United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
Presently before the Court is Plaintiff's Motion for Award of Attorneys' Fees, Costs and Damages (#80). Defendants filed a response in opposition (#81) to which Plaintiff replied (#83).
I. Procedural Background
On February 13, 2012, Plaintiff Automobili Lamborghini ("Lamborghini") and Defendants entered a Settlement Agreement in this trademark infringement and unfair competition case. Defendants operate a restaurant, retail shop, and automobile gallery at the Palazzo Hotel and Casino, Las Vegas. In accord with the settlement terms, on February 21, 2012, this Court entered a Consent Injunction and Order Approving Consent Injunction (#36)(the "Injunction" or the "Order"). Pursuant to the plain terms of the Injunction, Defendants, their officers, managers, members, principals, agents, employees, servants, successors, licensees, assigns and attorneys, and all those persons or entities in active concert or participation with or controlled by them, became permanently restrained, enjoined and forbidden from:
a) using Lamborghini's Marks, any colorable imitations thereof, or any marks confusingly similar thereto. Lamborghini's Marks were identified by United States Patent and Trademark Office ("USPTO") registration numbers and embedded graphically in the Injunction (#36 at p. 2);
b) using the "Dal Toro Mark, " any colorable imitations thereof, or any marks confusingly similar thereto. Defendants were ordered to take all necessary and required steps to deregister, remove, withdraw, revoke, expressly abandon and cancel of record the Dal Toro Mark (including as Serial Nos. 77282895 and 85376658) and any pending applications with the USPTO. The Dal Toro Mark was graphically displayed in the Injunction itself (#36 at p.3, ¶ 1):
c) using any and all signage or logos bearing the Dal Toro Mark or Lamborghini's Marks, including, but not limited, in: the Dal Toro Il Ristorante Italiano, Dal Toro Exotic Car Showroom and Dal Toro Merchandise Gallery located in The Palazzo Resort Hotel and Casino located in LasVegas, NV; the website domain www.daltoro.com; and any Dal Toro Restaurant or establishment irrespective of location, including those located in Curacao and Miami, FL (#36 at p. 3, ¶ (c));
d) future manufacture, sale, use offering, advertising or distribution of any and all items bearing the Dal Toro Mark, including but not limited to: business cards, staff shirts, merchandise, accessories, bottled water, hats, glasses, napkins, aprons and any other goods, bearing the Dal Toro Mark (#36 at p. 4, ¶ (d)); and
e) manufacturing, selling, using, offering, advertising or distributing any good, service or product using any simulation, reproduction, counterfeit, copy or colorable imitation of any or all of Lamborghini's Marks. (#36 at p. 4, ¶ (g)).
The Injunction also required that Defendants destroy any and all remaining inventory bearing the Dal Toro Mark within five (5) days. (#36 at p. 4, ¶ (e)). Defendants were further restrained from taking any action which may tend or actually lead the trade or the public, or individual members thereof, to mistakenly believe, or that would indicate or suggest that Defendants or any of their managers or members or principals or any of its related or affiliated entities are in any way supported, affiliated, authorized, owned, operated, sponsored by, licensed or endorsed by Lamborghini or any Lamborghini authorized dealership. (#36 at p. 4, ¶ (f)].
Finally, Defendants were restrained from engaging in any activity constituting unfair competition with Lamborghini, or constituting an infringement of any or all of Lamborghini's Marks, or of Lamborghini's rights in, or to use or exploit, any or all of Lamborghini's Marks or engage in any activity that deceives the public and/or the trade, including, without limitation, palming-off or the use of design elements and designations associated with, Lamborghini or Lamborghini's Marks or cause Lamborghini's Marks to be diluted. (#36 at p. 4, ¶ (h)). The Injunction also provided that in an action to enforce the agreement the prevailing party was entitled to its attorneys' fees, costs and expenses. The Injunction concluded with full retention of jurisdiction:
This Court shall retain jursidiction over the Parties to enforce the terms of the Parties' Settlement Agreement and Defendants' compliance with this Injunction. Either party may enforce same by motion to this Court.
(#36 at p. 5) [Emphasis added].
On April 13, 2012, Plaintiff filed a motion to enforce the settlement agreement. After substantial briefing, an evidentiary hearing held on February 20, 2013, and subsequent post-hearing briefing, the Court granted the motion to enforce on September 24, 2013. The Court noted that Defendants' violations were minimal, but that Defendants' indifference to correcting the violations warranted a finding of contempt and awarded damages in accordance with the Lanham Act. ...