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Affinity Group, Inc. v. Balser Wealth Management

April 10, 2007

THE AFFINITY GROUP, INC. DBA EMERALD PUBLICATIONS, INC., PLAINTIFF,
v.
BALSER WEALTH MANAGEMENT, LLC, AN OHIO LIMITED LIABILITY COMPANY; ROGER BALSER, AN INDIVIDUAL, AND DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

(Doc. # 10)

ORDER

The matter before the Court is Plaintiff's Motion for Default Judgment. (Doc. # 10.)

I. Background

On August 4, 2005, Plaintiff instituted the above-styled trademark and copyright infringement action. (Doc. # 1.) On October 26, 2005, Plaintiff filed an Affidavit of Process Server indicating that Defendants were personally served by leaving the Complaint and Summons with Defendant Roger Balser in Ohio on September 26, 2005. (Doc. # 3.) On March 29, 2006, at the request of Plaintiff, the Clerk entered Default as to Defendants. (Doc. # 6.) On January 24, 2007, Plaintiff filed its Motion for Default Judgment (Doc. # 10) arguing that, as a matter of law, judgment should be entered awarding Plaintiff the sum of $13,292 (or $21,392 if the Court awards treble damages).

II. Allegations of the Complaint

Plaintiff is the owner of United States Trademark Registration No. 75/644,168, "Passport to Retirement," for use in conjunction with seminars and workshops to the public in the areas of retirement planning, investments, tax strategies, and estate planning. (Compl. ¶ 11, Ex. A.) Plaintiff has used its "Passport to Retirement" mark continuously since 1999, and has sold products under the mark nationwide, including in the State of Ohio. (Compl. ¶ 12.)

Defendant Roger Balser, and his alter ego Defendant Balser Wealth Management, have infringed Plaintiff's mark by advertising and using the name "Passport to Retirement" in connection with retirement seminars and related written materials. (Compl. ¶¶ 13, 33.) Defendants' use of the name is without Plaintiff's permission or authority, with actual and constructive notice of Plaintiff's federal trademark registration rights, and is likely to cause confusion, to cause mistake and/or to deceive. (Compl. ¶¶ 14-15.)

III. Motion for Default Judgment

A. Legal Standards

Federal Rule of Civil Procedure 55(b) provides that judgment by default may be entered by the Court. A district court may consider the following factors in exercising its discretion to enter a default judgment:

(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 decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

"In applying this discretionary standard, default judgments are more often granted than denied." Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). "The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quotation omitted). "Plaintiff is required to prove all damages sought in the complaint. In addition, '[a] judgment by default shall not be different in kind [or] exceed in amount that prayed for in the [complaint].' In determining damages, a court can rely on the declarations submitted by the plaintiff or order a full evidentiary hearing. Plaintiff's burden in 'proving up' damages is relatively lenient. If proximate cause is properly alleged in the complaint, it is admitted upon default. Injury is established and plaintiff need prove only ...


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