USCA11 Case: 22-10926 Document: 58-3 Date Filed: 08/22/2023 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-10926 Non-Argument Calendar ____________________ TOP TOBACCO, L.P., REPUBLIC TECHNOLOGIES (NA), LLC, REPUBLIC TOBACCO, L.P., Plaintiffs-Appellees, versus GABSONS NOVELTIES, et al.,

Defendants,

DIAMOND J. WHOLESALE, LLC, d.b.a. Gabsons Novelties, USCA11 Case: 22-10926 Document: 58-3 Date Filed: 08/22/2023 Page: 2 of 6

____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:19-cv-02148-LMM ____________________ Before JORDAN, NEWSOM, and ED CARNES, Circuit Judges.

PER CURIAM: Diamond J Wholesale, LLC, and Raj Solomon, its sole owner and member, appeal a judgment of $11 million in statutory damages in favor of the plaintiffs (Top Tobacco, L.P., Republic Technologies (NA), LLC, and Republic Tobacco, L.P.) on their claims of willful trademark infringement under the Lanham Act, 15 U.S.C. §§ 1114 et seq. Following review of the parties’ briefs and the record, we affirm.1 Evidentiary Rulings. The appellants contend that the district court erred in excluding certain evidence (witness testimony and invoices) which purportedly would have shown that they and their suppliers had purchased the counterfeit products from a legitimate

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22-10926 Opinion of the Court 3 wholesaler named Star Importers. According to the appellants, this evidence would have shown that they and their suppliers believed that Star Importers was a large and reputable seller of the plaintiffs’ products. And that, the appellants say, would have helped them defeat the plaintiffs’ claim that the trademark infringement was willful.

Reviewing for abuse of discretion, see Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1362–63 (11th Cir. 2002), we discern no er- rors. First, the district court did not abuse its discretion in exclud- ing the testimony of Steve Kent—one of the appellants’ suppliers— because, among other things, Mr. Kent did not purchase products from Star Importers during the time period relevant to this suit.

See D.E. 172 at 38–39. Second, the district court did not abuse its discretion in excluding the invoices under Rule 37 because the ap- pellants did not turn them over in discovery and only brought them to the district court’s attention a year or so after the discovery dead- line ended. See D.E. 154 at 17–19. In any event, even if the exclu- sion of the invoices constituted an abuse of discretion, any error was harmless because the invoices were not for transactions be- tween Diamond J and Star Importers—they were between Quick Save Food Mart (a convenience store owned by Mr. Solomon) and Star Importers. The invoices therefore do not bear on the appel- lants’ purported good faith in obtaining the counterfeit products at issue, and any error in excluding them was harmless. See Luxottica USCA11 Case: 22-10926 Document: 58-3 Date Filed: 08/22/2023 Page: 4 of 6

Mr. Solomon’s Individual Liability. Mr. Solomon challenges the district court’s grant of summary judgment holding him indi- vidually liable for trademark infringement. He asserts that knowledge of infringement is required for individual liability under the Lanham Act, and that—as the district court originally thought—there are genuine issues of fact about his state of mind.

We conclude that the district court did not err. Under 15 U.S.C. § 1114(1)(a)—which in relevant part prohibits the use in With respect to the matter of financial data about Diamond J and its compet- itors, the appellants were able to testify and comment on Diamond J’s small size and the restrictive effect that its size had on purchasing directly from Top Tobacco. Any error respecting that evidence was therefore also harmless.

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22-10926 Opinion of the Court 5 commerce of counterfeit marks—a “showing of intent or bad faith is unnecessary to establish a violation[.]” Chanel, Inc. v. Italian Ac- tivewear of Fla., Inc., 931 F.2d 1472, 1476 (11th Cir. 1991). And an individual is liable under that provision if he “actively and know- ingly caused the infringement.” See id. at 1477.

In Chanel we affirmed a district court’s summary judgment order holding a corporate official individually liable because he (1) was the president and CEO of the infringing company, (2) pur- chased the infringing goods, (3) advertised those goods as legiti- mate, and (4) operated the showroom where the goods were sold.

See id. at 1478. Here Mr. Solomon was the owner and sole member of Diamond J, and he stipulated that he was “chiefly responsible for buying and selling the counterfeit products and therefore ‘actively caused the infringement as a moving, conscious force.’” D.E. 130– at ¶ 3. This was sufficient for the district court to grant summary judgment against him on the issue of individual liability. See Chanel, F.2d at 1478 n.8 (explaining that an individual is liable if he “ac- tively participated as a moving force in the decision to engage in the infringing acts, or otherwise caused the infringement as a whole to occur”) (emphasis omitted). See also Edmondson v. Velvet Lifestyles, LLC, 43 F.4th 1153, 1164 (11th Cir. 2022) (“In other words, a corporate officer who directs, controls, ratifies, participates in, or is the moving force behind the infringing activity is personally lia- ble for that infringement.”) (internal quotation marks and citation omitted).

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AFFIRMED.