DECISION AND ORDER INTRODUCTION Plaintiffs Luxottica Group S.p.A. and Oakley, Inc. (together, the “Luxottica Parties”) brought this action against Defendants Wafa Ali, Inc., Ali Saleh, Carmelo Gimeli, and Does 1-10. ECF No. 1. They asserted three claims: (1) trademark infringement under 15 U.S.C. §1114(1)(a); (2) false designation of origin and false advertising under 15 U.S.C. §1125(a); and (3) unfair competition under New York state law. Id. The summonses and affidavits of service for the named Defendants were returned as executed in September 2019. ECF Nos. 5-7. Only Gimeli answered the summons, ECF No. 8; Wafa Ali, Inc. and Saleh (together the “Wafa Ali Parties”) did not answer or otherwise appear in this action. The Luxottica Parties filed for clerk’s entry of default against the Wafa Ali Parties on October 2, 2019, ECF No. 10, and the Clerk of Court entered default on October 3, 2019, ECF No. 11. The Luxottica Parties moved for default judgment against the Wafa Ali Parties on April 22, 2020. ECF No. 20. On August 17, 2020, the Court denied the Luxottica Parties’ motion because the alleged wrongful conduct and liability of the Wafa Ali Parties was intertwined with the appearing defendant, Carmelo Gimeli. ECF No. 24. On November 2, 2020, Gimeli and the Luxottica Parties stipulated to the dismissal of the Luxottica Parties’ claims against Gimeli and entry of a permanent injunction based on a settlement agreement. ECF No. 28. The Luxottica Parties renewed their motion for default judgment against the Wafa Ali Parties that same day. ECF No. 29. The Court held a status conference on November 5, 2020, at which the Court expressed concerns regarding the Luxottica Parties’ claimed damages, scheduled a hearing on damages for December 14, 2020, and gave them two weeks to file a supplemental memorandum regarding damages. ECF No. 31. The Luxottica Parties filed their supplemental memorandum on November 20, 2020 and requested that the Court enter default and award damages in “any amount it deems fair based on the papers submitted” absent a hearing. ECF No. 32 at 6. On December 4, 2020, the Court cancelled the damages hearing and took the materials submitted by the Luxottica Parties under advisement. For the following reasons, the Luxottica Parties’ renewed motion for default is GRANTED in part and DENIED in part. LEGAL STANDARD Federal Rule of Civil Procedure 55 governs motions for default judgment and provides a two-step process. Priestley v. Headminder, Inc., 647 F.3d 497, 504-05 (2d Cir. 2011). First, the plaintiff must obtain the clerk’s entry of default. Fed. R. Civ. P. 55(a). Then, the plaintiff may apply for the entry of a default judgment to either the clerk or the Court depending on the relief requested. Fed. R. Civ. P. 55(b). In evaluating whether to enter a default judgment, the Court accepts as true the well-pleaded factual allegations of the complaint relating to liability. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). The Court must determine whether the plaintiff’s well-pleaded allegations establish the defendant’s liability as a matter of law. Press Clean Sales, LLC v. Maxum Trans Inc., 233 F. Supp. 3d 360, 364 (E.D.N.Y. 2017) (citing City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011)). If liability is established, the Court assesses whether the plaintiff has established damages to a reasonable certainty. Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). Unlike allegations related to liability, allegations related to damages are not accepted as true. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). Thus, the plaintiff must submit evidence to prove damages. Belizaire v. Rav Investigative & Sec. Servs., Ltd., 61 F. Supp. 3d 336, 345 (S.D.N.Y. 2014). “If a plaintiff fails to demonstrate its damages to a reasonable certainty, then the court should decline to award any damages, even where liability has been established through default.” Id. BACKGROUND The Luxottica Parties are owners of various Ray-Ban and Oakley trademarks (together, the “Marks”) and manufacture and sell “premium, luxury and sports eyewear.” ECF No. 1
12, 15, 21. Wafa Ali, Inc., is a New York corporation with its principal place of business in Rochester, New York. Id. 7. Wafa Ali owns and operates Renee’s Clothing, a retail store in Rochester, New York. Id. 25. Salah and Gimeli “are the owners, directors, and/or managing agents of Wafa Ali.” Id. 28. In May 2019, United States Customs and Border Protection seized sixty-one counterfeit Ray-Ban sunglasses that were bound for Renee’s Clothing. ECF No. 29-2 9, Ex. A. In June 2019, the Luxottica Parties dispatched a private investigator, Kevin Baker, to further investigate. Id. 10. At Renee’s Clothing, Mr. Baker purchased three sunglasses bearing what appeared to be the Luxottica Parties’ Marks. Id. 11. Mr. Baker saw at least sixteen sunglasses bearing the Marks displayed for sale. Id. An authentication expert later confirmed that the sunglasses Mr. Baker purchased were counterfeit based on the appearance of the Ray-Ban and Oakley logos, incorrect hardware, non-existent or fake serial numbers, and non-conforming cases and tags. Id. 12. The counterfeit products had a total of ten unauthorized reproductions of the Marks (the “Counterfeit Marks”). Id. 13. DISCUSSION I. Liability The Court first evaluates whether the Luxottica Parties’ allegations, taken as true, establish liability as to the Wafa Ali Parties. See Bricklayers & Allied Craftworkers Local 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 187 (2d Cir. 2015). The Luxottica Parties seek default for trademark infringement, false designation of origin, unfair competition under the Lanham Act, and New York common law. ECF No. 1
