United States District Court, M.D. Louisiana
TIGER BROTHERS FOOD MART, INC.
RULING AND ORDER
A. JACKSON UNITED STATES DISTRICT JUDGE.
the Court is the Motion for Default Judgment (Doc. 21) and
the Motion for Default Judgment (Doc. 22) filed by Plaintiff
Sream, Inc., in which Plaintiff seeks a default judgment
against Defendant Tiger Brothers Food Mart,
Inc.Jurisdiction is proper under 28 U.S.C.
§ 1331. For the following reasons, the Motion for
Default Judgment (Doc. 21) and the Motion for Default
Judgment (Doc. 22) are GRANTED IN PART AND DENIED IN PART.
is a California corporation that, since at least 2013, has
been the exclusive licensee of the trademark "RooR"
in the United States. (Doc. 1 at p. 2). RooR is recognized
for its ornate glass products including borosilicate
jointed-glass water pipes, parts, and accessories. (Doc. 21
at p. 2). RooR products are allegedly superior in the market
place and consistently retail higher than those from other
brands. (Doc. 21 at p. 3). Defendant is a Louisiana
corporation that Plaintiff claims engaged in the unlawful
manufacture, retail sale, and/or wholesale sales of
counterfeit RooR branded water pipes and related parts. (Doc.
1 at p. 2).
filed its Complaint on September 20, 2017, asserting
violations of the Lanham Act, 15 U.S.C. § 1114.
Plaintiff seeks injunctive relief prohibiting Defendant from
using the RooR mark and damages. The Clerk of Court entered a
default on June 14, 2018 because Defendant failed to file an
answer or motion under Federal Rule of Civil Procedure 12.
(Doc. 19). Plaintiff then filed the pending Motion for
Default Judgment. (Doc. 21).
United States Court of Appeals for the Fifth Circuit has
adopted a three-step process to obtain a default judgment.
See New York Life Ins. Co. v. Brown, 84 F.3d 137,
141 (5th Cir. 1996). First, a default occurs when a party
"has failed to plead or otherwise defend" against
an action. Fed.R.Civ.P. 55(a). Next, an entry of default must
be entered by the clerk when the default is shown "by
affidavit or otherwise." See id.; New York
Life, 84 F.3d at 141. Third, a party may apply to the
court for a default judgment after an entry of default.
Fed.R.Civ.P. 55(b); New York Life, 84 F.3d at 141.
party files for a default judgment, a court must apply a
two-step process to determine whether a default judgment
should be entered. First, a court must consider whether the
entry of default judgment is appropriate under the
circumstances. Lindsey v. Prive Corp., 161 F.3d 886,
893 (5th Cir. 1998). Several factors are relevant to this
inquiry, including: (1) whether there are material issues of
fact at issue, (2) whether there has been substantial
prejudice, (3) whether the grounds for default have been
clearly established, (4) whether the default was caused by
excusable neglect or good faith mistake, (5) the harshness of
the default judgment, and (6) whether the court would think
itself obliged to set aside the default on a motion by the
a court must assess the merits of the plaintiffs claims and
determine whether the plaintiff has a claim for relief.
Nishimatsu Constr. Co. v. Houston Nat'l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975); Hamdan v. Tiger
Bros. Food Mart, Inc., 2016 WL 1192679, at *2 (M.D. La.
Mar. 22, 2016).
Default Judgment is Appropriate under the Lindsey
Court must first decide whether the entry of default judgment
is appropriate under the circumstances, by considering the
Lindsey factors. First, there are no material facts
in dispute because Defendant failed to file an answer or
motion under Rule 12. Second, there has been substantial
prejudice because Defendant's failure to appear in this
action leaves Plaintiff with no recourse for its alleged
injuries. (Doc. 21 at p. 5). Third, the grounds for granting
a default judgment against Defendant are clearly established,
as evidenced by the action's procedural history and the
Clerk's entry of default. (Doc. 19). Fourth, the Court
has no basis to find that Defendant's failure to respond
was the result of a good faith mistake or excusable neglect
because Defendant has failed to respond to Plaintiff or to
the Court. Fifth, Defendant's failure to file any
responsive pleading or motion mitigates the harshness of a
default judgment. Finally, the Court is not aware of any
facts that would lead it to set aside the default judgment if
challenged by Defendant. The Court therefore finds that the
six Lindsey factors weigh in favor of default.
The Sufficiency of the Pleadings
Court must also determine whether Plaintiffs pleadings
provide a sufficient basis for a default judgment. Plaintiff
sued Defendant under the Lanham Act, which provides that a
plaintiff must show that (1) it possesses a legally
protectable trademark and (2) the defendant's use of the
trademark creates a likelihood of confusion as to source,
affiliation, or sponsorship. Streamline Prod. Sys. v.
Streamline Mfg.,851 F.3d 440, 450 (5th Cir. 2017)
(quoting Nola Spice Designs, L.L.C. v. Haydel Enters.,
Inc.,783 F.3d 527, 536 (5th Cir. 2015)). It is
uncontroverted that Plaintiff is the exclusive licensee of
the legally protectable trademark RooR. (Doc. 22-2 at p. 2).
The United States Court of Appeals for the Fifth Circuit has
identified eight factors to determine whether a likelihood of
confusion exists: (1) the type of mark allegedly infringed,
(2) the similarity between the two marks, (3) the similarity
of the products or services, (4) the identity of the retail
outlets and purchasers, (5) the identity of the advertising
media used, (6) the defendant's ...