IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DECKERS OUTDOOR CORPORATION, )

)

Plaintiff, )

)

v. ) No. 12 C 377

)

DOES 1-100 and DOES 101-500, ) Judge Ronald A. Guzman

)

Defendants. ) Magistrate Judge Finnegan

REPORT AND RECOMMENDATION

Plaintiff Deckers Outdoor Corporation (“Deckers”) is known throughout the United

States and elsewhere as a source of high quality footwear products, including the UGG

brand of premium sheepskin footwear. In this lawsuit, Deckers claims that Does 1-100 and

Does 101-500 (“Defendants”), who are individuals and business entities residing in China

or other foreign jurisdictions, operate commercial websites targeting Illinois residents with

offers to sell counterfeit versions of Deckers’ UGG products. Deckers contends that

Defendants utilize a variety of domain names set up by fictitious registrants (the “Accused

Domain Names”), and create websites that incorporate copyright-protected images and

product descriptions in order to mislead Illinois consumers into believing that they are

purchasing genuine UGG products.

Deckers has filed a four-count Complaint alleging that Defendants’ actions constitute

trademark infringement, counterfeiting and false designation of origin in violation of the

Lanham Act, 15 U.S.C. §§ 1114 and 1125(a), cyberpiracy in violation of the

Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d), and deceptive

practices in violation of the Illinois Uniform Deceptive Trade Practices Act (“UDTPA”), 815

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ILCS 510 et seq. On January 27, 2012, the district judge granted Deckers’ ex parte 

application for entry of (1) a sealed temporary restraining order (“TRO”), (2) a domain name

transfer order, (3) an asset restraining order, (4) an expedited discovery order, and (5) an

order authorizing service of process by e-mail and electronic publication. Thereafter, the

district judge referred the matter to this Court for a Report and Recommendation on

Deckers’ request to convert the TRO into a preliminary injunction. 

Defendants were served with notice of these proceedings, including the motion for

a preliminary injunction and the hearing date, in the manner authorized by the district judge.

(Gaudio Decl., Doc. 22-1 ¶ 2). No defendant appeared at the preliminary injunction hearing

or submitted any written objection to the motion. Based on its review of the briefs and

extensive exhibits submitted by Deckers, as well as the proposed Order, this Court 

recommends that the district judge grant Deckers’ motion.

DISCUSSION

A party seeking a preliminary injunction “must show that it has (1) no adequate

remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2)

some likelihood of success on the merits.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th

Cir. 2011). If the moving party satisfies these threshold conditions, then “the district court

weighs the factors against one another, assessing whether the balance of harms favors the

moving party or whether the harm to the nonmoving party or the public is sufficiently

weighty that the injunction should be denied.” Id. The greater the likelihood that the

moving party will succeed on the merits of its claims, the less harm it must show in relation

to the harm the nonmoving party will suffer if the preliminary injunction is granted. Girl 

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Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S. of Am., Inc., 549 F.3d 1079, 1086

(7th Cir. 2008); F.T.C. v. American Tax Relief LLC, 751 F. Supp. 2d 972, 983 (N.D. Ill.

2010). For this reason, the Court first examines the merits of Deckers’ claims before

turning to the issues of irreparable injury and the balance of harms.

A. Likelihood of Success on the Merits

1. Trademark Claims

A defendant is liable for trademark infringement and counterfeiting under the

Lanham Act if it, “without the consent of the registrant, uses in commerce, any

reproduction, copy, or colorable imitation of a registered mark in connection with the sale,

offering for sale, distribution, or advertising of any goods . . . which such use is likely to

cause confusion, or to cause mistake or to deceive.” 15 U.S.C. § 1114(1). Section 43(a)

of the Lanham Act further imposes liability upon a defendant who “on or in connection with

any goods or services, . . . uses in commerce any . . . false designation of origin, false or

misleading description of fact, or false or misleading representation of fact, which is likely

to cause confusion, or to cause mistake, or to deceive as to the . . . origin, sponsorship, or

approval of his or her goods . . . by another person. 15 U.S.C. § 1125(a)(1). A defendant

violates the UDTPA by, among other things, (1) passing off goods as those of another, (2)

causing likelihood of confusion or of misunderstanding as to the source, sponsorship,

approval, or certification of goods, or (3) causing likelihood of confusion or of

misunderstanding as to affiliation, connection, or association with another. 815 ILCS

510/2(a).

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Deckers’ Lanham Act and UDTPA claims all involve the same elements. See

Packaging Supplies, Inc. v. Harley-Davidson, Inc., No. 08 C 400, 2011 WL 1811446, at *5

(N.D. Ill. May 12, 2011); Spex, Inc. v. Joy of Spex, Inc., 847 F. Supp. 567, 579 (N.D. Ill.

1994). To establish a prima facie case of infringement or false designation of origin,

Deckers must show that it has a distinctive mark warranting protection as a trademark, and

that “the challenged mark is likely to cause confusion among consumers.” Facebook, Inc.

v. Teachbook.com LLC, __ F. Supp. 2d __, 2011 WL 4449686, at *7 (N.D. Ill. 2011) (citing

Barbecue Marx, Inc. v. 551 Ogden, Inc., 235 F.3d 1041, 1043 (7th Cir. 2000));

Morningware, Inc. v. Hearthware Home Prods., Inc., 673 F. Supp. 2d 630, 634 (N.D. Ill.

2009). “[T]he ultimate test is whether the public is likely to be deceived or confused by the

similarity of the marks . . . Whether we call the violation infringement, unfair competition or

false designation of origin, the test is identical – is there a likelihood of confusion?” 

Neopost Industrie B.V. v. PFE Int’l, Inc., 403 F. Supp. 2d 669, 684-85 (N.D. Ill. 2005)

(quoting Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 780 (1992)).

Deckers clearly has a distinctive mark warranting protection as U.S. Trademark

Registration No. 3,050,925, and the company has never licensed Defendants to use the

mark in any form. (Evert-Burks Decl., Doc. 10 ¶ 3; Gaudio Decl., Doc. 11 ¶ 9). In

determining whether consumers are likely to be confused by Defendants’ marks, the Court

considers: “(1) the similarity between the marks in appearance and suggestion; (2) the

similarity of the products; (3) the area and manner of concurrent use; (4) the degree and

care likely to be exercised by consumers; (5) the strength of the plaintiff’s mark; (6) any

actual confusion; and (7) the intent of the defendant to ‘palm off’ his product as that of 

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another.” AutoZone, Inc. v. Strick, 543 F.3d 923, 929 (7th Cir. 2008). No one factor is

dispositive, but the similarity of the marks, actual confusion, and the defendant’s intent are

“particularly important.” Id. (citing Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456,

462 (7th Cir. 2000).

Deckers has submitted extensive documentation showing that Defendants are

selling counterfeit versions of UGG products that are virtually identical to those sold by

Deckers, at only slightly below standard retail prices. (Gaudio Decl., Doc. 11, Exs. 1 and

2). Both Deckers and Defendants advertise and sell their products over the Internet,

targeting consumers looking for UGG merchandise. Those consumers are diverse with

varying degrees of sophistication, and they are likely to have difficulty distinguishing

between the real and counterfeit UGG products. Indeed, it appears that Defendants are

intentionally trying to induce consumers looking for genuine products to purchase fake

ones instead. In that regard, Defendants use the UGG mark in many of their Accused

Domain Names, such as cheapuggboots4sale.com and clearanceuggs-boots.com, and

they advertise products that look almost exactly like UGG footwear and bear the UGG logo. 

(Gaudio Decl., Doc. 11, Exs. 1 and 2). Deckers does not have evidence of actual

consumer confusion, but that is not required to prove that a likelihood of confusion exists,

particularly given the compelling evidence that Defendants are trying to “palm off” their

goods as genuine Deckers products. CAE, Inc. v. Clean Air Engineering, Inc., 267 F.3d

660, 685 (7th Cir. 2001).

Viewing the evidence as a whole, the Court believes that Deckers is likely to

establish a prima facie case of trademark infringement and false designation of origin 

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under the Lanham Act and the UDTPA sufficient to support the entry of a preliminary

injunction.

2. Cyberpiracy

The ACPA addresses “cybersquatting,” or “the bad faith registration of domain

names with intent to profit from the goodwill associated with the trademarks of another.” 

Vulcan Golf, LLC v. Google Inc., 726 F. Supp. 2d 911, 915 (N.D. Ill. 2010) (quoting Solid

Host, NL v. Namecheap, Inc., 652 F. Supp. 2d 1092, 1099 (C.D. Cal. 2009)). 

Cybersquatters “register well-known marks to prey on customer confusion by misusing the

domain name to divert customers from the mark owner’s site to the cybersquatter’s own

site.” Id. (quoting Solid Host, 652 F. Supp. 2d at 1100). To state a claim under the ACPA,

Deckers must show that “(1) it had a distinctive or famous mark at the time the domain

name was registered, (2) the defendant[s] registered, trafficked in, or used a domain name

that is identical or confusingly similar to plaintiff’s mark, and (3) the defendant[s] had a bad

faith intent to profit from that mark.”1

 MasterCard Int’l Inc. v. Trehan, 629 F. Supp. 2d 824,

830 (N.D. Ill. 2009) (quoting Flentye v. Kathrein, 485 F. Supp. 2d 903, 914 (N.D. Ill. 2007)).

1 The ACPA identifies nine factors to consider in assessing bad faith intent,

including: (1) the person’s intent to divert consumers from the mark owner’s online location

to a site accessible under the domain name that could harm the goodwill represented by

the mark; (2) the person’s provision of material and misleading false contact information

when applying for the registration of the domain name; (3) the person’s registration or

acquisition of multiple domain names which the person knows are identical or confusingly

similar to marks of others; and (4) the extent to which the mark incorporated in the person’s

domain name is not distinctive or famous. 15 U.S.C. § 1125(d)(1)(B)(i). A court is not

limited to considering only the enumerated factors, and “the most important grounds for

finding bad faith ‘are the unique circumstances of th[e] case.’” Virtual Works, Inc. v.

Volkswagen of America, Inc., 238 F.3d 264, 268 (4th Cir. 2001) (quoting Sporty’s Farm

L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489, 499 (2d Cir. 2000)).

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There can be no dispute that Deckers’ UGG trademark is famous with footwear

consumers worldwide, as evidenced by the many celebrities who wear the products, and

by news reports indicating that “UGG boots” is a heavily searched-for apparel item in online

searches. (Evert-Burks Decl., Doc. 10 ¶ 11). In addition, Defendants register, traffic in and

use domain names that are identical or confusingly similar to that famous mark. As noted,

many of Defendants’ Accused Domain Names directly incorporate the UGG mark, and

Defendants use copyrighted photographs of Deckers’ products in order to sell counterfeit

versions of them. These facts manifest a bad faith intent to profit from the UGG mark, and

the Court finds that Deckers is likely to succeed on the merits of its ACPA claim.

B. Irreparable Harm/Inadequate Remedy at Law

Having determined that Deckers is likely to succeed on the merits of its claims, the

Court next considers whether the company will suffer irreparable harm without a

preliminary injunction, and whether it has an adequate remedy at law. There is a “wellestablished presumption that injuries arising from Lanham Act violations are irreparable,

even absent a showing of business loss.” Abbott Labs. v. Mead Johnson & Co., 971 F.2d

6, 16 (7th Cir. 1992). See also AM General Corp. v. DaimlerChrysler Corp., 311 F.3d 796,

805 (7th Cir. 2002) (confirming “the law’s presumption that trademark dilution or

infringement threatens irreparable injury for which there is no adequate remedy at law.”). 

“This willingness to find irreparable harm in trademark cases stems from an understanding

that the ‘most corrosive and irreparable harm attributable to trademark infringement is the

inability of the victim to control the nature and quality of the defendants’ goods. Even if the

infringer’s products are of high quality, the plaintiff can properly insist that its reputation 

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should not be imperiled by the acts of another.’” 7-Eleven, Inc. v. Spear, No. 10 C 6697,

2011 WL 830069, at *6 (N.D. Ill. Mar. 3, 2011) (quoting International Kennel Club of

Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1092 (7th Cir. 1988)).

Deckers has submitted evidence establishing that it has spent substantial amounts

of money to market the UGG brand in the United States and other countries. The UGG

brand has earned numerous awards and accolades, and is widely popular among

consumers and celebrities alike. (Evert-Burks Decl., Doc. 10 ¶¶ 5, 7, 12). Magazines and

newspapers have written stories about the success of the UGG brand, and Deckers

regularly promotes its products with extensive, worldwide advertising campaigns. (Id. ¶

12). The Court finds that Defendants’ unauthorized use of the UGG trademark threatens

to irreparably harm the reputation and goodwill Deckers has developed with respect to its

high-quality, and highly-sought-after products. In 2011 alone, Deckers discovered over

17,000 domain names, including those operated by Defendants, that link to websites

offering to sell counterfeit UGG footwear. This risks diluting the mark and undermining the

many years Deckers has spent “nurturing its business.” Ty, Inc. v. Jones Group, Inc., 237

F.3d 891, 903 (7th Cir. 2001).

C. Balance of Harms/Public Interest

In balancing the harms between Deckers and Defendants, the Court employs a

“sliding scale approach: ‘[t]he more likely the plaintiff is to win, the less heavily need the

balance of harms weigh in his favor.’” Girl Scouts of Manitou Council, 549 F.3d at 1086

(quoting Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984)). 

Here, Deckers has a strong likelihood of prevailing on the merits, leaving Defendants with 

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a “proportionately small chance of showing that they have any right to sell or market UGG

footwear.” Deckers Outdoor Corp. v. Liyanghua, No. 11 C 7970, Doc. 37, at 6. As a result,

Defendants have little basis for arguing that they will suffer any harm by virtue of the

preliminary injunction. As one court has explained, “one who adopts the marks of another

for similar goods acts at his own peril, since he has no claim to the profits or advantages

thereby derived.” Burger King Corp. v. Majeed, 805 F. Supp. 2d 994, 1006 (S.D. Fla.

1992).

The public interest also weighs in favor of entering a preliminary injunction. See Girl

Scouts of Manitou Council, 549 F.3d at 1086 (the balancing process should encompass

“any effects that granting or denying the preliminary injunction would have on nonparties.”). 

In trademark infringement cases such as this, “the public interest is served by [an]

injunction because enforcement of the trademark laws prevents consumer confusion.” Eli

Lilly & Co., 233 F.3d at 469. The public certainly has an interest in not being confused or

defrauded into buying counterfeit UGG products they believe to be real.

In sum, Deckers is likely to succeed on the merits of its claims, and the balance of

harms weighs decidedly in its favor. On these facts, Deckers should prevail on its motion

for a preliminary injunction.

D. The Specific Equitable Relief Sought Remains Appropriate

Deckers asks that the TRO entered by the district judge on January 27, 2012 be

converted into a preliminary injunction so that Defendants remain enjoined from the

manufacture, importation, distribution, offer for sale, and sale of products bearing

counterfeits of the UGG Trademark during the pendency of this litigation. Pursuant to the 

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TRO, Deckers caused dozens of PayPal accounts associated with Defendants’ websites

to be frozen. (Gaudio Decl., Doc. 22-1 ¶ 2). Deckers also served the TRO on the relevant

domain name registries, requesting transfer of the Defendant names. (Id.). Deckers

argues that a preliminary injunction is necessary so that the domain names remain in

Deckers’ control and the Defendants’ PayPal and other accounts remain frozen until

completion of these legal proceedings. Otherwise, Defendants would be able to continue

to sell counterfeit UGG products and could move monies from such sales to offshore

accounts.

The Court agrees that, under all the circumstances presented, the preliminary

injunction that Deckers seeks is necessary and appropriate. Indeed, Deckers has obtained

identical relief in other substantially similar proceedings in this district. See Deckers

Outdoor Corp. v. Does 1-55, No. 11 C 10 (N.D. Ill. 2011); Deckers Outdoor Corp. v.

Liyanghua, No. 11 C 7970 (N.D. Ill. 2011). This Court has reviewed the proposed

preliminary injunction Order and recommends that the district judge sign the version

attached as Exhibit A.2

CONCLUSION

For the reasons stated here, this Court recommends that the district judge grant

Deckers’ Motion for Preliminary Injunction [21].

Pursuant to Fed. R. Civ. P. 72(b), specific written objections to this Report and

Recommendation may be served and filed within fourteen (14) days from the date that this

2 The voluminous attachments to the Order identifying the Accused Domain

Names and their registrants are not attached to this Report and Recommendation but

instead will be hand delivered to the district judge who must enter the actual order.

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order is served. Failure to file objections with the Honorable Ronald A. Guzman within the

specified time will result in a waiver of the right to appeal all findings, factual and legal,

made by this Court in the Report and Recommendation.

ENTER:

Dated: February 9, 2012 __________________________

SHEILA FINNEGAN

United States Magistrate Judge

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Exhibit A 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DECKERS OUTDOOR CORPORATION, 

 Plaintiff,

 v. 

DOES 1-100 and DOES 102-500, 

 Defendants.

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Case No. 1:12-cv-00377 

Honorable Ronald A. Guzman 

Magistrate Judge Sheila Finnegan 

ORDER

 THIS CAUSE being before the Court on Plaintiff Deckers Outdoor Corporation’s 

(“Deckers”) Motion for a Preliminary Injunction, and this Court having heard the evidence 

before it hereby GRANTS Plaintiff’s Motion for a Preliminary Injunction in its entirety and 

orders that: 

1. Defendants, their officers, agents, servants, employees, attorneys, confederates, and all 

person acting for, with, by, through, under or in active concert with them be preliminary 

enjoined and restrained from: 

a. using Deckers’ UGG Trademark or any reproductions, counterfeit copy or colorable 

imitation thereof in any manner in connection with the distribution, advertising, 

offering for sale, or sale of any product that is not a genuine Deckers’ UGG branded 

Case: 1:12-cv-00377 Document #: 30 Filed: 02/09/12 Page 12 of 17 PageID #:747
product or not authorized by Deckers to be sold in connection with Deckers’ UGG 

Trademark;

b. passing off, inducing, or enabling others to sell or pass off any product as a genuine 

UGG branded product or any other product produced by Deckers, that are not 

Deckers’ or not produced under the authorization, control or supervision of Deckers 

and approved by Deckers for sale under Deckers’ UGG Trademark; 

c. committing any acts calculated to cause consumers to believe that Defendants’ 

products are those sold under the authorization, control or supervision of Deckers, or 

sponsored or approved by, or connected with Deckers; 

d. further infringing Deckers’ UGG Trademark and damaging Deckers’ goodwill; 

e. otherwise competing unfairly with Deckers in any manner; 

f. shipping, delivering, holding for sale, transferring or otherwise moving, storing, 

distributing, returning, or otherwise disposing of, in any manner, products or 

inventory not manufactured by or for Deckers, nor authorized by Deckers to be sold 

or offered for sale, and which bear any Deckers’ UGG Trademark or any 

reproductions, counterfeit copy or colorable imitation thereof; 

g. using, linking to, transferring, selling, exercising control over, or otherwise owning 

the Defendant Domain Names or any other domain name that is being used to sell 

counterfeit UGG products; and 

h. operating and/or hosting websites at the Defendant Domain Names and any other 

domain names registered or operated by Defendants that are involved with the 

distribution, advertising, offering for sale, or sale of any product that is not a genuine 

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Deckers’ UGG branded product or not authorized by Deckers to be sold in connection 

with Deckers’ UGG Trademark. 

2. The domain name registries for the Defendant Domain Names, namely VeriSign, Inc., 

Neustar, Inc., Afilias Limited and the Public Interest Registry, within five (5) business 

days of receipt of this Order, shall change the registrar of record for the Defendant 

Domain Names to MarkMonitor or a registrar of Deckers’ selection until further order by 

this Court, and that the domain name registrars take any steps necessary to transfer the 

Defendant Domain Names to MarkMonitor or a registrar of Deckers’ selection until 

further order by this Court.

3. Those in privity with Defendants and those with notice of the injunction, including any 

Internet search engines, web hosts, domain-name registrars and domain name registries 

that are provided with notice of the injunction, cease facilitating access to any and all 

websites through which Defendants engage in the sale of counterfeit and infringing goods 

using the UGG Trademark. 

4. Discovery herein by Deckers may continue by providing actual notice, pursuant to 

subpoena, e-mail or otherwise, of this Order to any of the following: 

a. Defendants, their agents, servants, employees, confederates, attorneys, and any 

persons acting in concert or participation with them; 

b. any banks, savings and loan associations, payment processors or other financial 

institutions, including without limitation, PayPal, or other merchant account 

providers, payment providers, third party processors, credit card associations (e.g., 

MasterCard and VISA), which receive payments or hold assets on Defendants’ 

behalf; or 

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c. any third party service providers, including without limitation the online B2B selling 

platforms, Internet service providers, backend service providers, web designers, 

sponsored search engine or ad-word providers, shippers, domain name registrars and 

domain name registries who have provided services for Defendants. 

5. Any third party providing services in connection with any Defendants, Defendants 

websites at the Defendant Domain Names or other websites operated by Defendants 

including without limitation, Internet Service Providers (“ISP”), back-end service 

providers, web designers, sponsored search engine or ad-word providers, banks, merchant 

account providers including PayPal, third party processors and other payment processing 

services, shippers, domain name registrars and domain name registries (collectively 

“Third Party Providers”) shall within five (5) business days after receipt of such notice, 

provide to Deckers copies of all documents and records in such person or entity’s 

possession or control relating to: 

a. The identities and addresses of Defendants, their agents, servants, employees, 

confederates, attorneys, and any persons acting in concert or participation with them 

and the locations and identities of Defendants’ operations, including without 

limitation, identifying information associated with Defendants’ Websites, Defendant 

Domain Names and financial accounts; 

b. Defendants’ websites;

c. The Defendant Domain Names or any domain name registered by Defendants; and

d. Any financial accounts owned or controlled by Defendants, including their agents, 

servants, employees, confederates, attorneys, and any persons acting in concert or 

participation with them, including such accounts residing with or under the control of 

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any banks, savings and loan associations, payment processors or other financial 

institutions, including without limitation, PayPal, Western Union, or other merchant 

account providers, payment providers, third party processors, credit card associations 

(e.g., MasterCard and VISA).

6. Defendants and any persons in active concert or participation with them shall be 

temporarily restrained and enjoined from transferring or disposing of any money or other 

of Defendants’ assets until further order form this Court. 

7. Any banks, savings and loan associations, payment processors or other financial 

institutions, including without limitation PayPal, for any Defendant or any of Defendants’ 

websites, shall immediately locate all accounts connected to Defendants or Defendants’ 

websites and that such accounts shall be temporarily restrained and enjoined from 

transferring or disposing of any money or other of Defendants’ assets until further order 

form this Court. 

8. Deckers may provide notice of these proceedings and service of process to Defendants by 

electronic mail at the e-mail addresses identified in Schedule A to Deckers’ Complaint 

and electronic publication at the Defendant Domain Names which are transferred to 

Deckers’ control; such notice shall be made immediately upon Deckers’ receiving notice 

that the Third Party Providers have fully complied with the requirements of this Order. 

9. Schedule A and Exhibits 1 and 2 attached to the Declaration of Justin R. Gaudio are 

unsealed.

10. Any Defendants that are subject to this Order may appear and move to dissolve or modify 

the Order on two days’ notice to Deckers or on shorter notice as set by this Court. 

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DATED _____________________ ____________________________________ 

 U.S. District Court Judge Ronald A. Guzman 

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