UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-24022-BLOOM/Otazo-Reyes

XYZ CORPORATION, 

Plaintiff, 

v. 

THE INDIVIDUALS, PARTNERSHIPS, 

AND UNINCORPORATED ASSOCIATIONS

IDENTIFIED ON SCHEDULE “A”,

Defendants. 

________________________________/ 

ORDER ON MOTION FOR DEFAULT FINAL JUDGMENT

THIS CAUSE is before the Court upon Plaintiff Dongguan Tesmai Electronic Technology 

Co., Ltd’s Motion for Default Final Judgment against Certain Defendants, ECF No. [69] 

(“Motion”), filed on March 14, 2023. A Clerk’s Default was entered against Defendants (ECF No. 

56) listed in the attached Schedule “A” (“Defendants”).1 Defendants failed to appear, answer, or 

otherwise respond to the Amended Complaint, ECF No. [7], despite having been served. The Court 

has carefully considered the Motion, the record in this case, the applicable law, and is otherwise 

fully advised. For the following reasons, Plaintiff’s Motion is granted. 

I. Background 

Plaintiff owns one (1) United States Design Patent, No. US D891,522S, for an ornamental 

design of a toy aircraft (“Plaintiff’s Patent”). Plaintiff’s Patent has been registered with the United 

States Patent and Trademark Office (“USPTO”) and is protected from infringement under federal 

patent law. Plaintiff owns five (5) copyright registrations for 2-D visual art images (“Plaintiff’s 

1 Since the entering of the Clerk Default, certain Defendants have been dismissed. 

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Copyrights”). Each of these images is individually registered with the United States Copyright 

Office and protected from infringement under federal copyright law See ECF Nos. [7-1], [7-2]. 

Plaintiff demonstrated it is the owner of Plaintiff’s Patent by submitting copies of the U.S. Design 

Patent: 1) No. US D891,522S, Date: July 28, 2020, and by submitting copies of the U.S. 

Copyright Registrations: 1) Registration Number VA 2-313-250, Effective Date: July 14, 2022; 

2) Registration Number VA 2-313-352, Effective Date: July 14, 2022; 3) Registration Number 

VA 2-313-597, Effective Date: July 14, 2022; 4) Registration Number VA 2-313-835, Effective 

Date: July 14, 2022; 5) Registration Number VA 2-313-837, Effective Date: July 14, 2022. See 

ECF Nos. [7-1], [7-2]; see also ECF No. [8-1] at ¶¶ 6, 7. Plaintiff is the owner of all rights, title

and interest to the Plaintiff’s Patent and Plaintiff’s Copyrights (collectively “Plaintiff’s IP 

Rights”), which have been used in connection with the manufacturing, advertising, offer for sale 

and/or sale of Plaintiff’s toy aircraft. ECF No. [8-1] at ¶ 8.

Plaintiff filed the present action for patent and copyright infringement alleging that

“[w]ithout Plaintiff’s authorization or license, Defendants are manufacturing, importing, 

promoting, reproducing, offering for sale, selling, and/or distributing goods that incorporate and 

infringe Plaintiff’s IP Rights within this District through various Internet based e-commerce

stores and fully interactive commercial Internet websites[.]” ECF No. [7] ¶ 3. Defendants were 

served with the summons, Amended Complaint, Temporary Restraining Order, and notice of 

hearing filed in this case in a manner consistent with the Court’s Order Authorizing Alternate 

Service of Process, ECF No. [14]. See ECF No. [30]. Defendants have not answered or otherwise 

responded to the Amended Complaint or moved for additional time in which to do so. On 

February 27, 2023, the Clerk entered default against Defendants. See ECF No. [56].

On March 14, 2023, Plaintiff filed the instant Motion for Default Judgment, in which it 

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requests that the Court (1) grant Default Final Judgment, ( 2 ) enjoin Defendants’ unlawful use 

of Plaintiff’s IP Rights, and (3) award Plaintiff damages.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 55(b)(2) authorizes a court to enter default judgment 

against a defendant who fails to plead or otherwise defend. Fed. R. Civ. P. 55(b)(2). “[B]efore 

entering a default judgment for damages, the district court must ensure that the well-pleaded 

allegations in the complaint, which are taken as true due to the default, actually state a 

substantive cause of action and that there is a substantive, sufficient basis in the pleadings for 

the particular relief sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863 (11th Cir. 

2007) (emphasis in original). “[A] default judgment cannot stand on a complaint that fails to 

state a claim.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997) 

(citations omitted).

If the complaint states a claim, the Court must then determine the amount of damages 

and, if necessary, “may conduct hearings . . . [to] determine the amount of damages.” Fed. R. 

Civ. P. 55(b)(2)(B). However, where all the essential evidence to determine damages is on the 

paper record, an evidentiary hearing on damages is not required. See SEC v. Smyth, 420 F.3d 

1225, 1232 n.13 (11th Cir. 2005) (“Rule 55(b)(2) speaks of evidentiary hearings in a permissive 

tone . . . no such hearing is required where all essential evidence is already of record.”) (citations 

omitted); see also Evans v. Com. Recovery Sys., Inc., No. 13-61031-CIV, 2013 WL 12138555, 

at *1 (S.D. Fla. Aug. 26, 2013) (following the entry of a default judgment, damages may be 

awarded ‘without a hearing [if the] amount claimed is a liquidated sum or one capable of 

mathematical calculation,’ so long as all essential evidence is a matter of record.” (citation 

omitted)).

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III. DISCUSSION

A. Patent Infringement

A design patent is infringed when, “during the term of a patent for a design, without 

license of the owner” a defendant “(1) applies the patented design, or any colorable imitation 

thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any 

article of manufacture to which such design or colorable imitation has been applied.” 35 U.S.C. 

§ 289. “Determining whether a design patent is infringed is a two-step process. First, when 

appropriate, the design patent's claims are construed. Second, the patented design is compared to 

the accused device.” Pride Family Brands, Inc. v. Carl’s Patio, Inc., 992 F. Supp. 2d 1214, 1223-

24 (S.D. Fla. 2014) “The ‘ordinary observer’ test is the sole test for determining whether a design 

patent has been infringed.” Columbia Sportswear N. Am., Inc. v. Seirus Innovative Accessories, 

Inc., 942 F.3d 1119, 1129 (Fed. Cir. 2019) (citing Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.

3d 665, 678 (Fed. Cir. 2008)). Under this test, “if, in the eye of an ordinary observer, giving such 

attention as a purchaser usually gives, two designs are substantially the same, if the resemblance 

is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, 

the first one patented is infringed by the other.” Gorham Mfg. Co. v. White, 81 U.S. 511, 528 

(1871). “Minor differences between a patented design and an accused article's design cannot, and 

shall not, prevent a finding of infringement.” Crocs, Inc. v. Int’l Trade Com’n, 598 F.3d 1294, 

1303 (Fed. Cir. 2010) (quoting Payless Shoesource, Inc. v. Reebok Intern. Ltd., 998 F.2d 985, 

991 (Fed. Cir. 1993)) (cleaned up).

Plaintiff’s Amended Complaint alleges that it owns one (1) United States Design Patent, 

No. US D891,522S, for an ornamental design of a toy aircraft. ECF No. [7] ¶ 2; see also ECF No. 

[7-1]. Plaintiff’s Patent has been registered with the United States Patent and Trademark Office

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(“USPTO”) and is protected from infringement under federal patent law. ECF No. [7] ¶ 2. The 

Patent is valid, in full force and effect, unrevoked and uncanceled. Id. ¶ 20. Plaintiff alleges that 

Defendants offer to sell exact copies and/or confusing similar copies to the claimed designs in 

Plaintiff’s IP Rights and that Defendants’ designs “are so similar to Plaintiff’s as to be nearly 

identical such that an ordinary observer, giving such attention as a purchaser usually gives, would 

be so deceived by the substantial similarity between the designs so as to be induced to purchase 

Defendants’ product believing them to be the same design as the one protected by Plaintiff’s IP 

Rights.” Id. ¶¶ 24-25.

The Court therefore finds that Plaintiff has pleaded all the allegations necessary to state a 

claim for design patent infringement and Plaintiff is entitled to entry of final default judgment as 

to Count I of the Complaint.

B. Copyright Infringement

The Copyright Act provides in relevant part that “[a]nyone who violates any of the 

exclusive rights of the copyright owner as provided by sections 106 through 122 [17 U.S.C. 

§§ 106-122] or of the author as provided in section 106A(a) [17 U.S.C. § 106A(a)] . . . is an 

infringer of the copyright or right of the author, as the case may be.” 17 U.S.C. § 501(a). Liability 

for copyright infringement arises when a plaintiff can prove (1) ownership of a copyright, and 

(2) a defendant’s copying of the copyrighted work. See Feist Publ’ns, Inc. v. Rural Tel. Serv. 

Co., 499 U.S. 340, 361 (1991).

Plaintiff may satisfy the first prong by producing the certificates of registration, and once 

produced, the burden shifts to Defendant to demonstrate why the claim of copyright is invalid. 

See id.; 17 U.S.C. § 410(c) (noting that a “certificate of a registration made before or within five 

years after first publication of the work shall constitute prima facie evidence of the validity of 

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the copyright and the facts stated in the certificate”). The second prong, the copying element of 

an infringement claim, has two components: (1) Plaintiff must demonstrate that Defendants

copied Plaintiff’s work as a factual matter; and (2) Plaintiff must establish “substantial 

similarity” between the allegedly infringing work and the elements of the copyrighted work that 

are legally protected. Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1232-33 (11th Cir. 2010).

In the Amended Complaint, Plaintiff alleges that it has five (5) copyright registrations 

for 2-D visual art images. Each of these images is individually registered with the United States 

Copyright Office and protected from infringement under federal copyright law. ECF No. [7] ¶

2; see also ECF No. [7-2]. Those five registrations are: 1) Registration Number VA 2-313-250, 

Effective Date: July 14, 2022; 2) Registration Number VA 2-313-352, Effective Date: July 14, 

2022; 3) Registration Number VA 2-313-597, Effective Date: July 14, 2022; 4) Registration 

Number VA 2-313-835, Effective Date: July 14, 2022; 5) Registration Number VA 2-313-837, 

Effective Date: July 14, 2022. See ECF No. [7-2]. As such, the Court finds that Plaintiff was the 

owner of a valid copyright for the Work. In addition, Plaintiff alleges that Defendants copied, 

displayed, and/or prepared derivative works of Plaintiff’s Copyrighted Art through their

advertising, distributing, offering for sale, and selling of Defendants’ counterfeit copies and has 

produced documents showing such copying. ECF No. [7] ¶ 55; ECF Nos. [9-1]-[9-14]. The 

Court has viewed the 2-D visual art images copyrighted and the images published by Defendants 

and finds them to be substantially similar.

Accordingly, Plaintiff has pleaded all the required elements to state a claim for copyright 

infringement. Therefore, Plaintiff is entitled to entry of final default judgment against 

Defendants as to Count II of the Complaint.

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C. Injunctive Relief

The Patent and Copyright Acts provide that courts "may" grant injunctive relief "on such 

terms as it may deem reasonable to prevent or restrain infringement of a copyright." 17 U. S. C.

§ 502(a) and 35 U.S.C. § 283. Injunctive relief is available in a default judgment setting. See e.g., 

PetMed Express, Inc. v. MedPets.Com, Inc., 336 F. Supp. 2d 1213, 1223 (S.D. Fla. 2004). 

Defendants’ failure to respond or otherwise appear in this action makes it difficult for Plaintiff to 

prevent further infringement absent an injunction. Jackson v. Sturkie, 255 F. Supp. 2d 1096, 1103 

(N.D. Cal. 2003) (“[D]efendant’s lack of participation in this litigation has given the court no

assurance that defendant’s infringing activity will cease. Therefore, plaintiff is entitled to 

permanent injunctive relief.”).

A plaintiff seeking a permanent injunction “must demonstrate: (1) that it has suffered an 

irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to 

compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and 

defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved 

by a permanent injunction.” eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).

With regard to the first factor, “[i]n copyright cases, irreparable harm is presumed on a 

showing of a reasonable likelihood of success on the merits.” Arista Records, Inc. v. Beker 

Enterprises, Inc., 298 F.Supp.2d 1310, 1314 (S.D. Fla. 2003) (citing Micro Star v. Formgen, Inc., 

154 F.3d 1107, 1109 (9th Cir. 1998)). “And so, on a default judgment, a plaintiff’ need not show 

irreparable harm, as the default against the defendants satisfies the element of success on the 

merits.” Affordable Aerial Photography, Inc. v. Palm Beach Real Estate, Inc., 20-81307-CIV, 

2021 WL 2823270, at *6 (S.D. Fla. July 7, 2021) (quoting Arista Records, at 1314) (cleaned up). 

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The Court has already determined that the well pled allegations, accepted as true due to

Defendants’ default, are sufficient to find liability for patent infringement.

Remedies available at law are inadequate to compensate Plaintiff. “It is well-settled that, 

because the principal value of a patent is its statutory right to exclude, the nature of the patent grant 

weighs against holding that monetary damages will always suffice to make the patentee whole.”

Hybritech Inc. v. Abbott Laboratories, 849 F. 2d 1446, 1456-57 (Fed. Cir. 1988). A patent and a 

copyright holder possess “the right to exclude others from using his property.” eBay Inc., 547 U.S. 

at 392. (citing Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932)). “Not surprisingly, given the 

difficulty of protecting a right to exclude through monetary remedies that allow an infringer to use

an invention against the patentee’s wishes, historically courts have granted injunctive relief upon 

a finding of infringement in the vast majority of patent cases.” Apple Inc. v. Samsung Elecs. Co., 

Ltd., 809 F.3d 633, 638-39 (Fed. Cir. 2015) (quoting eBay Inc., at 395) (internal quotation marks 

omitted) (emphasis in original). Plaintiff has no adequate remedy at law so long as Defendants 

continue to operate the Seller IDs because Plaintiff cannot control the quality of products sold

utilizing the Plaintiff’s patent and copyrights or the manner in which Plaintiff’s IP Rights are

displayed. An award of monetary damages alone will not cure the injury to Plaintiff's reputation

and goodwill that will result if Defendants' infringing actions are allowed to continue. 

Moreover, the balance of hardships weighsin favor of granting permanent injunctive relief. Plaintiff 

faces hardship from loss of sales and his inability to control his reputation in the marketplace. By 

contrast, Defendants face no hardship if they are prohibited from the infringement of Plaintiff's

copyrights and patents which are illegal acts.

Finally, the public interest supports the issuance of a permanent injunction against 

Defendants to prevent consumers from being misled by Defendants’ unauthorized sale of products

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utilizing Plaintiff’s IP Rights. See Chanel, Inc. v. besumart.com, 240 F. Supp. 3d 1283, 1291 (S.D. 

Fla. 2016) (“[A]n injunction to enjoin infringing behavior serves the public interest in protecting 

consumers from such behavior.”). Defendants have created an Internet-based infringement scheme 

in which they are profiting from their deliberate misappropriation of Plaintiff’s rights. Unless the

listings and images are permanently removed, Defendants will be free to continue infringing 

Plaintiff’s intellectual property with impunity and will continue to defraud the public with their 

illegal activities. Therefore, the Court will enter a permanent injunction ordering all product 

listings and images displaying Plaintiff’s IP Rights to be permanently removed from Defendants’

internet stores by the applicable internet marketplace platforms.

D. Statutory Damages

Pursuant to 17 U.S.C. § 504(b), a plaintiff is entitled “to recover the actual damages 

suffered by him or her as a result of the infringement[.]” Pursuant to 17 U.S.C. § 504(c), Plaintiff 

may elect to recover statutory damages for Defendants’ infringement. In addition, pursuant to 

17 U.S.C. § 504(c)(2), the Court in its discretion may increase an award of statutory damages 

up to $150,000.00 when infringement was committed willfully. In awarding enhanced damages 

in the context of section 504(c)(2), “deterrence of future violations is a legitimate consideration” 

because “defendants must not be able to sneer in the face of copyright owners and copyright 

laws.” Cable/Home Commc’n Corp. v. Network Prods., 902 F.2d 829, 851 (11th Cir. 1990) 

(internal quotation omitted). “In interpreting section 504(c), courts have held that the statute 

vests the trial court with wide discretion to set damages within the statutory limits.” Major Bob 

Music v. Stubbs, 851 F. Supp. 475, 481 (S.D. Ga. 1994). 

Defendants, who have not appeared, control all the necessary information for a

calculation of relief under § 504(b). As a result, Plaintiff cannot calculate an amount recoverable 

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pursuant to 17 U.S.C. § 504(b). Instead, Plaintiff seeks an award of statutory damages for

Defendants’ willful infringement of plaintiff’s copyrighted works under 17 U.S.C. § 504(c)(2).

To determine whether Plaintiff is entitled to statutory damages for Defendants’ willful 

infringement, the Court must first determine if the copyright infringement was willful. Willful 

infringement occurs “when the infringer acted with ‘actual knowledge or reckless disregard for 

whether its conduct infringed upon the plaintiff’s copyright.’” Arista Records, 298 F. Supp. 2d at 

1312. “[W]illful copyright infringement under § 504(c)(2) encompasses reckless disregard of the 

possibility that one’s actions are infringing a copyright.” Yellow Pages Photos, Inc. v. Ziplocal, 

LP, 795 F.3d 1255, 1272 (11th Cir. 2015). Moreover, a court may infer that a defendant willfully 

infringed a plaintiff’s copyright because of a defendant’s default. Arista Records, at 1313 (citations 

omitted).

“Without Plaintiff’s authorization or license, Defendants are manufacturing, importing, 

promoting, reproducing, offering for sale, selling, and/or distributing goods that incorporate and 

infringe Plaintiff’s IP Rights within this District through various Internet based e-commerce

stores and fully interactive commercial Internet websites[.]” ECF No. [7] ¶ 3. Those established 

facts demonstrate that Defendants acted with reckless disregard of the fact that its conduct 

infringed upon Plaintiff’s exclusive copyright. Accordingly, Defendants’ default and the wellpled facts of the Complaint, which are admitted by Defendants’ default, establish that 

Defendants’ infringement of Plaintiff’s copyrights was willful and deliberate.

Plaintiff suggests the Court award the maximum permitted award of statutory damages 

of $150,000.00 per Defendant. This award is within the statutory range for a willful violation, and 

is sufficient to compensate Plaintiff, punish the Defendants, and deter the Defendants and others 

from continuing to infringe Plaintiff’s Copyrights.

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IV. CONCLUSION

For the reasons stated, the Court finds that Plaintiff is entitled to injunctive relief and 

statutory damages under 17 U.S.C. § 504. Accordingly, it is ORDERED AND ADJUDGED that 

Plaintiff’s Motion, ECF No. [69], is GRANTED. The Court will enter final judgment by separate 

order.

DONE AND ORDERED in Chambers at Miami, Florida, on April 4, 2023.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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