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H-D U.S.A., LLC v. Guangzhou Tomas Crafts Co., Ltd.

United States District Court, N.D. Illinois, Eastern Division

December 18, 2017

H-D U.S.A., LLC, Plaintiff,
v.
GUANGZHOU TOMAS CRAFTS CO., LIMITED, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Judge.

         Plaintiff Harley-Davidson moved for summary judgment against the Defendant identified by and operating the eBay store bg27cyf for alleged trademark infringement. [99]. Plaintiff seeks at least $150, 000 in statutory damages, a permanent injunction prohibiting Defendant from selling and offering for sale counterfeit Harley-Davidson products, and an award of reasonable attorney fees and costs pursuant to 15 U.S.C. § 1117. Id. For the reasons explained below, this Court grants summary judgment to Plaintiff, awards Plaintiff $150, 000 in statutory damages, enters a permanent injunction against Defendant, and awards reasonable attorney fees and costs to Plaintiff.

         This opinion also addresses three other motions: Defendant's motion to lift the asset freeze that this Court entered in November 2016 [111]; Plaintiff's motion to compel discovery and/or strike Defendant's motion to lift the asset freeze [132]; and Defendant's motion to strike one of Plaintiff's declarations [143]. For the reasons explained below, this Court denies Defendant's motion to lift the asset freeze, denies Plaintiff's motion to compel and/or strike as moot, and denies Defendant's motion to strike as moot.

         I. Background[1]

         A. Local Rule 56.1 and Evidentiary Rules

         Throughout Defendant's response to Plaintiff's statement of facts, Defendant denies facts by responding with legal arguments and conclusions. See, e.g., [116] at 3. Similarly, Defendant's statement of additional facts contains conclusory legal arguments. See, e.g., id. at 5 (“A reasonable purchaser would realize that one could not expect to receive legitimate Harley-Davidson front axle nut cover caps for $12.13 price [sic] charged by Defendant.”). Legal arguments and conclusions do not belong in Local Rule 56.1 statements. See Phillips v. Quality Terminal Servs., LLC, 855 F.Supp.2d 764, 771 (N.D. Ill. 2012) (“Including legal arguments in a 56.1 statement is wholly improper, redundant, unpersuasive, and irksome; in short, it advances neither the interests of the parties nor of the court.”). Thus, this Court does not consider the improper “facts” in Defendant's statement, and this Court deems admitted any of Plaintiff's facts that Defendant denies improperly.

         Along with improper legal arguments, Defendant also seeks to support its statement of facts with an undated declaration from bg27cyf's manager. [117]. Declarations may substitute for affidavits and constitute evidence if they comply with the requirements of 27 U.S.C. § 1746. Sheikh v. Grant Reg'l Health Ctr., 769 F.3d 549, 551 (7th Cir. 2014). Section 1746 requires a dated signature. Accordingly, this Court does not consider the undated declaration as evidence. See Rivera v. Allstate Ins. Co., 140 F.Supp.3d 722, 729 (N.D. Ill. 2015).

         B. Facts

         Plaintiff holds a federal trademark registration for the Harley-Davidson “Bar & Shield Logo.” [101] ¶ 1. The Bar & Shield Logo registration has incontestable status under 15 U.S.C. § 1065. Id.

         Defendant advertised, offered for sale, and sold-through the eBay store identified as bg27cyf-motorcycle axle nut covers featuring counterfeit versions of the Bar & Shield Logo. Id. ¶ 2. Defendant advertised and sold products to consumers in the United States, including Illinois consumers. Id. ¶ 5. Plaintiff did not authorize the use of its Bar & Shield Logo on the axle nut covers that Defendant sold. Id. Plaintiff also did not authorize Defendant to use the Bar & Shield Logo in connection with any other products in Defendant's eBay store. Id. ¶ 4.

         II. Legal Standard

         Courts should grant summary judgment when the moving party shows that no genuine dispute exists as to any material fact and the evidence weighs so heavily in the moving party's favor that the moving party “must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see also Fed. R. Civ. P. 56. A genuine dispute as to a material fact exists when, based upon the evidence, a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 248. To show a genuine dispute as to a material fact, the non-moving party must point to “particular materials in the record, ” and cannot rely upon the pleadings or speculation. Olendzki v. Rossi, 765 F.3d 742, 746 (7th Cir. 2014).

         Courts must evaluate evidence in the light most favorable to the non-moving party and must refrain from making credibility determinations or weighing evidence. Rasho v. Elyea, 856 F.3d 469, 477 (7th Cir. 2017) (citing Anderson, 477 U.S. at 255). The moving party bears the burden of establishing the lack of genuine disputes as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         III. Analysis

         A. Plaintiff's Motion ...


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