“THIS CAUSE came before the Court upon Plaintiff, Liuli Zhou’s Motion for Default Final Judgment [ECF No. 145], filed on August 30, 2024. Plaintiff seeks entry of a default final judgment against Defendants, the Individuals, Partnerships, and Unincorporated Associations Identified on Schedule A to the Motion [ECF No. 145-1]1 that operate e-commerce stores that infringe Plaintiff’s patent rights. (See generally Mot.). Plaintiff requests the Court (1) enjoin Defendants’ infringement of Plaintiff’s patents, and (2) award Plaintiff damages in the form of lost profits. (See generally id.). Defendants have not responded to the Motion within the time afforded by the Rules, nor have they requested additional time to do so. The Court has carefully considered the Motion, the record, and applicable law. I. INTRODUCTION Plaintiff owns four design patents for Christmas lights under Registration Numbers US D984,688 S, D984,689 S, D984,690 S and D994,165 S (“Plaintiff’s Patents”), which are registered 1 Schedule A is also appended to this Order. Case 1:23-cv-24601-CMA Document 146 Entered on FLSD Docket 09/18/2024 Page 1 of 10 CASE NO. 23-24601-CIV-ALTONAGA/Reid 2 with the United States Patent and Trademark Office (“USPTO”). (See Am. Compl. [ECF No. 6] ¶ 2; see id., Plaintiff’s Patents, Exs. 1–4 [ECF Nos. 6-1 to 6-4]). Defendants, through various e-commerce stores, are advertising, promoting, marketing, offering for sale, displaying, and soliciting for sale goods that are “exact copies and/or confusingly similar copies to the [] designs in Plaintiff’s Patents.” (Am. Compl. ¶ 25 (alteration added)). Defendants’ products are “so similar to Plaintiff’s as to be nearly identical such that an ordinary observer, giving such attention as a purchaser usually gives, would be so deceived by the substantial similarity between the designs so as to be induced to purchase Defendants’ products believing them to be the same design as the one protected by Plaintiff’s Patents.” (Id. ¶ 26). Defendants are not authorized or licensed to use Plaintiff’s Patents. (See id. ¶ 3). As part of his ongoing investigation regarding the sale of infringing products, Plaintiff accessed Defendants’ Internet based e-commerce stores operating under their respective Seller ID names through Amazon and Walmart. (See Mot., Ex. 3, Pl.’s Decl. [ECF No. 145-3] ¶ 8). On December 6, 2023, Plaintiff filed his Complaint [ECF No. 1] alleging Defendants violated 35 U.S.C. section 271 by directly infringing Plaintiff’s Patents. (See id. ¶ 1; see generally id.). On December 18, 2023, Plaintiff filed an Ex Parte Motion for Order Authorizing Alternate Service of Process . . . [ECF No. 10], which the Court granted. (See Dec. 19, 2023 Order [ECF No. 13]). On January 15, 2024, Plaintiff served each Defendant with a Summons [ECF No. 18] and copy of the Amended Complaint via electronic mail and website posting. (See generally Proof of Service [ECF No. 23]). A Clerk’s Default [ECF No. 73] was entered against Defendants on February 20, 2024, after Defendants failed to respond to the Amended Complaint despite having been served on January 15, 2024. (See Proof of Service). Plaintiff has settled with and voluntarily dismissed Case 1:23-cv-24601-CMA Document 146 Entered on FLSD Docket 09/18/2024 Page 2 of 10 CASE NO. 23-24601-CIV-ALTONAGA/Reid 3 several Defendants and now moves for final default judgment against the Defendants remaining on the Schedule A appended to this Order. II. LEGAL STANDARDS Under Federal Rule of Civil Procedure 55(b)(2), the Court is authorized to enter a final judgment of default against a party who has failed to plead in response to a complaint. See Fed. R. Civ. P. 55(b)(2). Although a court is authorized to enter a final judgment of default against a party who has failed to plead in response to a complaint, “[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) (alteration added; quoting Nishimatsu Constr. Co., Ltd. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975); citations omitted). “Entry of judgment by default is a drastic remedy which should be used only in extreme situations[.]” Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985) (alteration added). Granting a motion for default judgment is within the trial court’s discretion. See Nishimatsu Constr. Co., 515 F.2d at 1206. “Entry of default judgment is only warranted when there is ‘a sufficient basis in the pleadings for the judgment entered.’” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015) (footnote call number omitted; quoting Nishimatsu Constr. Co., 515 F.2d at 1206). “[A] default judgment cannot stand on a complaint that fails to state a claim.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997) (alteration added; citations omitted). Even if a complaint states a claim, the court must still “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Sublett v. Landshark Grp., Inc., No. 20-cv-128, 2021 WL 5055074, at *6 (N.D. Fla. Aug. 26, 2021) (quoting Credit Lyonnais Sec. (USA) v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). Case 1:23-cv-24601-CMA Document 146 Entered on FLSD Docket 09/18/2024 Page 3 of 10 CASE NO. 23-24601-CIV-ALTONAGA/Reid 4 III. ANALYSIS Liability for Patent Infringement. Under the Patent Act, “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” 35 U.S.C. § 271(a). To prevail on his claim of design patent infringement, Plaintiff must satisfy the “ordinary observer test[:]” “[i]f in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.” Amini Innovation Corp. v. Anthony Cal., Inc., 439 F.3d 1365, 1371 (Fed. Cir. 2006) (alteration adopted; other alterations added; citation and quotation marks omitted). Here, the Amended Complaint properly alleges sufficient facts to demonstrate Defendants’ patent infringement. (See Am. Compl. ¶¶ 18–35). Moreover, Plaintiff substantiates his allegations with sworn declarations and other evidence to establish Defendants’ liability for patent infringement. (See Pl.’s Decl. ¶¶ 7–8 (demonstrating that each Defendant has either sold or offered to sell “products to consumers in the United States and the State of Florida, including the Southern District of Florida, utilizing the Plaintiff’s Patents without authorization”); see id. ¶ 9 (“Plaintiff has prepared a chart comparing Plaintiff’s [P]atents to each of the [] Defendant’s infringing products” and it shows an ordinary observer would deem the designs to be substantially the same (alterations added)), 6–53; see also Mot., Ex. 2, Rubio Decl. [ECF No. 145-2]). Accordingly, entry of default judgment under Federal Rule of Civil Procedure 55(b) is appropriate. Relief. Plaintiff seeks both injunctive relief and damages. (See generally Mot.). The Court considers Plaintiff’s entitlement to each category of relief. Case 1:23-cv-24601-CMA Document 146 Entered on FLSD Docket 09/18/2024 Page 4 of 10 CASE NO. 23-24601-CIV-ALTONAGA/Reid 5 Injunctive relief. District courts “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. Even in a default judgment setting, injunctive relief is available. See, e.g., PetMed Express, Inc. v. MedPets.Com, Inc., 336 F. Supp. 2d 1213, 1222–23 (S.D. Fla. 2004). Defendants’ failure to respond or otherwise appear in this action makes it difficult for Plaintiff to prevent further infringement absent an injunction. See Jackson v. Sturkie, 255 F. Supp. 2d. 1096, 1103 (N.D. Cal. 2003) (noting the “defendant’s lack of participation in this litigation has given the court no assurance that defendant’s infringing activity will cease. Therefore, [the] plaintiff is entitled to permanent injunctive relief.” (alteration added)). Permanent injunctive relief is appropriate where a plaintiff demonstrates (1) it has suffered irreparable injury; (2) there is no adequate remedy at law; (3) the balance of hardships favors an equitable remedy; and (4) issuance of an injunction is in the public’s interest. See eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391–92 (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) (citation omitted). “Absent 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). Plaintiff has carried his burden on each of the four factors, rendering permanent injunctive relief appropriate. First, Plaintiff suffers irreparable harm because Defendants’ infringement causes confusion among consumers and damages Plaintiff’s business reputation and market position. See Kevin Harrington Enters., Inc. v. Bear Wolf, Inc., No. 98-cv-1039, 1998 Case 1:23-cv-24601-CMA Document 146 Entered on FLSD Docket 09/18/2024 Page 5 of 10 CASE NO. 23-24601-CIV-ALTONAGA/Reid 6 WL 35154990, at *8 (S.D. Fla. Oct. 8, 1998) (finding that “[t]he likelihood of irreparable harm [] increases when defendant is distributing products that consumers may associate with plaintiff leaving the plaintiff without the ability to control its own reputation and good will.” (alterations added; citation omitted)); (see also Pl.’s Decl. ¶¶ 14–17). “It is well-settled that, because the principal value of a patent is its statutory right to exclude, the nature of the patent grant weighs against holding that monetary damages will always suffice to make the patentee whole.” Hybritech Inc. v. Abbott Lab’ys, 849 F. 2d 1446, 1456–57 (Fed. Cir. 1988) (footnote call number omitted). Second, Plaintiff has no adequate remedy at law so long as Defendants continue to operate the Seller IDs, because Plaintiff cannot control the quality of what appears to be his legitimate products in the marketplace. (See Pl.’s Decl. ¶ 16). An award of monetary damages alone will not cure the injury to Plaintiff’s reputation and goodwill that will result if Defendants’ infringing and counterfeiting actions are allowed to continue. (See id. ¶ 18). Third, enjoining Defendants will prevent hardship to Plaintiff from loss of sales and injury to Plaintiff’s reputation and goodwill (see Pl.’s Decl. ¶¶ 18–19), whereas Defendants “face no hardship if they are prohibited from the infringement of [Plaintiff’s patents], which [are] illegal act[s,]” Chanel, Inc. v. Replicachanelbag, 362 F. Supp. 3d 1256, 1264 (S.D. Fla. 2019) (alterations added). Finally, the public interest supports the issuance of a permanent injunction to prevent Defendants from misleading consumers with Defendants’ counterfeit 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.” (alteration added)). Therefore, permanent injunctive relief is appropriate. Case 1:23-cv-24601-CMA Document 146 Entered on FLSD Docket 09/18/2024 Page 6 of 10 CASE NO. 23-24601-CIV-ALTONAGA/Reid 7 Damages. Plaintiff also seeks statutory damages under 35 U.S.C. sections 284 and 289. (See Mot. 12–16; see also Am. Compl. ¶ 47). Section 284 provides that a party whose patent has been infringed is entitled to receive “damages adequate to compensate for the infringement[.]” 35 U.S.C. § 284 (alteration added). There are two methods by which courts calculate damages under section 284. See Hanson v. Alpine Valley Ski Area, Inc., 718 F.2d 1075, 1078 (Fed. Cir. 1983). First, if the record permits the determination of actual damages in the form of lost profits the patentee lost due to the infringement, that determination accurately measures loss. See id. If actual damages cannot be ascertained, a reasonable royalty, or a fee of $250, may be awarded. See Trell v. Marlee Elecs. Corp., 912 F.2d 1443, 1445 (Fed. Cir. 1990) (citation omitted); see also 35 U.S.C. § 289 (stating that patent infringers shall be liable to the patent owner for “not less than $250”). “The finding of the amount of damages for patent infringement is a question of fact on which the patent owner bears the burden of proof.” BIC Leisure Prods., Inc. v. Windsurfing Int’l, Inc., 1 F.3d 1214, 1217 (Fed. Cir. 1993) (citation omitted). Here, Plaintiff seeks lost profits damages, or in the alternative, $250 per Defendant. (See Mot. 14–16). The Court, finding Plaintiff fails to meet his burden of proof on lost profits damages, grants Plaintiff $250 per infringing Defendant. “To measure damages by lost profits[,] the patentee must establish, by a preponderance of evidence, that but for the infringement he would have earned the profits he asserts were lost.” Hebert v. Lisle Corp., 99 F.3d 1109, 1119 (Fed. Cir. 1996) (alteration added; citing Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 507 (1964); other citation omitted). “Damage awards can not be based upon speculation or optimism[] but must be established by evidence.” Id. (alteration added). In short, when a patent owner seeks to prove actual damages Case 1:23-cv-24601-CMA Document 146 Entered on FLSD Docket 09/18/2024 Page 7 of 10 CASE NO. 23-24601-CIV-ALTONAGA/Reid 8 in the form of lost profits, as here, the patent owner must show it (1) would have made the sale but for the infringement and (2) proper evidence of the computation of lost profits. See Standard Havens Prod., Inc. v. Gencor Indus., Inc., 953 F.2d 1360, 1372 (Fed. Cir. 1991) (citation omitted). One way to demonstrate this is through the “Panduit test” which requires the patentholder to establish by a reasonable probability “(1) demand for the patented product, (2) absence of acceptable noninfringing substitutes, (3) manufacturing and marketing capability to exploit the demand, and (4) the amount of profit that would have been made.” Georgetown Rail Equip. Co. v. Holland L.P., 867 F.3d 1229, 1241 (Fed. Cir. 2017) (alterations adopted; quoting Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152, 1156 (6th Cir. 1978)). Plaintiff falls short of satisfying the Panduit test, only successfully establishing the first three elements. First, Plaintiff sold over 25,000 units last year and is expected to sell even more this year. (See Mot. 14; see also Pl.’s Decl. ¶ 10). These sales show there is a demand for the product. Second, Plaintiff “investigated the market” and “determined there are no acceptable non-infringing substitutes for Plaintiff’s patented product.” (Mot. 14 (citation omitted); see also Pl.’s Decl. ¶ 12). Third, Plaintiff “has the manufacturing and marketing capabilities of exploiting and meeting the demand” and “has not faced any production challenges.” (Mot. 14 (citation omitted); see also Pl.’s Decl. ¶ 13). As stated, however, Plaintiff fails to establish the fourth element — the amount of lost profits. Plaintiff argues “because Defaulting Defendant[s] decided not to participate in this litigation, there is some information that cannot be ascertained with precision, however, damages may be estimated on the best available evidence[.]” (Mot. 15 (alterations added; citing Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566, 1572 (Fed. Cir. 1996)). True, “if actual Case 1:23-cv-24601-CMA Document 146 Entered on FLSD Docket 09/18/2024 Page 8 of 10 CASE NO. 23-24601-CIV-ALTONAGA/Reid 9 damages can not be ascertained with precision because the evidence available from the infringer is inadequate, damages may be estimated on the best available evidence,” Sensonics, Inc., 81 F.3d at 1572 (citations omitted); but, here, Plaintiff does not provide the Court with enough information to make an estimate of damages based on lost profits (see generally Mot.). Plaintiff requests the Court award him the amount of assets restrained for each Defendant. 2 Plaintiff fails to explain why this amount is a sufficient estimate for the profits each Defendant made selling infringing products. (See generally Mot.). Admittedly, it is the infringer’s burden to prove that “certain portions of its revenues . . . were not obtained through its infringement[,]” but the infringer only bears this burden once the plaintiff has already “prove[n] the infringer’s sales.” WMS Gaming Inc. v. WPC Prods. Ltd., 542 F.3d 601, 608–09 (7th Cir. 2008) (alterations added). Plaintiff offers nothing more than a conclusory statement that Defendants’ restrained assets equal their sales (see Mot. 16), and a table displaying these amounts in Plaintiff’s counsel’s declaration (see Rubio Decl.); and therefore, he fails to satisfy the fourth Panduit factor. Thus, Plaintiff may recover only the $250 per Defendant allowed under 35 U.S.C. section 289. IV. CONCLUSION Based on the foregoing, it is ORDERED AND ADJUDGED that Plaintiff, Liuli Zhou’s Motion for Default Final Judgment [ECF No. 145] is GRANTED in part. Final judgment shall issue by separate order. 2 On January 17, 2024, the Court entered an Order [ECF No. 25] requiring third-party financial institutions, payment processors, banks, escrow services, money transmitters, or marketplace platforms providing services for any Defendant (“Third-Party Providers”) to restrain the transfer of that Defendant’s funds in its Third-Party Provider account. (See id. 6–7). Case 1:23-cv-24601-CMA Document 146 Entered on FLSD Docket 09/18/2024 Page 9 of 10 CASE NO. 23-24601-CIV-ALTONAGA/Reid 10 DONE AND ORDERED in Miami, Florida, this 17th day of September, 2024.”