United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is plaintiff Golden Nugget of Las Vegas' ("GNLV") motion for final judgment and damages. (Doc. # 46). Defendants T. Warren Enterprises Inc., Great Vibe Entertainment, Inc., Tracie Pastore, and Yabachushyanei Bennett, (collectively "defendants") filed a response. (Doc. # 49).
Plaintiff GNLV is a Nevada corporation that operates the "Golden Nugget" resort hotel casinos in Las Vegas, Nevada and Laughlin, Nevada. Since the Golden Nugget opened in 1946, plaintiff and its predecessors-in-interest have continuously used the Golden Nugget marks in connection with their hotels, casinos, and related services.
Defendant T. Warren Enterprises, Inc., f/k/a Golden Nugget Arcade, Inc., is an Ohio corporation that formerly operated a casino in Canton, Ohio. Defendant Great Vibe Entertainment, Inc. is an Ohio Corporation that uses d/b/a "Golden Nugget" and operates the establishment at issue in this case.
This case stems from a previous lawsuit concerning trademark infringement. The parties reached a settlement agreement on December 28, 2012. Plaintiff later filed this suit alleging that defendants breached the settlement agreement. This court found that defendants breached the 2012 settlement agreement by continuing to use the "Golden Nugget" mark. (Doc. # 45).
Settlement agreements typically contain a damages provision. However, here, in exchange for defendants' promise to immediately and permanently adhere to all terms of the settlement agreement, plaintiff agreed to voluntarily dismiss all claims. (Doc. # 46). The relevant portion of the settlement stated that defendants, and their successors in interest, would never use "Golden Nugget" or a similar name in relation to gaming services. (Doc. # 46).
Following the settlement, plaintiff alleges that defendants applied for a zoning permit under the insignia "Great Vibe Entertainment (DBA) The Nugget Arcade" (The Nugget was later crossed out). (Doc. 46). Further, on May 20, 2013 the IRS confiscated 222 slot machines from defendants' illegal gaming arcade. Following the IRS raid, an article from a Canton, Ohio newspaper ran a headline stating the name "Golden Nugget" several times. (Doc. # 46). A picture in the article showed a door with the name "The Nugget" written on it. ( Id. ).
Around July 17, 2013, the United States filed a complaint of forfeiture against defendants. The United States identified "Golden Nugget bank accounts" into which defendants deposited funds, despite the terms of the settlement. Thus, plaintiff requests that this court award damages under trademark infringement remedies and actual damages under the Lanham Act for breach of the settlement agreement.
Plaintiff now moves for final judgment and order for damages on the following claims: (1) trademark infringement under 15 U.S.C. § 1114; (2) unfair competition under 15 U.S.C. § 1125; (3) common law trademark infringement; and (4) breach of contract. Plaintiff's motion seeks a permanent injunction and damages in favor of the four claims for which it received summary judgment.
Plaintiff filed a twenty page motion. Defendants, whom have since gone out of business as a result of the IRS raid, filed a three page response.
Plaintiff seeks $12, 116, 000.00 in damages, $102, 491.29 in attorney's fees and costs, and $300, 000.00 in statutory damages under the Lanham Act. See 15 U.S.C. § 1117(a). Plaintiff seeks a total of $12, 518, 491.29. Defendant counters that principles of equity demand that the court enter judgment in favor of plaintiff for $1. (Doc. # 49).
a. Actual damages for breach of settlement
Under the Lanham Act, plaintiff can request actual damages in the form of (1) defendant's profits, (2) any damages sustained by plaintiff, and (3) the costs of the action. 15 U.S.C. § 1117(a). "In assessing profits the plaintiff shall be required to prove defendant's sales ...