United States District Court, N.D. California, San Jose Division
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT
JUDGMENT AGAINST DEFENDANTS ERIC BOUCHOUEV AND JARED KELLY
AKA ALEX RENFROW [RE: ECF 68]
LABSON FREEMAN UNITED STATES DISTRICT JUDGE.
Twitch Interactive, Inc. (“Twitch”) brings this
action against Erik Bouchouev, Justin Johnston, Michael and
Katherine Anjomi, Pooria Sharaffodin, Marco Pelagatti, and
Alex Renfrow, whose true name is Jared Kelly, for allegedly
providing bot services that artificially inflate broadcaster
popularity statistics in Twitch's video streaming
services, thereby harming Twitch and its user community.
Complaint ¶¶ 1-6, ECF 1. On March 1, 2017, the
Court entered a stipulated judgment in favor of Twitch and
against Defendant Johnston. ECF 38. On March 8, 2017, the
Clerk of Court entered default as to Bouchouev, the Anjomis,
and Renfrow/Kelly. ECF 41. Twitch dismissed this action
against Sharaffodin and Pelagatti without prejudice on May
19, 2017. ECF 46. On January 18, 2018, the Court entered an
order of default judgment against the Anjomis, ordering them
to pay actual damages and statutory damages. ECF 55. The same
day, the Court issued a judgment and permanent injunction
against the Anjomis. ECF 56; ECF 57.
the Court is Twitch's Motion for Default Judgment against
Eric Bouchouev and Jared Kelly AKA Alex Renfrow (together,
“Defendants”), whereby Twitch seeks default
judgment on the following claims: (1) trademark infringement
in violation of 15 U.S.C. § 1114; (2) unfair competition
in violation of 15 U.S.C. § 1125(a); (3) violation of
the Anti-Cybersquatting Consumer Protection Act
(“ACPA”), 15 U.S.C. § 1125(d); and (4)
breach of contract. Motion for Default Judgment
(“Motion”) at 13-18, ECF 68. Twitch also requests
an award of Bouchouev's profits, statutory damages from
Renfrow/Kelly and Bouchouev, attorney's fees and costs,
and injunctive relief. See Motion at 19-25.
Defendants have neither appeared nor filed an opposition. The
Court previously found this matter suitable for submission
without oral argument. ECF 73. Having carefully considered
Twitch's submissions, the Court hereby GRANTS
Twitch's Motion for Default Judgment.
Twitch's Business and Trademarks
in 2011, Twitch provides an online service through which
users can broadcast themselves playing video games and other
content. Complaint ¶ 21. The broadcasters interact with
their audiences by participating in activities such as
chatting and running promotions. Id. ¶ 22. Each
broadcaster has a distinct “broadcaster channel”
which consists of a chat window and a Twitch video player
through which other Twitch users can view the
broadcaster's video. Id. ¶ 24. Viewers who
have registered a Twitch account can participate in
“chat” and “follow” broadcasters.
Id. ¶¶ 25-26.
measures certain statistics about a broadcaster's stream,
including the (1) current number of viewers watching the
stream; (2) total number of viewers who have watched the
stream; and (3) total number of followers. Complaint ¶
27. The statistics are used to calculate the popularity of
the content provided by the broadcaster. Id. ¶
28. For example, higher viewership numbers may lead to a
higher position in the directory of channels and provide
monetization opportunities to the broadcaster. Id.
can earn money directly through Twitch's Partnership
Program. Through that program, Twitch shares revenues with
"Partners." Complaint ¶¶ 2, 30. While any
broadcaster may apply to become a Partner, Twitch accepts
only broadcasters who meet certain qualifications.
Id. ¶ 30. The qualifications include a
consistently high number of viewers and followers.
owns rights in the TWITCH trademark (U.S. Registration No. 4,
275, 948) and TWITCHTV trademark (U.S. Registrations Nos. 4,
087, 877 and 4, 230, 874) and has applied for registration of
its "Glitch Logo" (U.S. App. Serial No. 86, 485,
295). Complaint ¶ 32; Ex. H to Complaint. The TWITCH
mark "consists of standard characters without claim to
any particular font, style, size, or color." Ex. Hto
Complaint; Ex. A to Decl. in Supp. of Mot. ("Hall
Decl."), ECF 69-1. Twitch owns common law rights in the
TWITCH trademark and the Glitch Logo. Complaint ¶ 32.
When providing its services, Twitch uses a purple and white
color scheme with a distinct font and logo. Id.
¶ 33. Presented below is an example of Twitch's font
and logo and the Glitch Logo (the stylized comment bubble
above "twitch"). Id.
Bouchouev and Renfrow/Kelly's Use of Twitch's
operates websites located at twitch-viewerbot.com,
twitch-buddy.com, twitchviewerbot.net, streambot.com,
andblackdesertbot.com. Complaint ¶ 52. According to
Twitch, Bouchouev entices broadcasters to use bot services to
artificially inflate the usage associated with the
broadcasters' channels. See Id. ¶ 54. For
example, on www.twitch-viewerbot.com, Bouchouev offers, among
other things, "Viewer Bot," "Chat Bot,"
"Follower Bot," and "Twitch Partnership"
services. Id. ¶ 53. On various websites,
Bouchouev offers numerous bot services packages that he
claims will help the customers gain more viewers. See
Id. ¶¶ 56-57, 59-60, 62-64. Bouchouev
advertises his bot services on TwitchViewerbot.Net,
StreamBot, and Twitch Viewer Bot Facebook accounts, as well
as his Twitch Viewer Bot Twitter, Twitch Viewer Google Plus,
and Streambot YouTube accounts. Complaint ¶ 67; Ex.
B-III to Complaint.
Renfrow/Jared Kelly operates websites located at
www.streamhomies.com and www.famehomies.com, which links to
www.streamhomies.com. Complaint ¶ 114; Ex. G to
Complaint. Similar to Bouchouev, Renfrow/Kelly entices
broadcasters to use bot services to artificially inflate the
usage associated with the broadcasters' channels.
Complaint ¶ 115. On various websites, Renfrow/Kelly
offers numerous bot services packages that he claims will
help the customers gain more viewers. See Id.
¶¶ 116-17. Twitch also claims that
“Renfrow[/Kelly] uses the TWITCH mark in commerce
without Twitch's permission, ” and that this usage
will likely deceive consumers. Id. ¶ 120.
register an account or use Twitch's services, a user must
agree to Twitch's Terms of Service, Rules of Conduct, API
Terms of Service, and Trademark and Brand Asset Guidelines
(collectively, the “Terms”). Complaint ¶ 34.
The Terms prohibit various activities, including the use of
any “robot . . . or other automated means to access the
Twitch Service for any purpose”; “impersonat[ing]
any person or entity . . . misrepresent[ing] the source,
identity, or content of information transmitted via the
Twitch Service”; “manipulat[ing] identifiers in
order to disguise the origin of any Content transmitted
through the Twitch Service”; “mak[ing]
unsolicited offers, advertisements”; and “us[ing]
the Twitch Service in any manner that would . . . negatively
affect or inhibit other users from fully enjoying the Twitch
Service or that could damage the functioning of the Twitch
Service in any manner.” Id. ¶ 37
(alterations in original); see also Ex. A to
Complaint at 8-9. The Terms also prohibit the use of
Twitch's trademarks without prior written permission of
Twitch. Complaint ¶ 40.
to Twitch, Defendants “agreed to abide by the Terms by
registering an account with Twitch, using the Twitch
services, and/or by accessing the Twitch services to, among
other things, develop, test, or use their bots.”
Complaint ¶ 42. Twitch contends that Defendants violate
the Terms by offering and advertising their bot services.
Id. ¶¶ 45-48, 155-64.
turning to the merits, the Court must first address its
jurisdiction to enter default judgment against Defendants.
Subject matter jurisdiction is indisputably available under
28 U.S.C. §§ 1331, 1338, and 1367, as some of
Twitch's claims arise under federal law. The Court must
also have personal jurisdiction over a defendant, or else the
entry of default judgment is void. Veeck v. Commodity
Enterprises, Inc., 487 F.2d 423, 426 (9th Cir. 1973).
Here, as discussed below, the Court is satisfied that (1)
Defendants have been served and that (2) this Court has
personal jurisdiction over Defendants because they consented
to Twitch's Terms which contain a California forum
Amending the Caption to Include Kelly as a Defendant
requests that the Court amend the caption of the complaint to
include Jared Kelly as a Defendant on the basis that Jared
Kelly is the true name of Alex Renfrow. See Motion
at 12. Twitch argues that Jared Kelly is the true name of the
person who operated the bot websites at www.streamhomies.com
and www.famehomies.com. Id. Twitch presents evidence
that “Alex Renfrow” is a pseudonym for the
defendant providing the bot services available at
www.streamhomies.com and www.famehomies.com and that the
individual operating these websites is actually named Jared
Kelly. See Decl. in Supp. of Mot. (“Simpkins
Decl.”) ¶ 4, ECF 70; Ex. C to Simpkins Decl., ECF
encourages courts to “freely give leave [to amend] when
justice so requires.” Fed.R.Civ.P. 15(a)(2). The Court
considers whether an amendment would prejudice Mr. Kelly.
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003) (explaining that prejudice is the
critical factor when examining whether amendment is
appropriate). Here, Kelly has received notice of this lawsuit
and all of the pleadings filed herein given that Twitch
successfully emailed him at the email address
email@example.com. Further, there is no doubt that Mr.
Kelly is aware of his own pseudonym. See Order at 3;
Proof of Service at 1, ECF 34. The Court finds that it would
be in the interest of justice to include Kelly because it
will ensure that the correct person is named and properly
held accountable. Accordingly, the Court GRANTS
Plaintiff's request to amend the caption of the complaint
to include Jared Kelly as a Defendant. All allegations in the
complaint against “Alex Renfrow” shall be deemed
to be allegations against Jared Kelly.
Service of Process
federal court is without personal jurisdiction over a
defendant unless the defendant has been served in accordance
with Federal Rule of Civil Procedure 4.” Travelers
Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132,
1135 (9th Cir. 2009). However, “Rule 4 is a flexible
rule that should be liberally construed so long as a party
receives sufficient notice of the complaint.”
United Food & Comm. Workers Union v. Alpha Beta
Co., 736 F.2d 1371, 1382 (9th Cir. 1984). What is
required is “substantial compliance” with Rule 4,
with “neither actual notice nor simply naming the
defendant in the complaint” being sufficient.
Direct Mail Specialists, Inc. v. Eclat Computerized
Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (quoting
Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986),
cert. denied, 484 U.S. 870 (1987)).
Court is satisfied that Twitch has “substantially
complied” with Rule 4. Twitch initially attempted to
personally serve Defendants. See Motion to Serve Via
Alternative Means at 4-6, ECF 29. Twitch engaged private
investigators to locate Defendants but to no avail.
Id. at 6, 8. Twitch subsequently sent the complaint
and summons to Defendants via FTP and confirmed that none of
the emails were returned as undeliverable. Id. at 3.
The Court was satisfied by Twitch's showing. In its Order
Granting Twitch's Motion to Serve Via Alternative Means
(“Order, ” ECF 33), the Court found that service
by e-mail would be “reasonably calculated to give
actual notice” to Defendants because Twitch's
multiple emails were successfully delivered to
Defendants' email addresses. See Order at 2-4.
On January 24, 2017, Twitch filed a Proof of Service, ECF 34,
demonstrating compliance with the Court's Order along
with service of the complaint and associated documents to
the Court finds that Kelly has been effectively served with
notice of the amended complaint, which adds him as a
defendant here. Kelly received email notice of Twitch's
motion requesting to amend the complaint to add him at three
of his email accounts. See Motion at 33. Service on
Kelly of the motion and the request to add him substantially
complied with Rule 4 and this Court's prior order
allowing service on Defendants by email. Insofar as service
can only be accomplished by email to Kelly, the Court finds
that Kelly has received notice of the amendment to the
complaint and, thus, further service of the amendment to the
complaint is waived. See Order at 2-4. Kelly did not
oppose the motion. Therefore, under these circumstances, the
Court concludes that Defendants have been appropriately
served and afforded fair notice of this action.
Complaint includes allegations directed to the jurisdiction
issue. See Complaint ¶¶ 10-11, 16.
Particularly, the Complaint pleads that “by using
Twitch's services and website, Defendants have agreed to
jurisdiction within Santa Clara County. Twitch's Terms of
Service provide ‘that the state or federal courts in
Santa Clara County, California have exclusive jurisdiction .
. . over any suit between the parties not subject to
arbitration.'” Id. ¶ 11. Indeed,
Twitch's Terms of Service include such a forum selection
clause. Ex. A to Complaint at 14. Hence, users of
Twitch's services are subject to a forum selection clause
that chooses California.
to a contract may agree in advance to submit to the
jurisdiction of a given court.” National Equip.
Rental, Ltd. v. Szukhent, 375 U.S. 311, 316 (1964).
“[T]he court need not embark on a ‘minimum
contacts' analysis where the defendants have consented to
California jurisdiction.” Craigslist, Inc. v.
Kerbel, No. 11-CV-3309-EMC, 2012 WL 3166798, at *6 (N.D.
Cal. Aug. 2, 2012) (citing Zenger-Miller, Inc. v.
Training Team, GmbH, 757 F.Supp. 1062, 1069 (N.D. Cal.
1991)). Forum selection clauses in contracts are
presumptively valid. M/S Bremen v. Zapata Off- Shore
Co., 407 U.S. 1, 10 (1972). The Ninth Circuit has
recognized that accepting a forum selection clause
demonstrates consent to personal jurisdiction in that forum.
See SEC v. Ross, 504 F.3d 1130, 1149 (9th Cir.
2007). As such, courts have found personal jurisdiction based
on consent to forum selection clauses contained in internet
Kerbel, 2012 WL 3166798, at *6. Accordingly, the
Court may enforce the forum selection clause unless it is
unreasonable. See Id. (citing
Zenger-Miller, 757 F.Supp. at 1069).
the forum selection clause in Twitch's Terms of Service
provides that “courts in Santa Clara County, California
have exclusive jurisdiction.” Complaint ¶ 11; Ex.
A to Complaint at 14. To have their bots participate in the
chat and follow broadcasters, Defendants agreed to
Twitch's Terms of Service. See Complaint
¶¶ 25-26, 34, 42. There is no indication that
Twitch's Terms of Service is either unfair or
unreasonable. Defendants have not appeared to raise any
challenge to the Terms of Service's forum selection
clause. The Court, therefore, concludes that the forum
selection clause is enforceable and that the Court may
properly exercise personal jurisdiction over Defendants based
on their consent to Twitch's Terms of Service. Because
Defendants consented to personal jurisdiction, the Court need
not consider the analysis for general and specific
ANALYSIS OF TWITCH'S MOTION FOR DEFAULT JUDGMENT
to Federal Rule of Civil Procedure 55(b), the Court may enter
default judgment against a defendant who has failed to plead
or otherwise defend an action. “The district
court's decision whether to enter a default judgment is a
discretionary one.” Aldabe v. Aldabe, 616 F.2d
1089, 1092 (9th Cir. 1980).
exercising its discretion to enter default judgment, a
district court considers seven factors set forth by the Ninth
Circuit in Eitel v. McCool, 782 F.2d 1470, 1471-72
(9th Cir. 1986) (“Eitel factors”): (1)
the possibility of prejudice to the plaintiff; (2) the merits
of plaintiff's substantive claim; (3) the sufficiency of
the complaint; (4) the sum of money at stake in the action;
(5) the possibility of dispute concerning material facts; (6)
whether default was due to excusable neglect; and (7) the
strong policy underlying the Federal Rules of Civil Procedure
favoring decisions on the merits. In considering these
factors after a clerk's entry of default, the court takes
all well-pleaded factual allegations in the complaint as
true, except those with regard to damages. Televideo
Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.
1987). “The Court may, in its discretion, consider
competent evidence and other papers submitted with a motion
for default judgment to determine damages.”
Bittorrent, Inc. v. Bittorrent Mktg. GMBH, No.
12-CV-2525-BLF, 2014 WL 5773197, at *8 (N.D. Cal. Nov. 5,
2014) (citing Televideo, 826 F.2d at 917-18). Only
the merits and sufficiency of Twitch's claims (second and
third factors) and the amount of money at stake (fourth
factor) warrant in-depth analysis.
Merits of Twitch's Claims and Sufficiency of the
Trademark Infringement (15 U.S.C. § 1114)
prove infringement of a registered trademark, a plaintiff
must demonstrate that it “owns a valid mark, and thus a
protectable interest” and that the defendant's
“use of the mark ‘is likely to cause confusion,
or to cause mistake, or to deceive.'” Lahoti v.
VeriCheck, Inc., 586 F.3d 1190, 1196 (9th Cir. 2009)
(quoting KP Permanent Make-Up, Inc. v. Lasting Impression
I, Inc., 408 F.3d 596, 602 (9th Cir. 2005));
see 15 U.S.C. § 1114(1)(a), (b). Here, Twitch
has properly alleged and demonstrated that it owns a valid
mark and protectable interest in the TWITCH mark and the
“Glitch” logo by supplying evidence that the
marks are federally registered by the United States Patent
and Trademark Office. Complaint ¶ 32; Ex. H to
Complaint; 15 U.S.C. § 1115(a) (stating that
registration on principal register is prima facie
evidence of validity, ownership, and exclusive right to use
the allegations in the Complaint as true, Twitch has also
sufficiently demonstrated that Defendants' use of
Twitch's marks is likely to cause confusion under the
factors identified in AMF Inc. v. Sleekcraft Boats,
599 F.2d 341, 349 (9th Cir. 1979) (identifying eight factors
including (1) strength of the mark; (2) proximity of the
goods; (3) similarity of the marks; (4) evidence of actual
confusion; (5) marketing channels used; (6) type of goods and
degree of care likely to be exercised by the purchaser; (7)
defendant's intent in selecting the mark; and (8)
likelihood of expansion of the product lines). The
Sleekcraft test is “a fluid one and the
plaintiff need not satisfy every factor, provided that strong
showings are made with respect to some of them.”
Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d
625, 631 (9th Cir. 2005). Applying these factors ...