“THIS MATTER comes before us upon the Plaintiffs HYPER ICE, INC. and HYPERICE IP SUBCO, LLC’s (collectively the “Plaintiffs”) Motion for Final Default Judgment and a Permanent Injunction (the “Motion”) [ECF No. 68] dated June 17, 2024. On May 10, 2024, we granted a Temporary Restraining Order (the “TRO”) and set a preliminary injunction hearing for May 27, 2024 (which was reset for May 28, 2024). See Order Granting Ex Parte Application for Entry of Temporary Restraining Order [ECF No. 15]. On May 23, 2024, we then granted a Joint Motion to Extend Time to File Opposition to the Plaintiffs’ Motion for Preliminary Injunction [ECF No. 25] and reset the preliminary injunction hearing for June 6, 2024. See May 23, 2024, Paperless Orders [ECF Nos. 26–27]. Over the course of litigation, several Defendants have appeared, and all have since been dismissed without prejudice from the case. See generally Docket. Of the remaining Defendants—who are listed below—none have opposed the Plaintiffs’ Motion for Preliminary Injunction, and none appeared at the June 6, 2024, preliminary injunction hearing. See generally ibid. On June 11, 2024, we granted the preliminary injunction as to the Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 1 of 15 2 non-appearing Defendants. See Order Granting Application Entry of Preliminary Injunction [ECF No. 63]. The Plaintiffs filed their Request for Entry of Clerk’s Default [ECF No. 65] on June 13, 2024, against all remaining (i.e., non-appearing) Schedule A Defendants in this matter. The Clerk entered default that same day, as the remaining Defendants failed to appear, answer, or otherwise plead to the Complaint, despite having been served. See June 13, 2024, Paperless Entry [ECF No. 66]. The Schedule A Defendants that remain in the case and are now in Default are: 1 2. yunchengjingjijishukaifaqujiayingdianzishangwuyouxiangongsi /dba/ Entesi, 3. Hunandeoumenchuangyouxiangongsi /dba/ Anicedreamer, 5. Shen Zhen Shi Suo Ao Ke Ji You Xian Gong Si /dba/ SwallDirect US, 11. Foshan Morui Technology CO.,LTD /dba/ Movo Technology, 12. shenzhenshihanzhidakejiyouxiangongsi /dba/ Kanvikam Store, 13. Liu Zheng Biao /dba/ Topxin, 14. taiyuanmuhangdianzishangwuyouxiangongsi /dba/ Wintkyo-US, 15. Wenzhou Boying Packaging Co., Ltd, 16. Shenzhenshiyiranzhinengyouxiangongsi /dba/ Boriwat Wellness, 17. Zhejiang Sejoy Biomedical Co., Ltd. /dba/ Sejoy, 18. Yuantech_usa, 19. changzhou weika jianshenyongpin youxiangongsi /dba/ Rolaz Direct, 21. Uroru USA, 23. Shenzhenshiyuezhilangxinxijishuyouxiangongsi /dba/ Yuezhilang Online, 24. shenzhenshiwanbangdeyinshuakejiyouxiangongsi /dba/ YAEIY US Direct, 25. hai kou que xiang ti yu ke ji you xian gong si /dba/ Tonpe Direct, 1 The numbers preceding the names of the defaulting Defendants correspond to the row numbers as filed in the original Schedule A [ECF No. 11]. Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 2 of 15 3 25. ganzhoushiliangmaoyiyouxiangongsi /dba/ Shiliangmaoyi, 27. pingyixianzhidongshipinjingyingpu /dba/ CP-3 28. shen zhen shi sheng dao dian zi shang wu you xian gong si /dba/ Uplayteck 29. Ningbo Kaijing E-commerce Co., Ltd. /dba/ KJLAND, 30. Zhejiang OAK Technology Co., LTD /dba/ Hkoaklife, 31. PuTianshi rongxie Trading Co.Ltd /dba/ RXMYO, 32. Yongkang Lufan Technology Co., Ltd. /dba/ Health & Healthy, and 35. yongkangshihanxiangmaoyiyouxiangongsi /dba/ Nalikang. Accordingly, we have carefully considered the Motion, the record in this case, the applicable law, and are otherwise fully advised. For the following reasons, Plaintiffs’ Motion is GRANTED. I. INTRODUCTION The Plaintiffs sued the Defendants for utility patent infringement pursuant to 35 U.S.C. §§ 271. Complaint ¶¶ 16–20. The Complaint alleges that Defendants are—within the Southern District of Florida—promoting, selling, offering for sale, and importing goods into the United States that infringe U.S. Patent No. 11,857,482, by operating the Defendants’ Internet based e-commerce stores operating under each of the Seller IDs identified on the Schedule “A” attached to this Order (the “Seller IDs”). Id. at 1. The Plaintiffs further assert that the Defendants’ unlawful activities have caused and will continue to cause irreparable injury to the Plaintiffs because the Defendants’ wrongful conduct has caused the Plaintiffs to suffer irreparable harm resulting from the loss of their lawful patent rights to exclude others from promoting, selling, offering for sale, and importing goods into the United States the patented invention, as well as the loss of sales stemming from the infringing acts. Id. ¶ 20. In their Motion, the Plaintiffs request that we (1) enter judgment of infringement of the ‘482 Patent against the Defendants and in favor of the Plaintiffs; (2) enjoin the Defendants from infringing Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 3 of 15 4 the ‘482 Patent; (3) award the Plaintiffs compensatory damages for infringement of the ‘482 Patent, as well as interest thereon; (4) award the Plaintiffs their costs of this suit; (5) award the Plaintiffs increased damages in an amount not less than three times the damages assessed for Defendants’ infringement of the ’482 Patent, in accordance with 35 U.S.C. § 284; (6) declare this an exceptional case under 35 U.S.C. § 285 and award the Plaintiffs their attorneys’ fees and any other costs incurred in connection with this action; (7) award the Plaintiffs pre- and post-judgment interest; and (8) grant such further relief that we deem necessary. Id. at 6. Under FED. R. CIV. P. 55, we may grant default final judgment against the non-appearing Defendants. “[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)). Granting a motion for default judgment is within the trial court’s discretion. See Nishimatsu, 515 F.2d at 1206. Because “[t]he 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 ibid.; see also Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987) (“[L]iability is wellpled in the complaint, and is therefore established by the entry of default[.]”). Upon a review of the Plaintiffs’ submissions, it appears there is a sufficient basis in the pleadings and evidence for default judgment to be entered in favor of Plaintiffs. II. FACTUAL BACKGROUND2 The Plaintiffs are the owners and lawful assignees of all rights, title, and interest in and to the U.S. Patent No. 11,857,482, (the “Hyperice Patent”), which were duly and legally issued by the United States Patent and Trademark Office. See Patent [ECF No. 1-1]. The Plaintiffs sued the Defendants for 2 The factual background is taken from the Complaint, the Motion, and supporting evidentiary submissions. Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 4 of 15 5 utility patent infringement pursuant to 35 U.S.C. §§ 271. See generally Complaint. According to the Plaintiffs, the Defendants are promoting, selling, offering for sale, and importing goods into the United States that infringe U.S. Patent No. 11,857,482 within the Southern District of Florida by operating the Defendants’ Internet based Amazon Marketplace stores operating under each of the Seller IDs identified on the Schedule “A” attached to this Order (the “Seller IDs”). See id. ¶ 1. The Plaintiffs have submitted sufficient evidence showing each Defendant has infringed, at least, one or more of the claims in the ‘482 Patent. See Brian Arnold Decl. [ECF No. 5-1] ¶¶ 8-11; see also Claim Chart [ECF No. 5-3]. The Defendants are not now, nor have they ever been, authorized or licensed to use the ‘482 Patent. See Arnold Decl. ¶ 16. The Plaintiffs have investigated the Defendants’ Internet based e-commerce stores operating under each of the Seller IDs. See id. ¶¶ 8–11. The Plaintiffs initiated orders from each Seller ID for the purchase of various products, all infringing, or suspected of infringing, the ‘482 Patent, and requested that each product to be shipped to an address in the Southern District of Florida. See id. ¶¶ 12–13; Order Confirmations [ECF No. 5-4]. Accordingly, we find that the Defendants’ goods are being promoted, sold, offered for sale, and imported into the United States within the Southern District of Florida. III. ANALYSIS i. Jurisdiction We have subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338. We also have personal jurisdiction over the Defendants under FLA. STAT. §§ 48.193(1)(a)(1)–(2), and venue in this district is proper under 28 U.S.C. § 1391(b). Here, the Defendants direct business activities toward consumers throughout the United States, including within the State of Florida and this district, and cause harm to the Plaintiffs’ business (that also qualifies as “tortious acts”) within this jurisdiction through the Amazon e-commerce stores and the Seller IDs. See id. ¶¶ 11–14. Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 5 of 15 6 ii. Liability To establish patent infringement, a plaintiff must establish that the defendant has made, used, sold, or offered for sale a product that meets at least one of the claims of the asserted patent. See 35 U.S.C. § 271(a). The plaintiff must establish that “every limitation set forth in a claim [is] found in an accused product[.]” Becton, Dickinson & Co. v. Tyco Healthcare Group, LP, 616 F.3d 1249, 1253 (Fed. Cir. 2010) (quoting Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed. Cir. 1995)). The well-pled factual allegations in the Complaint properly allege the elements for utility patent infringement. See id. ¶¶ 16–20. Moreover, the factual allegations in the Complaint—substantiated by the evidence submitted herewith, including the Claim Chart [ECF No. 5-3]—establish the defaulting Defendants’ liability by demonstrating that each defaulting Defendant has offered for sale, sold, and imported into the United States at least one product that meets each limitation of at least one claim of the Patent at issue. A Clerk’s Default was entered against the defaulting Defendants on June 13, 2024, as those Defendants failed to appear, answer, or otherwise plead to the Complaint, despite having been served. The defaulting Defendants have still not appeared, answered, or otherwise pled to the Complaint. iii. Injunctive Relief A district court “may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” 35 U.S.C. § 283. “[I]n a default judgment setting, injunctive relief is available. Defendants’ failure to respond or otherwise appear in this action makes it difficult for Plaintiffs to prevent further infringement absent an injunction.” Atmos Nation, LLC v. Pana Depot, Inc., 2015 WL 11198010, at *2 (S.D. Fla. Apr. 8, 2015) (Bloom, J.); see also 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.”). Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 6 of 15 7 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) an issuance of an injunction is in the public’s interests. See eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 392-93 (2006). A court’s analysis of these factors “proceeds with an eye to the ‘long tradition of equity practice’ granting ‘injunctive relief upon a finding of infringement in the vast majority of patent cases.’” Presidio Components, Inc. v. Am. Tech. Ceramics Corp., 702 F.3d 1351, 1362 (Fed. Cir. 2012) (cleaned up). Indeed, “[a]bsent adverse equitable considerations, the winner of a judgment of validity and infringement may normally expect to regain the exclusivity that was lost with the infringement.” Edwards Lifesciences AG v. CoreValve, Inc., 699 F.3d 1305, 1314 (Fed. Cir. 2012) cert. denied, 134 S. Ct. 82 (2013). The Plaintiffs have carried their burden on each of the four factors, rendering permanent injunctive relief appropriate. Because of the infringement of the Hyperice Patent, the Plaintiffs are likely to suffer immediate and irreparable injury if a permanent injunction is not granted. The following specific facts, as set forth in the Plaintiffs’ Complaint, the Application for Preliminary Injunction, and accompanying declarations, demonstrate that immediate and irreparable loss, damage, and injury will result to the Plaintiffs and to consumers: (i) The Defendants own or control e-commerce stores, including one or more storefronts on Amazon, which advertise, promote, offer for sale, and sell infringing products in violation of the Plaintiffs’ respective rights; and (ii) there is good cause to believe that more infringing products will continue to appear in the marketplace; that consumers are likely to be misled, confused, and/or disappointed by the quality of these products; and that Plaintiffs will suffer losses in sales and of reputation. See Presidio Components, 702 F.3d at 1363 (“Direct competition in the same market is certainly one factor suggesting strongly the potential for irreparable harm without enforcement of the right to exclude.”). Because the defaulting Defendants have refused to appear, the Plaintiffs do not have the ability Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 7 of 15 8 to discover the full extent of monetary damages they could recover from the Defendants to compensate them for the Defendants’ infringement, thus, there is no adequate remedy at law. See Enpat, Inc. v. Budnic, 2011 WL 1196420, at *4 (M.D. Fla. Mar. 29, 2011) (Fawsett, J.) (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, the Plaintiffs have no adequate remedy at law so long as the Defendants continue to infringe the Hyperice Patents by selling Infringing Products in connection with the operation of the e-commerce stores under the Seller IDs because the Plaintiffs will have no control of the quality of the goods that could be associated with Hyperice Products. An award of money damages alone will not cure the injury to the Plaintiffs’ reputation and goodwill which will result if the Defendants’ infringing actions are allowed to continue. The balance of harm also weighs in the Plaintiffs’ favor and warrants the equitable remedy of a permanent injunction. The Plaintiffs have a significant interest in enforcing their patent rights. Enjoining the Defendants is critical to prevent hardship to the Plaintiffs from loss of sales and/or injury to the Plaintiffs’ reputation and goodwill as a manufacturer and distributor of quality products, if such relief is not issued. By contrast, the Defendants face no hardship if they are prohibited from the infringement of the Hyperice Patent, which are illegal acts. Finally, the public interest favors issuance of the permanent injunction to protect the Plaintiffs’ patent interests and protect the public from being defrauded by the selling of infringing goods that are not of the same quality as genuine Hyperice 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 the Defendants’ 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, for . . . [t]he Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 8 of 15 9 essence of equity jurisdiction has been the power of the Chancellor to do equity and to mold each decree to the necessities of the particular case.” (cleaned up)); United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724 (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.”). The Defendants have created an Internet-based infringement scheme in which they are profiting from their deliberate misappropriation of the Plaintiffs’ rights. Unless the listings and images are permanently removed, and the infringing goods destroyed, the Defendants will be free to continue infringing the Plaintiffs’ intellectual property with impunity and will continue to defraud the public with their illegal activities. Accordingly, the Court may fashion injunctive relief to eliminate the means by which the Defendants are conducting their unlawful activities. iv. Damages for Patent Infringement Damages for patent infringement are governed by 35 U.S.C. § 284, which provides that “[u]pon finding for the claimant, the court shall 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.” Utility patent infringers may be liable for lost profits or a reasonable royalty. See MCP IP, LLC v. .30-06 Outdoors, LLC, 2022 WL 3367358, at *7 (S.D. Ohio Aug. 16, 2022) (“For utility patents, there are [t]wo alternative categories of infringement compensation: (1) the patentee’s lost profits; and (2) the reasonable royalty[.]” (cleaned up)); Trell v. Marlee Elecs. Corp., 912 F.2d 1443, 1445 (Fed. Cir. 1990) (“The two methods by which damages are usually calculated under § 284 are assessment of actual damages (the profits the patentee lost due to the infringement) or, if actual damages cannot be ascertained, determination of a reasonable royalty.”). “[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). Pursuant to 35 U.S.C. § 284, Plaintiffs have elected to recover an Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 9 of 15 10 award of lost profits. As courts have noted in analogous cases involving design patent infringement, “after 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.” Evriholder Prods. LLC v. Simply LBS Ltd. Co., 2020 WL 7060336, at *9 (S.D.N.Y. Apr. 21, 2020). When calculating an infringer’s profits, courts have held in similar contexts that, where defendants have failed to produce documents to characterize revenue, courts have entered a profits award for the entire revenue amount. See Chloe v. Zarafshan, 2009 WL 2956827 at *5 (S.D.N.Y. Sept. 15, 2009) (entering profits award for the entire revenue amount in trademark infringement case even though “records offer no guidance as to how much of this revenue stream related to [the 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.”); N.Y. 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). The Plaintiffs have submitted admissible evidence of the Gross Merchant Value (“GMV”), see Exhibit 1 to Cohen Decl. [ECF No. 68-1], which is the sales price of infringing goods multiplied by the number of goods sold, received from Amazon through third-party discovery. The defaulting Defendants have failed to produce documents as to the cost of goods sold or other costs to be deducted from their gross profits. Nor have the defaulting Defendants provided evidence to apportion Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 10 of 15 11 gross receipts between infringing and not-infringing product sales. Since the Defendants have refused to appear or otherwise met their burden of apportioning gross sales or showing any deductions, lost profits to the Plaintiffs based on the Gross Merchant Value provided by Amazon is appropriate. As the damages are for a sum certain and because the essential evidence is of record that sets out the amounts owed, an evidentiary hearing is not necessary. The Court also finds that the award of damages requested in the Affidavit of Kenneth Cohen [ECF No. 68-1] falls within the permissible range under 35 U.S.C. § 284 and is just. A default monetary judgment is appropriate in this case without the need for a hearing. “Evidentiary hearings are required in all but limited circumstances, such as when hearing any additional evidence would be truly unnecessary to a fully informed determination of damages.” Safari Programs, Inc. v. CollectA Int’l Ltd., 686 F. App’x 737, 744 (11th Cir. 2017); see also S.E.C. v. Smyth, 420 F.3d 1225, 1231–32 (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.”); UMG Recording, Inc. v. Roque, 2008 WL 2844022 at *1 (S.D. Fla. July 23, 2008) (“Where all the essential evidence is of record, an evidentiary hearing on damages is not required[.]”). As the damages are for a sum certain and as the essential evidence is of record and sets out the amounts owed, an evidentiary hearing is not necessary. Here, the allegations in the Complaint, which are taken as true, along with the evidence in this case, demonstrate the Defendants intentionally infringed the ‘482 Patent. Based on the above considerations, the Plaintiffs suggest that the Court award monetary damages to deter the Defendants and others from continuing to infringe the Plaintiffs’ patents, compensate the Plaintiffs, and punish the Defendants. The Court finds that this award of damages falls within the permissible range under 35 U.S.C. § 284 and is just. * * * Case 1:24-cv-21791-RKA Document 70 Entered on FLSD Docket 06/20/2024 Page 11 of 15 12 Based on the foregoing, we hereby ORDER AND ADJUDGE that the Plaintiffs’ Motion for Final Default Judgment and a Permanent Injunction is GRANTED against those defaulting Defendants listed in the attached Schedule “A.” Final Default Judgment will be entered by separate order. DONE AND ORDERED in the Southern District of Florida on June 20, 2024.”