neglect.
vi. Federal Rules Preference for a Decision on the Merits
After an examination of these facts in the aggregate, this Court finds that Eitel factors one through six outweigh the Federal Rules of Civil Procedure's preference for a decision on the merits. The undersigned, therefore, recommends the entry of default judgment.
IV. RELIEF SOUGHT
A. Damages
After entry of default, well-pleaded factual allegations in the complaint are taken as true, except as to the amount of damages. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). To recover damages after securing a default judgment, a plaintiff must prove the relief it seeks through testimony or written affidavit. Bd. of Trs. of the Boilermaker Vacation Trust v. Skelly, Inc., 389 F.Supp.2d 1222, 1226 (N.D. Cal. 2005); see Pepsico, Inc., 238 F.Supp.2d at 1175 (citing Televideo Sys., Inc., 826 F.2d at 917-18).
Plaintiff seeks injunctive relief, $2,000,000 in statutory damages, and an award of reasonable attorneys' fees and costs.
i. Permanent Injunction and Transfer of the Infringing Domain
Plaintiffs contends that it is entitled to injunctive relief to address Defendant's trademark infringement. (Pl.'s Mot. at 12.) Specifically, pursuant to 15 U.S.C. §1125(d)(1)(c), Plaintiff requests an order transferring the infringing domain lawrankseo.com to Plaintiff and an order permanently enjoining Defendant from infringing on its mark in the future. (Pl.'s Mot. at 12; Pl.'s Proposed Order, Dkt. No. 36 at 13-14.)
In light of Defendant's ongoing violation of the ACPA, the undersigned finds that permanent injunctive relief is appropriate with respect to any domain name that is identical or confusingly similar to Plaintiff's mark. See Verizon California Inc. v. OnlineNICInc., C 08-2832 JF (RS), 2008 WL 5352022 (N.D. Cal. Dec. 19, 2008) (citation omitted); see also Facebook, Inc. v. Banana Ads LLC, No. CV 11-03619-YGR KAW, 2013 WL 1873289, at *20 (N.D. Cal. Apr. 30, 2013), report and recommendation adopted, No. 11-CV-03619 YGR, 2013 WL 12308477 (N.D. Cal. June 24, 2013). Additionally, Defendant's infringing domain is confusingly similar and was created in bad faith. Accordingly, the infringing domain should be transferred to Plaintiff.
To the extent that Plaintiff seeks to permanently enjoin Defendant from infringing on its mark in the future, the ongoing nature of the infringement also renders that relief appropriate. Yelp Inc. v. Catron, 70 F.Supp.3d 1082, 1101 (N.D. Cal. 2014).
ii. Statutory Damages
Next, Plaintiff seeks $2,000,000 in statutory damages pursuant to 15 U.S.C. § 1117(c). (Pl.'s Mot. at 12.) Plaintiff may recover statutory damages of “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.” 15 U.S.C. § 1117(c)(1). Pursuant to § 1117(c)(2), however, if the court determines that the infringement was willful, a defendant may recover a maximum of $2,000,000 per mark infringed.
Here, Plaintiff argues that Defendant's actions were willful and therefore subject to 15 U.S.C. § 1117(c). “Willfulness can be established by evidence of knowing conduct or by evidence that the defendant acted with ‘an aura of indifference to plaintiff's rights'-in other words, that the defendant willfully blinded himself to facts that would put him on notice that he was infringing another's trademarks, having cause to suspect it.” Philip Morris USA Inc. v. Liu, 489 F.Supp.2d 1119, 1123 (C.D. Cal. 2007) (citations omitted). An allegation of willful trademark infringement is deemed true on default. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008).
While Defendant is subject to the enhanced statutory damages because its conduct was willful, the $2,000,000 award requested by Plaintiff would be a windfall. See 15 U.S.C. § 1117(c)(2) (The award must be in an amount that “the court considers just.”). “District courts have discretion in determining the amount of statutory damages, subject only to the statutory minimum and maximum.” Yelp Inc., 70 F.Supp.3d at 1101-02 (citations omitted). The Court should, however, award damages in trademark infringement cases that are sufficient to deter future infringement. See Playboy Enters., Inc., v. Baccarat Clothing Co., 692 F.2d 1272, 1274-75 (9th Cir.1982).
Plaintiff relies on Philip Morris in support of its request for the enhanced statutory maximum of $2,000,000.00. (Pl.'s Mot. at 14.) In Philip Morris, a district court awarded the statutory maximum of $1,000,000 for each of two separate trademark infringements by the defendant, for a total award of $2,000,000.00 where the defendant transported and unloaded counterfeit cigarettes and was willfully ignorant that the cigarettes infringed upon the plaintiff's trademark. Philip Morris, 489 F.Supp.2d at 1122-24. Absent in the cited order, however, was the extent of the defendant's specific conduct. Yelp Inc., 70 F.Supp.3d at 1102. In that case, the infringing defendant imported 52,150 cartons of counterfeit cigarettes in September 2003. Id. (citing Default Judgment at 2, Philip Morris USA, Inc. v. Liu, No. 05-CV-9015 (C.D. Cal.
The statutory maximum provided for in 15 U.S.C. § 1117(c)(2) was doubled in 2008 from $1,000,000.00 to $2,000,000.00. Prioritizing Resources and Organization for Intellectual Property Act of 2008, PL 110-403 (Oct. 13, 2008.)
August 7, 2006), ECF No. 29.) Moreover, an accomplice was indicted by a federal grand jury for the importation and distribution of an additional 106,450 cartons of counterfeit cigarettes. Yelp, Inc., 70 F.Supp.3d at 1102 (citing Default Judgment at 2, Philip Morris USA, Inc. v. Liu, No. 05-CV-9015 (C.D. Cal. August 7, 2006), ECF No. 29.) Thus, the $2,000,000 statutory damages award in Phillip Morris bore a plausible relationship to its actual damages. This is not the case here.
A standard carton of cigarettes contains 10 packs, so the defendant imported 521,500 counterfeit packs of cigarettes.
a. Trademark Infringement
The undersigned is more persuaded by the damages calculations in Yelp Inc., where, on default judgment, Yelp was awarded $45,000 in statutory damages under 15 U.S.C. § 1117(c) for the use of three of its marks. See 70 F.Supp.3d at 1104 (defendant used multiple marks in connection with websites used to sell fake Yelp reviews). Here, Defendant uses the LAWRANK mark on its website. Using the Yelp calculation, the undersigned recommends that Plaintiff be awarded $10,000 for the use of the LAWRANK mark on the lawrankseo.com website. Yelp, Inc., 70 F.Supp.3d at 1104.
b. ACPA
In assessing damages under § 1125(d), the Court is persuaded by the elaborate damages formula in Facebook, Inc. v. Banana Ads LLC, which was an ACPA case that separately assessed damages for 11 different default defendants engaged in various degrees of cybersquatting. See 2013 WL 1873289, at *20-23. As applicable here, the formula assessed a base statutory damages award of $5,000 per infringing domain, plus an additional $10,000 in damages per domain after any multipliers for correctly spelling the mark alongside common words. Id. at *16. Here, unlike in Banana Ads, Defendant is providing a similar service as Plaintiff and, since the filing of this complaint, the infringing domain redirects users to https://www.attorneymarketinghub.com/. The Court notes that the infringing domain uses the correctly spelled mark alongside SEO, which is a service that Plaintiff and Defendant appear to both provide. The fact that Defendant provides a similar service, and that the domain now purposefully redirects the infringing domain to a new website is particularly egregious and is grounds for a larger multiplier than was employed in Banana Ads. In light of Defendant's maliciousness, the undersigned recommends the imposition of a 10 times multiplier. Thus, the undersigned recommends that Plaintiff be awarded $50,000 for the infringing domain after the multiplier, plus an additional $10,000 for correctly spelling LawRank in the domain alongside SEO, for an award of $60,000.
While SEO is an abbreviation rather than a common word, it is a marketing term used in Plaintiff's industry, so the undersigned finds instructive the Banana Ads damages formula.
c. Total Statutory Damages
Taken together, the undersigned recommends that Plaintiff be awarded a total of $70,000 in statutory damages under § 1117(c), which should adequately compensate Plaintiff for the damages alleged, and coupled with an injunction, deter Defendant and others from engaging in similar behavior.
B. Attorneys' Fees and Costs
Finally, Plaintiff argues that it should be awarded attorneys' fees and costs in this matter under § 1117(a). (Pl.'s Mot. at 15-16; Pl.'s Suppl. Br. at 2.) Courts award attorneys' fees under the Lanham Act in “exceptional cases,” pursuant to 15 U.S.C. §1117(a), which exist if a defendant's infringement is willful. See Rio Props., Inc. V. Rio Int'l Interlink, 284 F.3d 1007, 1023 (9th Cir. 2002) (“While the term ‘exceptional' is not defined in the statute, attorneys' fees are available in infringement cases where the acts of infringement can be characterized as malicious, fraudulent, deliberate, or willful.”)
Section 1117(a), however, only applies when a plaintiff seeks the recovery of actual damages. See 15 U.S.C. § 1117(a). Here, Plaintiff is seeking statutory damages pursuant to § 1117(c), and an election to receive statutory damages, rather than actual damages, precludes an award of attorneys' fees. K and N Engineering, Inc. v. Bulat, 510 F.3d 1079, 1082 (9th Cir.2007) (district court abused its discretion by awarding attorneys' fees where plaintiffs sought statutory damages under § 1117(c)); see also Yelp Inc., 70 F.Supp.3d at 1104 (recommending the denial of attorneys' fees and costs because they are precluded by § 1117(c).) Plaintiff's request for costs should be denied because the recovery of costs is also unavailable. See Yelp Inc., 70 F.Supp.3d at 1104.
Accordingly, the undersigned recommends that Plaintiff's request for attorneys' fees and costs be denied.
V. CONCLUSION
For the reasons set forth above, the Court RECOMMENDS that the motion for default judgment and permanent injunction be GRANTED IN PART AND DENIED IN PART, as follows:
A. Defendant, its officers, agents, servants, employees, and attorneys, and all persons in active concert or participation with any of them, be permanently enjoined from:
i. Registering, using, trafficking in, or benefiting from Internet domain names that incorporate the LAWRANK mark or incorporate words, numbers, or symbols that, collectively or in isolation, are confusingly similar to the LAWRANK mark;
ii. Engaging in any infringing acts involving the LAWRANK mark;
iii. Using, advertising, marketing or selling goods and/or services marked with the Infringing LAWRANKSEO.COM Trademarks; and
iv. Inducing, encouraging, causing, materially contributing to, or aiding and abetting any other person or entity to do the acts described in subparagraphs (i) - (iii) above.
B. Pursuant to 15 U.S.C. §1125(d), the domain name registrar shall transfer the domain name www.lawrankseo.com to Plaintiff within 21 days of LawRank LLC sending by email and overnight mail a copy of this order to the current domain name registrar.
C. Plaintiff should be awarded statutory damages in the amount of $70,000.
Additionally, the Court recommends that Plaintiff's request for attorneys' fees and costs be denied.
Finally, no later than 3 days from the date of this report and recommendation, Plaintiff is instructed to serve Defendant with a copy by any means reasonably calculated to provide actual notice, and file proof of service to that effect. Any party may file objections to these recommendations within 14 days of being served with a copy. See 28 U.S.C. § 636(b); See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); N.D. Civil L.R. 72-3. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. IBEW Local 595 Trust Funds v. ACS Controls Corp., No. C-10-5568, 2011 WL 1496056, at *3 (N.D. Cal. Apr. 20, 2011).
IT IS SO RECOMMENDED.