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GUESS?, INC. v. GOLD CTR. JEWELRY

March 13, 1998

GUESS?, INC., Plaintiff, against GOLD CENTER JEWELRY, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 The history of this action is fully set forth in Gucci America, Inc. v. Gold Center Jewelry,1 familiarity with which is assumed. The matter now is before the Court on the plaintiff's motion to fix the amount of statutory damages against defendant Home Boy 2000, against which the Court has entered a default judgment as to liability for wilful trademark infringement and counterfeiting.

 Facts

 Home Boy 2000 is a small retail jewelry store operated by JAF, Inc. and its principal, Kevin Amirianfar. It is located in the Bronx.

 On February 26, 1996, an investigator acting on behalf of plaintiff visited Home Boy and observed various medallions, earrings and bracelets bearing the "Guess?" trademark. On the following day, plaintiff's counsel sent a cease and desist letter to Home Boy. An investigator therefore returned to the store on June 6, 1996 and purchased two additional "Guess?" trademarked items. A third visit was made on January 28, 1997, at which time the defendant still was selling "Guess?" items, one of which was purchased by the investigator.

 This action was commenced on or about February 27, 1997. The complaint alleges that this defendant wilfully sold counterfeit "Guess?" items and continued to do so after receiving plaintiff's demand that it cease and desist. *fn2" Defendant's default admitted these well pleaded factual allegations.

 Mr. Amirianfar's conduct with respect to the litigation itself already has been described in the Gucci opinion. Suffice it to say here that Mr. Amirianfar's behavior was irresponsible and, to some degree, deliberately obstructive. *fn3" Moreover, the affidavit he submitted in support of the motion to vacate the monetary award previously entered against him was inaccurate in important respects.

 At the hearing held on the motion to vacate and in a subsequent declaration, Mr. Amirianfar testified in substance that his dealings in counterfeit Guess? merchandise were de minimis. He contends also that he is a person of limited means and that any award should be no more than $ 3,500.

 Discussion

 Congress passed The Anticounterfeiting Consumer Protection Act of 1996 in an effort to counter the unprecedented escalation in trademark counterfeiting activities in this country. *fn4" Section 7 of the Act, *fn5" provides that:

 
"In a case involving the use of a counterfeit mark . . . in connection with the sale, offering for sale, or distribution of goods and services, the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits under subsection (a) of this section, an award of statutory damages for any such use in connection with the sale, offering for sale, or distribution of goods or services in the amount of --
 
"(1) not less than $ 500 or more than $ 100,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just; or
 
"(2) if the court finds that the use of the counterfeit mark was willful nor more than $ 1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, ...

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