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Motorola, Inc. v. Abeckaser

May 14, 2009

MOTOROLA, INC., PLAINTIFF,
v.
GAD ABECKASER A/K/A GADI ABECKASER, GADI'S CELL, INC. D/B/A GADICELL, INC., AND GADICELL, GADIS INC., MOBILE CELLULAR, INC., AND VARIOUS JOHN DOES, JANE DOES AND ABC COMPANIES, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge

MEMORANDUM OPINION AND ORDER

SIFTON, Senior Judge.

Plaintiff Motorola, Inc. brings this trademark action against defendants Gad Abeckaser a/k/a Gadi Abeckaser ("Abeckaser"); Gadi's Cell, Inc. d/b/a Gadicell, Inc. and Gadicell; Gadis Inc.; Mobile Cellular, Inc.; and various John Does, Jane Does and ABC Companies. Specifically, plaintiff alleges that defendants engaged in: (1) infringement of plaintiff's registered trademarks in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114 (Count I); (2) false designation of origin in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count II); and (3) unfair competition under New York State common law (Count III). Plaintiff's claims arise out of defendants' sale of allegedly counterfeit merchandise bearing trademarks that are allegedly unauthorized copies of plaintiff's trademarks.

By memorandum opinion and order dated April 8, 2009, I granted summary judgment in plaintiff's favor with respect to liability on Counts I and II, as well as a permanent injunction to be entered when all claims against all parties have been disposed of. Presently before this Court is plaintiff's motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure restricting the transfer of defendants' assets.*fn1 For the reasons set forth below, plaintiff's motion is granted.

BACKGROUND

To the extent discussed in this Court's prior opinion, familiarity with the underlying facts of this matter is assumed. See Motorola, Inc. v. Abeckaser, No. 07-CV-3963, 2009 WL 962809 (E.D.N.Y. Apr. 8, 2009). The procedural history and factual developments described below are taken from the record of the proceedings before the undersigned as well as plaintiff's submission in connection with this motion. Defendants have not submitted papers in opposition to plaintiff's motion.

Plaintiff commenced the instant action on September 21, 2007, and immediately sought an ex parte temporary restraining order and preliminary injunction restraining defendants' assets.

Declaration of Eddy Salcedo dated January 21, 2009 ("First Salcedo Decl.") ¶ 30. By stipulation dated October 3, 2007, plaintiff withdrew its initial motion and defendants agreed to refrain from using the Motorola Trademarks in connection with any counterfeit merchandise,*fn2 as well as the following:

4. During the pendency of this action, Defendant Abeckaser agrees not to sell, lease, transfer or otherwise dispose of or encumber his home, including the structure and land, known as and located at 1082 East 29th Street, Brooklyn, New York, without prior approval of the Court.

5. Defendants agree not to transfer or dispose of money, stocks or other assets outside of the regular course of business without prior approval of the Court, or to, in any way, secrete any money, stocks or other assets.

Declaration of Eddy Salcedo dated April 28, 2009 ("Second Salcedo Decl."), Ex. A (copy of stipulation) at ¶¶ 4-5; Declaration of Eddy Salcedo dated May 4, 2009 ("Third Salcedo Declaration") ¶ 5. Plaintiff refers to paragraphs four and five of the stipulation as the "Asset Injunction." While the stipulation was filed with this Court on October 3, 2007, neither I nor any other judge in this District reviewed, approved, or "so ordered" the stipulation.

In January of 2009, defendants were directed to report whether the title to the property designated in paragraph four of the stipulation remained in defendant Abeckaser's name and remained free of lease, transfer or other encumbrance, and to report on defendants' compliance with paragraph five of the stipulation. Second Salcedo Decl. ¶ 6; Third Salcedo Decl. ¶ 5. According to plaintiff, defendants have not yet made such a report. Id.

Eddy Salcedo, counsel for plaintiff, states in a declaration that a search of the online database for the Office of the City Register of the New York City Department of Finance, located at http://www.nyc.gov/html/dof/html/jump/acris.shtml, reveals that a deed has been issued for the property designated in paragraph four of the stipulation to an individual by the name of Simon Stoklasa. Third Salcedo Decl. ¶ 6; see also id. Ex. B (copy of City Register report reflecting transfer of deed from defendant Abeckaser to Mr. Stoklasa on October 27, 2008). Mr. Salcedo further states that counsel for defendants has represented to him that he does not know what actions, if any, defendant Abeckaser has taken with respect to the property. Id. ¶ 6.

Bart Lazar, also counsel for plaintiff, states in a declaration that on April 24, 2009, he spoke with David Chen, an Assistant District Attorney in Queens, New York, regarding the status of the criminal matter involving defendant Abeckaser. Declaration of Bart A. Lazar dated May 4, 2009 ("Lazar Decl.") ΒΆ 3. Mr. Lazar states that Mr. Chen advised him that "he believed that the matter would be resolved and that he understood that Mr. Abeckaser was going to permanently leave the country and transfer the ownership and operation of his businesses." Id. Mr. Lazar further states that according to Mr. Chen, defendant Abeckaser's attorney in the criminal matter represented in court during the criminal proceedings that defendant Abeckaser did not have substantial assets. Id. In addition, Mr. Lazar states that on May 4, 2009, he was ...


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