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Phoenix Entertainment Partners LLC v. Mullin Corporation

United States District Court, D. South Carolina, Florence Division

July 19, 2016

PHOENIX ENTERTAINMENT PARTNERS, LLC, Plaintiff,
v.
MULLIN CORPORATION and DANIEL O’NEILL d/b/a BIG SOUTH ENTERTAINMENT, Defendants.

          ORDER, JUDGMENT AND PERMANENT INJUNCTION AGAINST DEFENDANTS MULLIN CORPORATION AND DANIEL O’NEILL D/B/A BIG SOUTH ENTERTAINMENT

          MARY GEIGER LEWIS, UNITED STATE DISTRICT JUDGE.

         This matter is before the Court upon the Motion of Plaintiff, Phoenix Entertainment Partners, LLC (hereinafter “PEP”), pursuant to Fed.R.Civ.P. 55(b)(2), for a judgment by default against Defendants Mullin Corporation (hereinafter “Mullin”) and Daniel O’Neill d/b/a Big South Entertainment (hereinafter “O’Neill” and collectively with Mullin, the “Defendants”). Based upon a review of the evidence before the Court, the Court makes the following:

         FINDINGS OF FACT

         1. On August 6, 2015, PEP commenced this lawsuit against Defendants alleging trademark infringement involving counterfeiting, unfair competition and a violation of South Carolina’s Unfair Trade Practices Act.

         2. On August 18, 2015, Defendants were duly served with the Complaint and Summonses issued by the Clerk.

         3. Defendants failed to answer or otherwise respond to the Complaint within the time required by Fed.R.Civ.P. 12.

         4. At all times relevant to this action, PEP was the owner of U.S. Trademark Registration Nos. 1, 923, 448 and 4, 099, 045, both for the word mark SOUND CHOICE®, and of U.S. Trademark Registration Nos. 2, 000, 725 and 4, 099, 052, both for the design mark SOUND CHOICE & Design® (the “Marks”).

         5. PEP consistently used the ® symbol to denote the registration of the Marks and thereby to give notice to the public that the Marks are federally registered.

         6. O’Neill has copied, shared, distributed, and/or sold copies of the accompaniment tracks or karaoke songs marked with the Marks via hard drives, USB drives, CD-Rs, or the Internet.

         7. Mullin hired O’Neill to provide commercial karaoke services at its bar on at least more than one (1) occasion and had the right and ability to control whether its contractors use authentic or counterfeit materials to provide services.

         8. Mullin had actual knowledge of the infringing and counterfeit nature of O’Neill’s karaoke materials.

         9. Despite that knowledge, Mullin refused to terminate O’Neill’s services and continued to receive a financial benefit from the provision of infringing karaoke services at its establishment by O’Neill, through the attraction of paying patrons to its establishment.

         10. Defendants used a reproduction, counterfeit, or copy of the Marks in connection with providing karaoke services, by displaying that reproduction, counterfeit, or copy during the provision of their services.

         11. Defendants did not have a license to create digitized copies of PEP’s karaoke discs or of the ...


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