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Hakkasan LV, LLC v. VIP, UNLTD, LLC

United States District Court, D. Nevada

October 27, 2014

HAKKASAN LV, LLC, et al., Plaintiffs,
VIP, UNLTD, LLC, et al., Defendants

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[Copyrighted Material Omitted]

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For Hakkasan LV, LLC, Hakkasan Limited, Plaintiffs: Laraine M I Burrell, LEAD ATTORNEY, Lauri S. Thompson, Greenberg Traurig, LLP, Las Vegas, NV; Shauna L. Welsh, LEAD ATTORNEY, Nancy Ayala, Greenberg Traurig, Las Vegas, NV.

Andrew Rockwell, Defendant, Pro se, Las Vegas, NV.

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Presently before the court is a motion for summary judgment filed by Hakkasan LV, LLC and Hakkasan Limited (hereinafter " plaintiffs" ). (Doc. # 35). To date, defendant Andrew Rockwell (hereinafter " defendant" ) has not responded to plaintiffs' motion for summary judgment.

Also before the court is plaintiffs' motion for partial summary judgment on the issue that defendant Rockwell is personally liable for the judgment entered against VIP, a sole proprietorship. (Doc. # 34). To date, defendant has not responded to plaintiffs' motion for partial summary judgment.

I. Background

This case involves claims for cybersquatting, trademark infringement, counterfeiting, unfair competition, and copyright infringement under federal statutes. Along with the federal claims, plaintiffs have also alleged pendent claims for common law trademark infringement, state deceptive trade practices, fraud, and intentional interference with prospective economic advantage.

Hakkasan is a famous restaurant and nightlife venue with multiple locations around the world. Hakkasan owns the mark, HAKKASAN, in connection with restaurant, bar, and nightclub services. Hakkasan owns a federal trademark registration (U.S. Reg. No. 3,789,248) for bar and restaurant services and a trademark registration (U.S. Reg. No. 4,458,604) for nightclubs and nightclub services, such as reservations and booking.

Hakkasan opened its first location in 2001, its first location in the United States in 2009, and its Las Vegas location in 2012. Plaintiffs have used the HAKKASAN marks in connection with advertising and promoting its restaurant and nightclub services around the world since 2001. Plaintiffs have spent millions of dollars to advertise and promote the HAKKASAN marks in print, broadcast media, and on the internet through their website.

Based on its federal trademark registrations and extensive use, Hakkasan owns the exclusive right to use its HAKKASAN marks in connection with restaurant, bar, and nightclub services. The uniqueness of Hakkasan, along with the extensive advertising and promotion, has resulted in the global distinctiveness of the HAKKASAN name and marks.

Defendants registered the domain name, created a website linked to the name, and claimed to be " your source for the most up to date developments about your favorite Vegas mega-club." The website contained plaintiffs' federally registered trademark and logo, together with images and other materials stolen directly from plaintiffs' own website.

On the website, defendants claimed they were authorized to offer services to the public on behalf of Hakkasan. Defendants knowingly and willfully offered and sold counterfeit services, including access to the nightclub, VIP bottle services, and event services. Plaintiffs did not license or approve of defendants' use of the HAKKASAN marks in any way, nor did plaintiffs approve of defendants' sale of the services on his website in false association with the HAKKASAN marks.

On October 30, 2013, plaintiffs filed this action against defendants seeking an injunction and damages arising out of defendants'

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use of plaintiffs' trademarks and copyrights. After defendants were served with the summons and first amended complaint on January 2, 2014, defendant VIP failed to respond within the required time. The clerk of court then entered default against VIP on all claims set forth in plaintiffs' complaint. Plaintiffs subsequently filed a motion for default judgment and permanent injunction against VIP, which this court granted on June 12, 2014.

Plaintiffs now request that the court enter summary judgment against defendant Rockwell. Plaintiffs also request a permanent injunction against defendant Rockwell, to prevent future infringement, and for all of the rights in the <> domain name to be transferred to plaintiffs.[1]

II. Legal Standard

Pursuant to Local Rule 7-2(d), an opposing party's failure to file a timely response to any motion constitutes the party's consent to the granting of the motion and is proper grounds for dismissal. LR 7-2(d). A court cannot, however, grant a summary judgment motion merely because it is unopposed, even where its local rules might permit it. Henry v. Gill Indus., Inc., 983 F.2d 943, 949-50 (9th Cir. 1993); see also Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) (a district court cannot grant a motion for summary judgment based merely on the fact that the opposing party failed to file an opposition).

Even without an opposition, the court must apply standards consistent with Federal Rule of Civil Procedure 56, determining if the moving party's motion demonstrates that there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry, 983 F.2d at 950; see also Clarendon Am. Ins. Co. v. Jai Thai Enters., LLC, 625 F.Supp.2d 1099, 1103 (W.D. Wash. 2009).[2]

The Federal Rules of Civil Procedure provide for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that " there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is " to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. " When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

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By contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that " the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

III. Discussion

For summary judgment to be appropriate, plaintiffs must prove that they showed all essential elements of the claims. If plaintiffs succeed in this, the burden would then shift to defendant to show that a genuine dispute of material fact exists. Because defendant failed to respond to plaintiffs' motion, the ...

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