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Premier South, LLC v. Premier Roofing, LLC

United States District Court, M.D. Louisiana

December 20, 2019

PREMIER SOUTH, LLC
v.
PREMIER ROOFING LLC, ET AL.

          RULING AND ORDER

          BRIAN A. JACKSON JUDGE

         Before the Court is Plaintiffs Motion for Remedies (Doc. 49). Plaintiff requests an injunction, damages, attorney's fees, and costs and expenses. Id. Defendant did not file an opposition to the motion and oral argument on this matter is not necessary. For the following reasons, Plaintiffs Motion is GRANTED.

         I. BACKGROUND

         Plaintiff and Defendants are roofing contractors. (Doc. 44-1 at p. 7). Plaintiff operates under the name "Premier South," while Defendants operate under the name "Premier Roofing." Id. Plaintiff owns the trademark rights to the name "Premier South." Id. Plaintiff alleges that Defendants' name and mark are confusingly similar to his mark, "Premier South," constituting willful trademark infringement. Id. Plaintiff also alleges that Defendants promised to rebrand but did not. Id.

         Plaintiff further alleges that the parties entered into a settlement agreement on December 12, 2017, which Defendants breached. (Id. at p. 13). Plaintiff avers that after engaging in limited discovery, Defendants' attorney withdrew from this matter. (Id.). Plaintiff asserts that Defendants did not respond to or object to any of Plaintiff s discovery requests. (Id.). The Clerk of Court entered default against Defendants on January 9, 2019. (Doc. 39). The Court entered default judgment against Defendants on June 25, 2019 and instructed Plaintiff to prepare and submit a brief on the topic of damages, costs, attorney's fees, and other requested reliefs. (Doc. 48). Plaintiff then filed the motion sub judice. (Doc. 49).

         II. INJUNCTIVE RELIEF

         Plaintiff is requesting a permanent injunction against Defendants. The Lanham Act grants the Court discretion to enter an injunction to prevent continued infringement of a trademark. 15 U.S.C. § 1116(a). In order for a permanent injunction to issue, a plaintiff must show "that a commercial advertisement or promotion is either literally false or that the advertisement is likely to mislead and confuse consumers" and that the plaintiff "will suffer irreparable harm if the injunction is not granted." Logan v. Burgers Ozark Country Cured Hams, Inc., 263 F.3d 447, 465 (5th Cir. 2001) (quoting Seven-Up v. Coca-Cola Co., 86 F.3d 1379, 1390 (5th Cir. 1996)). Plaintiffs allegations have shown that Defendant's use of "Premier Roofing" is likely to confuse consumers as to the source of the goods and services provided. (Doc. 49-1 at p. 7). Plaintiff also alleges that the continued use of "Premier Roofing" will cause him irreparable harm by damaging his consumer goodwill. Id. As such, a permanent injunction is warranted.

         III. DAMAGES

         Upon a successful claim under 15 U.S.C. §1125, a plaintiff shall be entitled to recover the defendant's profits, damages sustained by the plaintiff, and the costs of the action. 15 U.S.C. § 1125. The awarding of profits is not automatic and is within the discretion of the court. Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 349 (5th Cir. 2002) (citing Champion Spark Plug Co. v. Sanders, 331 U.S. 125, 131 (1947); Pebble Beach Co. v. Tour 18 I, Ltd., 155 F.3d 526, 554 (5th Cir. 1998)). Relevant factors in this analysis include,

(1) whether the defendant had the intent to confuse or deceive, (2) whether the sales have been diverted, (3) the adequacy of other remedies, (4) any unreasonable delay by the plaintiff in asserting his rights, (5) the public interest in making the misconduct unprofitable, and (6) whether it is a case of palming off.

Id. (quoting Pebble Beach, 155 F.3d at 554). Similarly, the court is given broad discretion to determine "a just amount or recovery for trademark infringement." Martin's Herend Imports, Inc. v. Diamond & Gem Trading USA, Co., 112 F.3d 1296, 1304 (5th Cir. 1997).

         Plaintiff has submitted an affidavit estimating that Defendants completed fifteen (15) projects which would have been Plaintiffs projects had Defendants not infringed on Plaintiffs trademark. (Doc, 49-2 at p. 5). The average profit margin for these projects is $1, 500.00. Id. Defendants do not contest Plaintiff s evidence. Thus, Plaintiff is awarded $30, 000.00.

         Plaintiff also requests that the Court award twice the estimated amount of lost profits. Courts may enhance damages to "provide proper redress to an otherwise under compensated plaintiff where imprecise damage calculations fail to do justice, particularly where the imprecision results from [the] defendant' conduct." Taco Cabana Int'l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1127 (5th Cir. 1991). "An enhancement of damages may be based on a finding of willful infringement." Id. Given the evidence of willful infringement in this case, the Court grants Plaintiffs request.

         IV. ...


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