MEMORANDUM AND ORDER Plaintiff Allstar Marketing Group, LLC (“Plaintiff”) brings this action against thirty-nine individuals and/or businesses who, using accounts with an online marketplace platform (“User Accounts”), manufacture, import, export, advertise, market, promote, distribute, display, offer for sale and/or otherwise deal in products to United States consumers, including those located in the State of New York (collectively, “Defendants”). See Dkt. No. 14 (“Complaint” or “Compl.”). Plaintiff alleges trademark infringement, trademark counterfeiting, false designation of origin, passing off and unfair competition under the Lanham Act, 15 U.S.C. §§1114, 1116(d), 1117(b)-(c), 1125; copyright infringement under the Copyright Act, 17 U.S.C. §501(a); and related claims under state and common law. See generally Compl. Defendants have not appeared in the action. Plaintiff now moves for default judgment and a permanent injunction against Defendants pursuant to Federal Rule of Civil Procedure 55(b)(2). Dkt. No. 48. Plaintiff also seeks individual statutory damages awards pursuant to 15 U.S.C. §1117(c) against each of the thirtynine defaulting defendants, and service of asset restraining notices pursuant to CPLR §5222. For the following reasons, the motion is denied without prejudice to renewal. BACKGROUND By defaulting, Defendants have admitted the well-pleaded factual allegations of the Complaint. See City of New York v. Mickalis Pawn Shop, LLC 645 F.3d 114,137 (2d Cir. 2011). Plaintiff is a leading developer, producer, marketer, and distributor of quality, innovative consumer products that it promotes and sells throughout the United States and the world. One of Plaintiff’s most popular and successful products is Happy Nappers, a soft plush pillow toy that when unzipped, expands into a comfy sleep sack. Compl. 8. The Happy Nappers Products typically retail for between $39.99 to $120.99. Id. 9. Plaintiff is a limited liability company with its principal place of business in New York. Id. 5. Plaintiff sells its Happy Nappers Products through major U.S. retailers such as Wal-Mart, Target and Bed Bath & Beyond, as well as through its retail customers’ websites and a network of international distributors, among other channels of trade. Id. 7. Plaintiff was granted the exclusive license from Jay At Play International Hong Kong Limited d/b/a Jay At Play (“Jay At Play”) to use the Happy Nappers Marks including U.S. Trademark Registrations for “HAPPY NAPPERS” for goods in Class 20, 24 and 28. Id. 10. Plaintiff was also granted the exclusive license to use Happy Nappers Works related to the Happy Nappers Products. Id. 12. The success of the Happy Nappers Products is due in part to the marketing and promotional efforts of Plaintiff, including advertising and promotion through television, retailer websites, print and Internet-based advertising. Id. 14. Plaintiff’s success is also due to its use of highquality designs, materials, and processes in making Happy Nappers Products. Id. 15. Additionally, Plaintiff owes a substantial amount of the success of the Happy Nappers Products to its consumers and the word-of-mouth buzz that its consumers have generated. Id. 16. Due to Plaintiff’s efforts, the public has become familiar with the Happy Nappers Products and associates them exclusively with Plaintiff. Id. 17. As a result of this association, Plaintiff has acquired a valuable reputation and goodwill among the public. Id. 18. No one other than Jay At Play, Plaintiff, and Plaintiff’s authorized licensees and distributors are authorized to manufacture, import, export, advertise, offer for sale, or sell any goods utilizing the Happy Nappers Marks or Happy Nappers Works. Id. 19. Defendants use accounts on an online marketplace and e-commerce platform, eBay.com (“eBay”), that allows manufacturers and other third-party merchants, such as Defendants, to advertise, distribute, offer for sale, sell, and ship retail products originating from China directly to consumers worldwide and specifically to consumers residing in the United States, including New York. Id. 20. eBay is one of the most popular e-commerce platforms in the world and is currently the sixth most popular website in the United States. Id. 21. The Complaint broadly accuses each Defendant of violations in connection with selling or offering for sale “Counterfeit Products”: trademark counterfeiting, trademark infringement, false designation of origin, passing off, and unfair competition under the Lanham Act, 15 U.S.C. §§1114, 1116(d), 1117(b)-(c), 1125; copyright infringement under the Copyright Act, 17 U.S.C. §501(a); and unfair competition under New York common law. Compl. 1. Counterfeit Products are defined broadly to be products bearing or used in connection with the Happy Nappers Marks and/or Happy Nappers Works, and/or products in packaging and/or containing labels and/or hang tags bearing the Happy Nappers Marks and/or Happy Nappers Works, and/or bearing or used in connection with marks and/or artwork that is confusingly or substantially similar to the Happy Nappers Marks and/or artwork that is confusingly or substantially similar to the Happy Nappers Marks and/or Happy Nappers Works and/or products that are substantially similar to Happy Nappers Products. Compl. at ii. Defendants’ Counterfeit Products are nearly indistinguishable from Plaintiff’s Happy Nappers Products, only with minor variations that no ordinary consumer would recognize. Id. 32. Plaintiff alleges that through their user accounts and merchant storefronts, Defendants offer for sale and/or sell Counterfeit Products and target and ship such products to consumers located in the United States, including New York. Id. 25. Plaintiff further alleges that Defendant accepts payment for Counterfeit Products in U.S. Dollars through various payment processing services and that each Defendant provides shipping of Counterfeit Products into the United States, including to customers located in New York, and/or has actually shipped Counterfeit Products into the United States, including to customers located in New York. Id. 34. Defendants are not, and have never been, authorized by Plaintiff or any of its authorized agents, authorized licensees, or authorized distributors to sell or copy Happy Nappers Products or to use the Happy Nappers Marks or Happy Nappers Works. Id. 31. The Complaint provides helpful illustrations of three particular Counterfeit Products offered for sale by three of the Defendants. Id.
