Roor v. Amex 1989 Inc.
| Decision Date | 27 October 2016 |
| Docket Number | Case No. 16-cv-61893-BLOOM/Valle |
| Parties | ROOR, Plaintiff, v. AMEX 1989 INC., Defendant. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court upon Plaintiff ROOR's ("Plaintiff" or "ROOR") Motion for Default Final Judgment, ECF No. [14] (the "Motion"). A Clerk's Default, ECF No. [12] was entered against Defendant Amex 1989 Inc. ("Defendant") on September 28, 2016, as Defendant failed to appear, answer, or otherwise plead to the Complaint, ECF No. [1], despite having been served.1 See Motion; see also ECF No. [8]. The Court has carefully considered the Motion, the record in this case, the applicable law, and is otherwise fully advised in the premises. For the reasons that follow, the Motion is granted.
On August 8, 2016, Plaintiff initiated this action, bringing trademark infringement claims under 15 U.S.C. §§ 1114, 1125(a), and 1125(c). See ECF No. [1] ("Complaint"). In the Complaint, Plaintiff states that it has been in business since 1996, and is a well-known brand among the public, engaged in the business of selling water pipes. See id. ¶¶ 5, 7. Plaintiff is theowner of a trademark registered to the United States Patent and Trademark Office as registration number 3675839, with a registration date of September 1, 2009 (hereinafter, the "Trademark"). See id. ¶ 6. The Trademark is associated with handcrafted water pipes, particularly high quality borosilicate jointed glass, which is stronger and more pliable than normal glass. See id. ¶ 8. In keeping with this superior standard, Plaintiff's products must first be purchased by the respective sellers from an authorized ROOR agent/vendor. See id. ¶ 10. Plaintiff has built a reputation within the industry, both in the United States and abroad, based on the high quality of its products. Because of this goodwill and reputation, the Trademark and ROOR in general have become famous. See id. ¶ 36. The name ROOR and the ROOR Trademark have earned a new meaning, as owning a ROOR product is considered among the best water pipe available. See id. Owning a ROOR product is considered a status symbol, as owning a ROOR means having the finest water pipe available. See id. ¶ 37.
Defendant is a Florida corporation, with principal places of business in Miami-Dade County. See id. ¶ 3. Defendant is described as being in the business of selling goods, including water pipes. See id. ¶ 12. Defendant does not have ROOR's consent to sell products that are not genuine ROOR goods. See id. ¶ 15. Despite this lack of consent, Plaintiff claims that Defendant sold goods that are not authentic (and that are inferior to) ROOR products, labeled with copies of the Trademark, or something so substantially similar to the Trademark that there exists a substantial likelihood of false affiliation to ROOR. See id. ¶¶ 16, 17, 18, 20. According to Plaintiff, Defendant is selling the products in the ordinary stream of commerce and the products are likely to be crossing state lines either for shipment to the Defendant, or through sales of the product to unknowing buyers. See id. ¶ 40. Further, Defendant has been "selling the product knowingly and the purpose is to try to make a profit off of the Trademark." Id. ¶ 41. As of thedate of this Order, Defendant has not responded to the Complaint or otherwise appeared in this action.
Pursuant to Federal Rule of Civil Procedure 55(b), the Court is authorized to enter a final judgment of default against a party who has failed to plead in response to a complaint. This Circuit maintains a "strong policy of determining cases on their merits and we therefore view defaults with disfavor." In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1295 (11th Cir. 2003). Nonetheless, default judgment is entirely appropriate and within the district court's sound discretion to render where the defendant has failed to defend or otherwise engage in the proceedings. See, e.g., Tara Prods., Inc. v. Hollywood Gadgets, Inc., 449 F. App'x 908, 910 (11th Cir. 2011); Dawkins v. Glover, 308 F. App'x 394, 395 (11th Cir. 2009); In re Knight, 833 F.2d 1515, 1516 (11th Cir. 1987); Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985); Pepsico, Inc. v. Distribuidora La Matagalpa, Inc., 510 F. Supp. 2d 1110, 1113 (S.D. Fla. 2007); see also Owens v. Benton, 190 F. App'x 762 (11th Cir. 2006) ().
A defendant's "failure to appear and the Clerk's subsequent entry of default against him do[es] not automatically entitle Plaintiff to a default judgment." Capitol Records v. Carmichael, 508 F. Supp. 2d 1079, 1083 (S.D. Ala. 2007). Indeed, a default is not "an absolute confession by the defendant of his liability and of the plaintiff's right to recover," Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1357 (S.D. Ga. 2004), but instead acts as an admission by the defaulted defendant as to the well-pleaded allegations of fact in the complaint. See Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) () (citations omitted); Descent v. Kolitsidas, 396 F. Supp. 2d 1315, 1316 (M.D. Fla. 2005) (); GMAC Commercial Mortg. Corp. v. Maitland Hotel Associates, Ltd., 218 F. Supp. 2d 1355, 1359 (M.D. Fla. 2002) (). Stated differently, "a default judgment cannot stand on a complaint that fails to state a claim." Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997). Therefore, before granting default judgment, "the district court must ensure that the well-pleaded allegations of the complaint . . . actually state a cause of action and that there is a substantive, sufficient basis in the pleadings for the particular relief sought." Tyco Fire & Security, LLC v. Alcocer, 218 F. App'x 860, 863 (11th Cir. 2007).
Upon a review of Plaintiff's submissions, the Court finds a sufficient basis in the pleading to enter default judgment in Plaintiff's favor. Because Defendant has not appeared, "all of Plaintiff's well-pled allegations in the Complaint are deemed admitted." Ordonez v. Icon Sky Holdings LLC, 2011 WL 3843890, at *5 (S.D. Fla. Aug. 30, 2011) (citing Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987)). Having reviewed the Complaint, the Court finds Plaintiff's allegations well-plead, and sufficient to establish Defendant's liability. Plaintiff brings claims for (1) willful trademark infringement and counterfeiting of the ROOR trademark in violation of 15 U.S.C. § 1114; (2) willful trademark infringement (false designation) in violation of 15 U.S.C. § 1125(a); and (3) willful trademark infringement (dilution) in violation of 15 U.S.C. § 1125(c). "[T]o succeed on a trademark infringement claim, a plaintiff must prove (1) that itsvalid mark was used in commerce by the defendant without consent, and (2) that the unauthorized use was likely to cause confusion, to cause mistake, or to deceive." General Motors Corp. v. Phat Cat Carts, Inc., 504 F. Supp. 2d 1278, 1283 (M.D. Fla. 2006); see Dieter v. B & H Indus. of Sw. Florida, Inc., 880 F.2d 322, 326 (11th Cir. 1989). "The plaintiff's use of the mark must also predate the defendant's potentially confusing mark." Ordonez, 2011 WL 3843890, at *5 (citing Tally-Ho, Inc. v. Coast Community College Dist., 889 F.2d 1018, 1023 (11th Cir. 1990)). Importantly, "[t]he 'likelihood of confusion test' does not require that a plaintiff prove that consumers would likely confuse the alleged infringer's product with the real product"; rather, "it is sufficient for a plaintiff to show that the unauthorized use of the trademark has the effect of misleading the public to believe that the user is sponsored or approved by the plaintiff." Gen. Motors Corp., 504 F. Supp. 2d at 1284 (internal quotations omitted).
Plaintiff alleges in the Complaint that ROOR has "been in business since 1996" and "is the owner of a trademark registered to the United States Patent and Trademark Office as registration number 3675839 . . . having a registration date of September 1, 2009." Complaint ¶¶ 5-6. Plaintiff also claims that "Defendant does not have ROOR's consent to sell products that are not genuine ROOR goods," and that "[d]espite this lack of consent, Defendant sold goods that are not authentic (and that are inferior to) ROOR products, labeled with copies of the Trademark, or something so substantially similar to the Trademark," creating "a substantial likelihood . . . [of] false affiliation to ROOR." Motion at 5 (citing Complaint at ¶¶ 15-18, 20). Plaintiff further alleges that Defendant is selling the products in the ordinary stream of commerce and that the products are likely to be crossing state lines. See Complaint ¶ 40. By default, Defendant has admitted the truth of these allegations. Accordingly, the Court finds that Plaintiff has established its claims against Defendant for trademark infringement.
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