The opinion of the court was delivered by: William Alsup, United States District Judge.
For the reasons stated in this Court's order and permanent injunction, dated April 1, 2003, judgment is entered against defendant and in favor of plaintiff.
ORDER GRANTING PLAINTIFF'S APPLICATION FOR DEFAULT
JUDGMENT AND PERMANENT INJUNCTION
This order GRANTS plaintiff's application for default judgment and a permanent injunction in an action for trade-name infringement under 15 U.S.C. § 1125 (a), unfair competition under Section 17200 of the California Business and Professions Code, and false advertising under Section 17500 of the California Business and Professions Code.
On November 26, 2002, plaintiff Conifer Securities, LLC, filed a complaint against Conifer Capital LLC for damages and injunctive relief. The complaint asserts three causes of action: trade-name infringement under 15 U.S.C. § 1125 (a), unfair competition under Section 17200 of the California Business and Professions Code, and false advertising under Section 17500 of the California Business and Professions Code.
To support these claims, the complaint alleges the following facts. Plaintiff, Conifer Securities, is a broker-dealer firm based in San Francisco (Compl. ¶ 7). The company provides brokerage services to individuals and institutions and is a "market maker in many over-the-counter equity securities, trading actively intra-day for its own account with its own capital" (id. ¶¶ 7-8). The company was founded under a different name in 1989 and has been doing business as Conifer Securities since 1999 (id. ¶ 9). Conifer Securities uses its name in conjunction with advertising and on promotional materials, a website, letterhead and other business-related documents (ibid.). According to the complaint, Conifer Securities has earned an excellent reputation for its services and has garnered strong goodwill in the San Francisco Bay Area and nationally (id. ¶ 10).
The complaint further alleges that defendant Conifer Capital is a new day-trading firm located in San Francisco (id. ¶ 11). Defendant advertised job openings for the position of "proprietary day trader" on a website (ibid.).
Plaintiff has received at least four inquiries from customers expressing confusion as to the relationship between Conifer Securities and Conifer Capital (id. ¶ 12). On October 24, 2002, counsel for plaintiff sent a cease-and-desist letter to Conifer Capital demanding that the latter stop using the Conifer Capital name (id. ¶ 13). Although the letter requested a response by October 31, 2002, none was received (ibid.).
Plaintiff served defendant with the summons and complaint on December 4, 2002. Defendant did not serve plaintiff with a responsive pleading within twenty days, as required by Federal Rule of Civil Procedure 12(a)(1)(A), or otherwise appear in this case. Default was entered on January 24, 2003. Plaintiff now requests entry of judgment by default and relief in the form of a permanent injunction.
Under Federal Rule of Civil Procedure 55(b)(2), a party can apply to the court for entry of judgment by default. Whether to grant a motion for default judgment is within the discretion of the trial court. Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956). In the Ninth Circuit, a court is to consider the following factors in exercising this discretion:
(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 a dispute
concerning material facts, (6) whether the default was
due to excusable neglect, and (7) the strong policy
underlying the Federal Rules of Civil Procedure
favoring decisions on the merits.
Eitel v. ...