The opinion of the court was delivered by: Ralph Zarefsky United States Magistrate Judge
UNDISPUTED FACTS AND CONCLUSIONS OF LAW
This matter came before the Court on March 12, 2012 on the motion of Plaintiff for summary judgment. Plaintiff appeared through its attorney Joel D. Voelzke. Defendant Seung Wee Yang appeared pro se, assisted by a Korean language interpreter he had brought with him. The Court heard argument and took the matter under submission.
The motion was duly noticed and, out of an abundance of caution, and consistent with Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998), the Court formally gave Defendant Yang notice of his obligations in responding to a summary judgment motion. Nevertheless -- and despite the fact that this is the third motion for summary judgment in this case -- Defendant Yang did not submit any declarations on matters of substance in response to the motion. He did state that he did not have enough time, but he did not submit a declaration in accordance with FED. R. CIV. P. 56(d), and the notion that he did not have enough time is unconvincing. The Court on its own continued the hearing on the motion from its originally-noticed date of February 27, 2012. The motion itself originally was filed on January 20, 2012, and it is clear that Defendant Yang had plenty of time to respond to the motion.
The Court incorporates its Statement of Uncontroverted Facts and Conclusions of Law, filed October 28, 2011 (Document No. 113), and its Statement of Uncontroverted Facts and Conclusions of Law, filed December 14, 2011 (Document No. 119). In those documents, the Court determined that there was no genuine issue of fact as to liability under various claims, and that Plaintiff was entitled to judgment as a matter of law. The present motion addresses issues relating to relief.
1. Yang filed for personal bankruptcy under Chapter 7 of the Bankruptcy Code on August 1, 2009.
2. Plaintiff's counsel sent a copy of the instant complaint to Yang's trademark attorney, Clinton Cusick, on November 6, 2009.
3. Mr. Cusick sent a return letter acknowledging the lawsuit on November 13, 2009 but refusing to accept service.
4. Plaintiff's counsel then mailed a copy of the complaint directly to Mr. Yang on November 19, 2009.
5. Despite Yang's being advised of this lawsuit both through his attorney and directly, Yang never listed this lawsuit within his bankruptcy schedules.
6. Yang never gave to Plaintiff the formal notice of bankruptcy proceedings that a debtor is required to send to his creditors, nor otherwise notified Plaintiff that he was in bankruptcy.
7. Yang received a discharge of over $300,000 in debts on December 1, 2009. His bankruptcy case was closed on December 21, 2009.
8. Plaintiff became aware of Yang's bankruptcy for the first time on
March 24, 2010 when Yang's then-attorneys in this case sent notice of
the bankruptcy case,
and a copy of his bankruptcy petition, to Plaintiff's counsel. By that
time, Yang had already answered the Complaint here a month previously.
The Answer did not mention Yang's bankruptcy petition or discharge.
9. In attempting later to avoid his bankruptcy case from being reopened, Yang presented a sworn declaration to the Bankruptcy Court stating that he could not possibly have listed this lawsuit in his bankruptcy schedules because he did not learn of the lawsuit until after his bankruptcy case was already closed. This was false.
10. Yang continued to use the domain www.perma-life.co.kr to advertise and sell his Pearl Life cookware post-petition.
11. Yang continued to advertise and sell his infringing Pearl Life cookware at least until June 2011, which was after he had received a discharge and his bankruptcy case was closed.
12. Yang told the Bankruptcy Court that for the 60 days prior to his bankruptcy petition, he had had no job, had not been self-employed, had no assets, and had no inventory of product. This was false.
13. Yang claims to have lost all of his business records from his Pearl Life cookware business in late November 2009, which was approximately one month after this lawsuit was filed on October 28, 2009. He has presented no evidence of any sort -- not only no records, but also no expert testimony, or even no testimony estimating any costs or expenses -- sufficient to establish a triable issue of fact as to his costs and expenses.
14. On May 18, 2009, Plaintiff filed an Opposition in the U.S. Patent and Trademark Office opposing Yang's "Pearl Life" trademark application serial no. 77/401,110 on the ground that "Pearl Life" would be confusingly similar to "Perma-Life."
15. Yang filed his Answer to that Opposition on June 19, 2009. 16. Approximately one month later, on July 27, 2009, Yang filed Korean trademark application serial no. 40-2009-0035888 to register "Perma Life" as his own trademark for a wide variety of products including electric cookware.
17. Plaintiff prevailed in the Opposition proceeding in the Patent and Trademark Office when, on November 25, 2009, the Trademark Trial and Appeal Board declared Yang's application to be deemed withdrawn.
18. Yang registered the domain www.kissmixer.com on March 8, 2001, and remains the owner of that domain today. Yang has been using that domain since at least 2005 to operate an online business ("the Kissmixer.com Business") selling a kitchen mixer called a "Kiss Mixer" and a variety of other housewares.
19. Contrary to his representations to the Bankruptcy Court, Yang was in the business of selling Pearl Life cookware during his bankruptcy, having received approximately $19,636 worth of Pearl Life cookware inventory in late June or early July of 2009, and selling that cookware during the months of July, August, September, and October of 2009.
20. Yang continued to advertise and sell Pearl Life cookware on the Internet until at least October 15, 2010.
21. In sum, immediately before filing bankruptcy, Yang made a purchase of approximately $20,000 (retail price) of inventory, failed to pay his manufacturer and got the invoice for that purchase discharged in bankruptcy, then kept and sold that inventory before, during, and after his bankruptcy case, while not disclosing to the Bankruptcy Court the existence of that inventory and the money he obtained by selling it.
22. Yang operated an online business at Kissmixer.com selling a kitchen mixer and various housewares for several years before his 2009 bankruptcy, during his bankruptcy, and after his bankruptcy case was closed. Before his bankruptcy, he operated that business using the name of defendant STP. After his bankruptcy, he operated that business under the name of defendant Dong Yang.
23. The Court takes judicial notice of the records of the California Secretary of State. Those records show that defendant STP is a dissolved corporation, and that defendant Dong Yang Science, Inc. is a suspended corporation.
24. In sum, Yang continuously operated the Kissmixer.com Business before, during, and after his bankruptcy, but never told the Bankruptcy Court about either that domain, that ongoing business, or the product inventory or income that would naturally have been associated with that business.
25. Any conclusion of law that is later determined to be an uncontroverted fact is hereby stated ...