ToLife Technologies Pty Ltd et al v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-60547-CIV-SINGHAL
TOLIFE TECHNOLOGIES PTY LTD
and MOSHE MAOR,
Plaintiffs,
v.
THE INDIVIDUAL, CORPORATION, LIMITED
LIABILITY COMPANY, PARTNERSHIP,
AND/OR UNINCORPORATED ASSOCIATION
IDENTIFIED ON SCHEDULE A,
Defendant.
/
ORDER ON MOTION FOR ENTRY OF FINAL DEFAULT JUDGMENT
THIS CAUSE comes before the Court upon the Plaintiffs’, ToLife Technologies Pty
Ltd (“ToLife”) and Moshe Maor (“Maor”) (collectively “Plaintiffs”), Motion for Entry of Final
Default Judgment (“Motion”) dated July 2, 2025 (DE [30]).
Plaintiffs filed their Request for Entry of Clerk’s Default on May 30, 2025, against
the Defaulting Defendant in this matter (DE [27]). A Clerk’s Default was entered against
said Defendant on June 2, 2025 (DE [28]), as Defendant failed to appear, answer, or
otherwise respond to the Amended Complaint, despite having been served. 	On July 2,
2025, pursuant to the methods of service authorized in the Court’s Order dated April 8,
2025 (DE [13]), and in compliance with the Court’s Order on Default Final Judgment
Procedure (“Order”) (DE [29]), Plaintiffs’ Motion for Entry of Final Default Judgment was
served on the Defaulting Defendant in this matter, via email to the email address provided
by the Third Party Marketplace Platform. Plaintiffs further effected service of process on
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the Defaulting Defendant via publication by posting a true and accurate copy of the Motion
for Entry of Final Default Judgment on Plaintiffs’ Notice Website http://tolifetechnologies-
cases.com/case-25-cv-60547.html. Plaintiffs now seek entry of default judgment against
the Defaulting Defendant identified in the attached Schedule A (“Defaulting Defendant”).
The Court has carefully considered the Motion, the record in this case, the applicable law,
and is otherwise fully advised. For the following reasons, Plaintiffs’ Motion is GRANTED.
I. 	INTRODUCTION
Plaintiffs sued Defendant for trademark counterfeiting and infringement under the
Lanham Act, 15 U.S.C. § 1114 and design patent infringement pursuant to 35 U.S.C. §§
et seq. Plaintiff ToLife is the owner and lawful assignee of all rights, title, and interest in
and to the trademark covered by U.S. Trademark Registration No. 5,993,261 (the “V-
COMB Trademark”), and Plaintiff Maor owns all exclusive rights to the ToLife Patent
covered by U.S. Patent No. D858,877 S (the “V-COMB Patent”) (collectively, the “V-
COMB Registrations”). 	The Amended Complaint alleges that Defendant is improperly
advertising, 	marketing, 	and/or 	selling 	unauthorized 	and 	noncompliant 	products 	by
reference to marks identical or substantially identical to the V-COMB Trademark and that
embody the design(s) depicted in the V-COMB Patent (the “Counterfeit Products”) into
the Southern District of Florida, by operating the Defendant’s Internet-based e-commerce
store operating under the Seller ID identified on the Schedule “A” attached to this Order
(the “Seller ID”).
Plaintiffs further assert that Defaulting Defendant’s unlawful activities have caused
and will continue to cause irreparable injury to Plaintiffs because Defaulting Defendant’s
wrongful conduct has already caused Plaintiffs to suffer irreparable harm resulting from
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the loss of their lawful patent rights to exclude others from manufacturing, distributing,
selling, offering for sale, and/or importing the Counterfeit Products as well as the loss of
sales stemming from the infringing acts.
In their Motion, Plaintiffs seek the entry of default final judgment against the
Defaulting Defendant for trademark counterfeiting and infringement and design patent
infringement. 	Plaintiffs 	further 	request 	that 	the 	Court 	(1) 	enjoin 	the 	Defaulting
Defendant’s 	unlawful 	use 	of 	Plaintiffs’ trademark and patent; 	(2) award Plaintiffs
damages; and (3) instruct any third-party financial institutions in possession of any funds
restrained or held on behalf of the Defaulting Defendant to transfer these funds to
Plaintiffs in partial satisfaction of the award of damages.
Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Court is authorized to
enter a final judgment of default against a party who has failed to plead in response to a
complaint. “[A] defendant’s default does not in itself warrant the court entering a default
judgment.” 	DIRECTV, Inc. v. Huynh, 318 F. Supp. 2d 1122, 1127 (M.D. Ala. 2004)
(quoting Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th
Cir. 1975)). Because a defendant is not held to admit facts that are not well pleaded or
to admit conclusions of law, the court must first determine whether there is a sufficient
basis in the pleading for the judgment to be entered. 	See id.; see also Buchanan v.
Bowman, 820 F.2d 359, 361 (11th Cir. 1987) (“[L]iability is well-pled in the complaint, and
is therefore established by the entry of default …”). 	Upon a review of Plaintiffs’
submissions, there is a sufficient basis in the pleading for the default judgment to be
entered in favor of Plaintiffs.
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II. 	BACKGROUND1
Plaintiffs are the owners and lawful assignees of all right, title, and interest in and
to the V-COMB Registrations, which were duly and legally issued by the United States
Patent and Trademark Office. See (Exs.1 and 2 to Amended Complaint (DE [6-1, 6-2])).
V-COMB Products, which bear and/or embody the V-COMB Trademark and/or the V-
COMB Patent, are known for their innovative design and superior quality. As a result, the
V-COMB Products are widely recognized and exclusively associated by consumers, the
public, and the trade as being products sourced from Plaintiffs. See (Decl. of Moshe Maor
in Support of Pls.’ Ex Parte Mot. for Entry of Temporary Restraining Order, Including a
Temporary Injunction, a Temporary Asset Restraint, and Expedited Discovery (DE [11-
1]), ¶ 7) (“Maor Decl.”).
The Defaulting Defendant, through its Internet based e-commerce store operating
under the Seller ID identified on the Schedule “A” to this Order, has advertised, promoted,
offered for sale, sold, and/or imported products that appear to be genuine V-COMB
Products, but which are actually inferior and unauthorized imitations of the V-COMB
Products. See (Maor Decl. (DE [11-1]) ¶¶ 8–15).
Plaintiffs have submitted sufficient evidence showing Defaulting Defendant has
infringed, at least, one or more of the claims in the V-COMB Trademark and Patent. See
(Maor Decl. (DE [11-1]) ¶¶ 8–15); see also (Ex. 1 to Decl. of Leigh Salomon in Support of
Plaintiffs’ Motion for Entry of Final Default Judgment (“Salomon Decl.”) (DE [30-1])). The
Defaulting Defendant is not now, nor has it ever been, authorized or licensed to use the
V-COMB Trademark or the V-COMB Patent. See (Maor Decl. (DE [11-1]) ¶ 17).
1 The factual background is taken from Plaintiffs’ Amended Complaint (DE [6]), Plaintiffs’ Motion for Entry
of Final Default Judgment (DE [30]), and supporting evidentiary submissions.
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As part of their ongoing investigation regarding the sale of Counterfeit Products,
Plaintiffs investigated access the Defaulting Defendant’s Internet-based e-commerce
store operating under the Seller ID. Plaintiffs attempted to initiate orders from the Seller
ID for the purchase of products, all infringing, or suspected of infringing, the V-COMB
Trademark and V-COMB Patent, and requested each product to be shipped to an address
in the Southern District of Florida. See (Maor Decl. (DE [11-1]) ¶¶ 13-14). Accordingly,
Defendant’s Counterfeit Products are being promoted, advertised, offered for sale, sold,
and/or imported by Defendant within this district and throughout the United States. See
Id. at ¶¶ 12–15). 	A representative for Plaintiffs personally analyzed the infringing items
wherein orders were attempted via each of the Seller ID by reviewing the e-commerce
store operating under the Seller ID, or the detailed webpage captures and images of the
items bearing and/or embodying the V-COMB Trademark and Patent, and concluded the
products were non-genuine, unauthorized V-COMB Products. See id.
III. 	DISCUSSION
A. 	Jurisdiction Over Plaintiffs’ Claims
This Court has original subject matter jurisdiction over the trademark infringement
claims in this action pursuant to the provisions of the Lanham Act, 15 U.S.C. § 1051 et
seq., 28 U.S.C. § 1338(a)–(b), and 28 U.S.C. § 1331. 	This Court has original subject
matter jurisdiction over the patent infringement claims arising under the patent laws of the
United States pursuant to 35 U.S.C. § 1 et seq., 28 U.S.C. § 1338(a), and 28 U.S.C. §
1331. 	Personal jurisdiction exists over Defendant in this Judicial District pursuant to
Florida 	Statutes 	§§ 	48.193(1)(a)(1)-(2) 	and 	48.193(1)(a)(6). 	Defendant 	regularly
conducts, transacts, and/or solicits business in Florida and in this Judicial District, and/or
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derives substantial revenue from business transactions in Florida and in this Judicial
District and/or otherwise avails themselves of the privileges and protections of the laws
of the State of Florida such that this Court’s assertion of jurisdiction over Defendant does
not offend traditional notions of fair play and substantial justice, and/or Defendant’s illegal
counterfeiting and infringing actions caused injury to Plaintiffs in Florida and in this
Judicial District such that Defendant should reasonably expect such actions to have
consequences in Florida and this judicial District. See (Am. Compl. (DE [6]) ¶¶ 10–12).
B. 	Liability
1. 	Trademark Counterfeiting and Infringement Under the Lanham Act
(15 U.S.C. § 1114)
Section 32 of the Lanham Act, 15 U.S.C. § 1114, provides liability for trademark
infringement if, without the consent of the registrant, a defendant uses “in commerce any
reproduction, counterfeit, copy, or colorable imitation of a registered mark: which is likely
to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1114(1)(a). In order
to prevail on their trademark infringement claim under Section 32 of the Lanham Act,
Plaintiffs must demonstrate that (1) they had prior rights to the mark at issue; and (2)
Defaulting Defendant adopted a mark or name that was the same, or confusingly similar
to Plaintiffs’ trademark, such that consumers were likely to confuse the two. 	Planetary
Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 (11th Cir. 2001) (footnote and
citations omitted).
The well-pled factual allegations of Plaintiffs’ Amended Complaint properly allege
the elements for each of the claims described above. See (DE [6]). Moreover, the factual
allegations 	in 	Plaintiffs’ 	Amended 	Complaint 	have 	been 	substantiated 	by 	sworn
declarations and other evidence and establish Defendant’s liability under each of the
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claims asserted in the Amended Complaint. 	Accordingly, default judgment pursuant to
Federal Rule of Civil Procedure 55 is appropriate.
2. 	Design Patent Infringement Pursuant to 35 U.S.C. § 289
Plaintiffs have established a substantial likelihood of success on the merits for their
design patent infringement claim. To prevail on their patent infringement claim, Plaintiffs
must demonstrate that the accused product infringes a patented design. 	Design patent
infringement requires a showing that the accused design is substantially the same as the
claimed design. The criterion is deception of the ordinary observer, such that one design
would be confused with the other. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F. 3d 665,
679 (Fed. Cir. 2008). Under this test, the central inquiry is whether an “ordinary observer,”
who is familiar with the prior art, would find the overall appearance of the accused product
to be “substantially the same” as the overall appearance of the patented design. 	Id. at
678; see also Amini Innovation Corp. v. Anthony Cal., Inc., 439 F .3d 1365, 1372 (Fed.
Cir. 2006); Pride Fam. Brands, Inc. v. Carl’s Patio, Inc., 992 F. Supp. 2d 1214, 1224 (S.D.
Fla. 2014) (citing Gorham Mfg. Co. v. White, 81 U.S. 511, 528 (1871) (“If, in the eye of an
ordinary observer, giving such attention as a purchaser usually gives two designs, the
resemblance between the 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.”). 	An infringing product need
not be an exact copy of the patented design, and Defendant cannot escape infringement
by introducing minor variations into an otherwise copycat product. 	Egyptian Goddess,
543 F. 3d at 670.
Plaintiff Maor is the inventor and owner of the V-COMB Patent, and the Defaulting
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Defendant has without authorization used and offered for sale Plaintiffs’ V-COMB Patent.
The well-pled factual allegations of Plaintiffs’ Amended Complaint, including the specific
allegations identified in the previous paragraphs, properly allege the elements for design
patent infringement. Moreover, the factual allegations in Plaintiffs’ Amended Complaint,
substantiated by the evidence submitted, conclusively establish Defaulting Defendant’s
liability for design patent infringement asserted in the Amended Complaint.
C. 	Injunctive Relief
Pursuant to the Lanham Act, a district court is authorized to issue an injunction
“according to the principles of equity and upon such terms as the court may deem
reasonable,” to prevent violations of trademark law. 	See 15 U.S.C. § 1116(a). 	Indeed,
“[i]njunctive relief is the remedy of choice for trademark and unfair competition cases,
since there is no adequate remedy at law for the injury caused by a defendant’s continuing
infringement.” Burger King Corp. v. Agad, 911 F. Supp. 1499, 1509-10 (S.D. Fla. 1995)
(citing Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1180 (9th Cir. 1988)).
Moreover, even in a default judgment setting, injunctive relief is available. 	See e.g.,
PetMed Express, Inc., 336 F. Supp. 2d at 1222-23. 	Defaulting Defendant’s failure to
respond or otherwise appear in this action makes it difficult for Plaintiffs to prevent further
infringement absent an injunction. See 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.”). Moreover, even in a default judgment setting, injunctive
relief is available. 	See e.g., PetMed Express, Inc. v. MedPets.Com, Inc., 336 F. Supp.
2d 1213, 1222-23 (S.D. Fla. 2004).
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Permanent injunctive relief is appropriate where a plaintiff demonstrates that (1) it
has suffered irreparable injury; (2) there is no adequate remedy at law; (3) the balance of
hardship favors an equitable remedy; and (4) the public’s interest would not be harmed by
the issuance of an injunction. See eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391
(2006). Plaintiffs have carried their burden on each of the four factors.
First, 	Plaintiffs 	are 	irreparably 	harmed. 	As 	alleged 	and 	supported 	by 	the
declarations previously submitted, Defaulting Defendant’s acts of infringement have
eroded Plaintiffs’ market for the V-COMB line of products and impacted Plaintiff ToLife’s
goodwill. 	See (Maor Decl. (DE [11-1]) ¶¶ 26–30). 	Indeed, the Defaulting Defendant’s
Counterfeit Products have weakened Plaintiff ToLife’s credibility and reputation, resulting
in a loss of unquantifiable future sales. Id. ¶ 27. Moreover, the Counterfeit Products are
in direct competition with V-COMB Products. 	As a result, Plaintiffs’ market position is
being irreparably damaged by Defaulting Defendant’s continued infringement. 	See
Presidio Components, Inc. v. Am. Tech. Ceramics Corp., 702 F.3d 1351, 1363 (Fed. Cir.
2012) (“Direct competition in the same market is certainly one factor suggesting strongly
the potential for irreparable harm without enforcement of the right to exclude.”).
The second factor favors a permanent injunction as well. 	Because Defaulting
Defendant has failed to appear, Plaintiffs do not have the ability to discover the full extent
of monetary damages they could recover from Defaulting Defendant to compensate
Plaintiffs for Defaulting Defendant’s infringement, thus, there is no adequate remedy at
law. Enpat, Inc. v. Budnic, 2011 WL 1196420, at *4 (M.D. Fla. Mar. 29, 2011) (defendant’s
refusal to appear in the case “reinforces the inadequacy of a remedy at law and the
irreparability of the harm absent an injunction”). Additionally, Plaintiffs have no adequate
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remedy at law so long as Defaulting Defendant continues to use the V-COMB Trademark
and Patent in connection with the operation of the e-commerce store under the Seller ID
because Plaintiffs will have no control of the quality of the goods that could be associated
with V-COMB Products. 	An award of money damages alone will not cure the injury to
Plaintiffs’ reputation and goodwill that will result if Defaulting Defendant’s infringing
actions are allowed to continue.
The third factor—the balance of harm—also weighs in Plaintiffs’ favor and warrants
the equitable remedy of a permanent injunction. 	Plaintiffs have a significant interest in
enforcing their trademark and patent rights and in fact spend significant resources
protecting and enforcing their intellectual property. (Maor Decl., (DE [11-1]) ¶¶ 8, 11, 25).
Enjoining Defaulting Defendant is critical to prevent hardship to Plaintiffs from loss of
sales 	and/or 	injury 	to 	Plaintiffs’ 	reputation 	and 	goodwill. 	By 	contrast, 	Defaulting
Defendant faces no hardship if it is prohibited from the infringement of Plaintiffs’
trademark and/or patent, which are illegal acts.
Finally, the public interest supports the issuance of a permanent injunction against
Defaulting Defendant to prevent consumers from being misled by Defaulting Defendant’s
counterfeit products. 	See Nike, Inc. v. Leslie, 1985 WL 5251, at *1 (M.D. Fla. June 24,
1985) (“[A]n injunction to enjoin infringing behavior serves the public interest in protecting
consumers from such behavior.”). 	The Court’s broad equity powers allow it to fashion
injunctive relief necessary to stop Defaulting Defendant’s infringing activities. See, e.g.,
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (“Once a right and
a violation have been shown, the scope of a district court’s equitable powers to remedy
past wrongs is broad.”); United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724
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(1944) (“Equity has power to eradicate the evils of a condemned scheme by prohibition
of the use of admittedly valid parts of an invalid whole.”).
Defaulting Defendant has created an Internet-based infringement scheme in which
it is profiting from the deliberate misappropriation of Plaintiffs’ rights. Unless the listings
and images are permanently removed, and the infringing goods destroyed, Defaulting
Defendant will be free to continue infringing Plaintiffs’ intellectual property with impunity
and will continue to defraud the public with its illegal activities.
D. 	Damages for Trademark Infringement and Counterfeiting
In a case involving the use of counterfeit marks in connection with a sale, offering
for sale, or distribution of products, 15 U.S.C. § 1117(c) provides that a plaintiff may elect
an award of statutory damages at any time before final judgment is rendered in the
sum of not less than $1,000.00 nor more than $200,000.00 per counterfeit mark per type
of good or service. 15 U.S.C. § 1117(c)(1). In addition, if the Court finds that Defaulting
Defendant’s counterfeiting actions were willful, it may impose damages above the
maximum limit up to $2,000,000.00 per mark per type of good or service. 15 U.S.C. §
1117(c)(2). Pursuant to 15 U.S.C. § 1117(c), Plaintiffs have elected to recover an award
of statutory damages as to Count I of the Amended Complaint.
The Court has wide discretion to determine the amount of statutory damages. See
PetMed Express, Inc., 336 F. Supp. 2d at 1219 (citing Cable/Home Commc’n Corp. v.
Network Prod., Inc., 902 F.2d 829, 852 (11th Cir. 1990)). An award of statutory damages
is appropriate despite a Plaintiffs’ inability to prove actual damages caused by a
defendant’s infringement. Under Armour, Inc. v. 51nfljersey.com, 2014 U.S. Dist. LEXIS
56475, at **22-23 (S.D. Fla. Apr. 23, 2014) (Rosenbaum, J.) (citing Ford Motor Co. v.
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Cross, 441 F. Supp. 2d 837, 852 (E.D. Mich. 2006) (“[A] successful plaintiff in a trademark
infringement case is entitled to recover enhanced statutory damages even where its
actual damages are nominal or non-existent.”)); Playboy Enters., Inc. v. Universal Tel-A-
Talk, Inc., 1998 WL 767440, at *8 (E.D. Pa. Nov. 3, 1998) (awarding statutory damages
where plaintiff failed to prove actual damages or profits). 	Indeed, Congress enacted a
statutory damages remedy in trademark counterfeiting cases because evidence of a
defendant’s profits in such cases is almost impossible to ascertain. 	See, e.g., S. Rep.
No. 104-177, pt. V § 7, at 10 (1995) (discussing purposes of Lanham Act statutory
damages); see also PetMed Express, Inc., 336 F. Supp. 2d at 1220 (statutory damages
are “[e]specially appropriate in default judgment cases due to infringer nondisclosure”)
(citations omitted). This case is no exception.
This Court may award statutory damages “without holding an evidentiary hearing
based upon affidavits and other documentary evidence if the facts are not disputed.”
Perry Ellis Int’l, Inc. v. URI Corp., No. 06-22020-CIV, 2007 WL 3047143, at *1 (S.D. Fla.
Oct. 18, 2007). 	Although the Court is permitted to conduct a hearing on a default
judgment in regard to damages pursuant to Federal Rule of Civil Procedure 55(b)(2)(B),
an evidentiary hearing is not necessary where there is sufficient evidence on the record
to support the request for damages. 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 . . . We
have held that no such hearing is required where all essential evidence is already of
record.”) (citations omitted); see also PetMed Express, 336 F. Supp. 2d at 1223 (entering
default judgment, permanent injunction and statutory damages in a Lanham Act case
without a hearing).
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Here, the allegations in the Amended Complaint, which are taken as true, clearly
establish that Defaulting Defendant intentionally copied the V-COMB Trademark for the
purpose of deriving the benefit of Plaintiffs’ world-famous reputation. 	As such, the
Lanham Act permits the Court to award up to $2,000,000.00 per infringing mark on each
type of service as statutory damages to ensure that Defaulting Defendant does not
continue their intentional and willful counterfeiting activities.
The evidence in this case demonstrates that Defaulting Defendant sold, promoted,
distributed, advertised, and/or offered for sale products bearing marks that were in fact
counterfeits 	of 	the 	V-COMB 	Trademark. 	See 	(DE 	[6]). 	Based 	on 	the 	above
considerations, Plaintiffs suggest the Court award statutory damages of $200,000.00
against the Defaulting Defendant who has infringed on Plaintiffs’ trademark. The award
should be sufficient to deter Defaulting Defendant and others from 	continuing to
counterfeit or otherwise infringe Plaintiff’ trademark, compensate Plaintiffs, and punish
Defaulting Defendant, all stated goals of 15 U.S.C. § 1117(c). 	The Court finds that this
award of statutory damages falls within the permissible statutory range under 15 U.S.C.
§ 1117(c) and is just.
E. 	Damages for Design Patent Infringement
Plaintiffs’ Amended Complaint sets forth a cause of action for design patent
infringement pursuant to the Patent Act, 35 U.S.C. § 271, 35 U.S.C. § 289, and 35 U.S.C.
§ 284. 	Plaintiffs provided as an exhibit a table calculating damages for Defaulting
Defendant’s infringement of Plaintiffs’ V-COMB Patent. See (DE [30-3]). This Court may
award statutory damages “without holding an evidentiary hearing based upon affidavits
and other documentary evidence if the facts are not disputed.” Perry Ellis Int’l, Inc. v. URI
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Corp., 2007 WL 3047143, at *1 (S.D. Fla. Oct. 18, 2007) (Moore, J.). Although the Court
is permitted to conduct a hearing on a default judgment regarding damages pursuant to
Federal Rule of Civil Procedure 55(b)(2)(B), an evidentiary hearing is not necessary
where there is sufficient evidence on the record to support the request for damages. 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 . . . We have held that no such hearing is
required where all essential evidence is already of record.” (citations omitted)). 	Here,
there is no hearing necessary, as Plaintiffs’ affidavit provides sufficient evidence on the
record to support Plaintiffs’ request for damages.
Statutory Damages. As an additional remedy for design patent infringement, the
Patent Act imposes liability on infringers of design patents “to the extent of his total profit,
but not less than $250.” 35 U.S.C. § 289. To the extent that the Defaulting Defendant’s
known total profits were less than $250 in connection with the sale of products that infringe
on the V-COMB Patent, Plaintiffs seek $250 for the infringement of the V-COMB Patent.
Lost Profits. Under 35 U.S.C. § 284, a court may “award the claimant damages
adequate to compensate for the infringement, but in no event less than a reasonable
royalty for the use made of the invention by the infringer.” 	These damages may be
increased “up to three times the amount found or assessed.” Id. In determining damages
for patent infringement, “the focus is on compensating the patentee or the plaintiff for this
injury.” 	IMX, Inc. v. E-Loan, Inc., 748 F. Supp. 2d 1354, 1361 (S.D. Fla. 2010). 	“[T]he
general rule for determining actual damages to a patentee that is itself producing the
patented item is to determine the sales and profits lost to the patentee because of the
infringement.” 	Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538, 1545 (Fed. Cir. 1995).
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Pursuant to 35 U.S.C. § 284, Plaintiffs seek to recover an award of lost profits.
Determining an award under Section 289 involves two steps: “First, [courts] identify
the ‘article of manufacture’ to which the infringed design has been applied. Second,
[courts] calculate the infringer’s total profit made on that article of manufacture.” Samsung
Elecs. Co. v. Apple, Inc., 137 S. Ct. 429, 434 (2016). The plaintiff has the initial burden
to show the article of manufacture and the defendant’s total profit on that article.
Evriholder Prods. LLC v. Simply LBS Ltd. Co., 2020 WL 7060336, at *9 (S.D.N.Y. Apr.
21, 2020) (“[A]fter a plaintiff in a patent action submits admissible evidence of an
infringer’s gross profit … it is the infringer’s burden to submit admissible evidence to
establish that other expenses and costs should be deducted from that profit.”) (citing
Nordock, Inc.v. Sys., Inc., 2017 WL 5633114, at *3 (E.D. Wisc. Nov. 21, 2017) (collecting
cases)). 	The defendant then has the burden to produce evidence as to any deductions
from the total profit identified by plaintiff (or to show the article of manufacture, if it believes
it to be different). Evriholder, 2020 WL 706036, at *9.
When calculating an infringer’s profits, courts have held in similar contexts that any
uncertainty is to be resolved against the infringer. 	See, e.g., Mishawaka Rubber &
Woolen Mfg. Co. v. S.S. Kresge Co., 316 US. 203, 206-07 (1942) (“The burden is the
infringer’s to prove that his infringement had no cash value in sales made by him. If he
does not do so, the profits made on sales of goods bearing the infringing mark properly
belong to the owner of the mark”); see also Sara Lee Corp. v. Bags of N.Y., Inc., 36 F.
Supp. 2d 161, 169 (S.D.N.Y. 1999) (citing Lous Vuitton S.A. v. Spencer Handbags Corp.,
765 F.2d 966 (2d Cir. 1985) (holding that where defendants failed to meet their burden
regarding profit calculation, a court could adopt plaintiff's proposed calculation)).
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In cases where defendants have failed to produce documents to characterize
revenue, courts have entered a profits award for the entire revenue amount. 	See, e.g.,
Chloe v. Zarafshan, 2009 WL 2956827 at *5 (S.D.N.Y. Sept. 15, 2009) (entering profits
award for the entire revenue amount even though “records offer no guidance as to how
much of this revenue stream related to [Plaintiff’s] products (as opposed to other products
not at issue in this case) or as to the costs incurred in acquiring and selling these
products.”); New York Racing Ass’n, Inc. v. Stroup News Agency Corp., 920 F. Supp.
295, 301 (N.D.N.Y. 1996) (calculating lost profits based on gross figures where defendant
offered no evidence of cost of goods sold) (citing Am. Honda Motor Co. v. Two Wheel
Corp., 918 F.2d 1060, 1063 (2d Cir. 1990) (“Ordinarily, a plaintiff that has proved the
amount of infringing sales would be entitled to that amount unless the defendant
adequately proved the amount of costs to be deducted from it.”)); WMS Gaming, Inc. v.
WPC Prods. Ltd., 542 F.3d 601, 608 (7th Cir. 2008) (placing burden on defendant to show
that certain portions of its revenues were not obtained through infringement of plaintiff’s
marks).
Indeed, under normal circumstances, it is the infringer who bears the burden of
“offering a fair and acceptable formula for allocating a given portion of overhead to the
particular infringing items in issue.” 	Sunbeam Prods., Inc. v. Wing Shing Prods. (BVI)
Ltd., 311 B.R. 378, 401 (S.D.N.Y. 2004), aff’d, 153 Fed. Appx. 703 (Fed. Cir. 2005)
(citation omitted). 	“But if the infringer has failed to produce any evidence … the Court
must determine the costs to be subtracted from revenue based on the evidence it has to
determined profits.” 	Deckers Outdoor Corp. v. ShoeScandal.com, LLC, 2013 WL
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6185203, at *2 (C.D. Cal. Nov. 25, 2013) (citing Nike, Inc. v. Wal-Mart Stores, Inc., 138
F.3d 1437, 1447 (Fed. Cir. 1998)).
Here, the V-COMB Patent claims an ornamental design for a lice comb. 	In the
case of a design for a single-component product, such as the V-COMB Patent, the
“product is the ‘article of manufacture’ to which the design has been applied.” Samsung
Elecs. Co. v. Apple, Inc., 137 S. Ct. at 367. 	Accordingly, the relevant article of
manufacture is each of the Counterfeit Products sold by Defaulting Defendant.
Since Defaulting Defendant has chosen not to participate in these proceedings,
Plaintiffs have limited available information, received from the Third Party Providers,
regarding Defaulting Defendant’s profits from the sale of Counterfeit Products. Defaulting
Defendant has failed to appear in this matter and has not produced any documents or
information (1) characterizing each of the transactions in its financial accounts, (2) other
accepted payment methods; or (3) other Internet stores that it may be operating. 	As a
result, Defaulting Defendant has not met its burden to apportion gross receipts between
infringing and not-infringing product sales, or to show any deductions. 	Since the
Defaulting Defendant has not met its burden of apportioning gross sales or showing any
deductions, and 	since 	the marketplace platforms 	did not 	provide 	any 	information
indicating lost profits, the Court awards statutory damages of $250.00 for design patent
infringement pursuant to 35 U.S.C. § 289. 	A breakdown of Plaintiffs’ requested profit
award with respect to design patent infringement under 35 U.S.C. § 284 is provided in the
chart in (Ex. 2 to the Salomon Decl. (DE [30-3]) ¶ 2).
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IV. 	CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion
(DE [30]) is GRANTED against the Defaulting Defendant listed in the attached Schedule
“A.” Final Default Judgment will be entered by separate order. The Clerk of the Court is
directed to CLOSE this case.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 28th day of
November 2025.
cc: 	counsel of record
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SCHEDULE A
DOE
No.
Defendant
Seller
Defendant Seller URL
1 	PAATM SHIVA 	https://www.amazon.com/sp?seller=A2444FN4WJOFA
1
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