E.I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporation, Plaintiff,
STEVEN A. DRABEK, an individual, doing business as SCIENTIFIC EQUIPMENT OF HOUSTON, and DOES 1 through 10, Defendants.
ANDREA E. BATES, ESQ. SBN 192491, Abates@Bates-bates.com, BATES & BATES, LLC, Atlanta, Georgia, Attorneys for Plaintiff E.I. Du Pont de Nemours and Company.
ORDER GRANTING PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT AND A PERMANENT INJUNCTION AGAINST DEFENDANT STEVEN A. DRABEK, AN INDIVIDUAL, DOING BUSINESS AS SCIENTIFIC EQUIPMENT OF HOUSTON
DEAN D. PREGERSON, District Judge.
Before the Court is Plaintiff E.I. DU PONT DE NEMOURS AND COMPANY'S ("DuPont") Application for Default Judgment and Permanent Injunction. The Court finds that DuPont has demonstrated that default judgment is appropriate in this case and GRANTS the Application for Default Judgment and Permanent Injunction.
The following facts are set forth in the Complaint: DuPont is a Delaware corporation with a principal place of business at 1007 Market Street, Wilmington, Delaware 19898. [Complaint at § 2.] DuPont is a science company engaged in the development, manufacture, sale and distribution of a wide variety of products and ingredients in the United States and throughout the world. [ Id. at § 3.] DuPont is informed and believes, and based thereon alleges, that Defendant Steven A. Drabek is an individual with an address of 24201 FM 2154 Rd, Navasota, Texas 77868. [ Id. at § 3.] DuPont is informed and believes, and based thereon alleges, that Defendant Steven A. Drabek is doing business as Scientific Equipment of Houston, which is engaged in the promotion and sale of various products in the United States, including in this District, at its business location and through its websites at http://www.labmiser.com and http://www.agile-fx.com. [ Id. at § 3.]
In the late 1930's, DuPont discovered a method to polymerize tetrafluoroethylene to form a fluoropolymer compound known as polytetrafluoroethylene ("PTFE"). [ Id. at § 10.] PTFE is both slippery and chemically inert making it useful in a wide variety of different products. [ Id. ] In approximately 1944, DuPont adopted and began to use the name and mark TEFLON§ ("TEFLON§ Mark") for its PTFE products and began to sell TEFLON§ brand PTFE directly to manufacturers and others for use in a wide variety of products. [ Id. at § 11.] DuPont alleges that the TEFLON§ Mark is fanciful. [ Id. ]
DuPont TEFLON§ fluoropolymer products have been a commercial success. [ Id. ] Since 1944, DuPont has generated millions of dollars in revenue from the sale of TEFLON§ products and the licensing of the TEFLON§ Mark. [ Id. ] DuPont and its related companies have spent millions of dollars in the advertising and promotion of the TEFLON§ Mark and the products sold under the TEFLON§ Mark. [ Id. at § 12.]
As a result of the quality of the DuPont TEFLON§ fluoropolymer products and the extensive sales, licensing and marketing, advertising and promotion of these products under the TEFLON§ Mark by DuPont and its related companies, DuPont alleges the TEFLON§ Mark has become a famous trademark that is widely and favorably known by consumers in the United States and elsewhere as designating high quality and dependable products originating exclusively from DuPont and its related companies. [ Id. at § 13.]
DuPont alleges it is the exclusive owner of a number of United States Trademark Registrations for the TEFLON§ Mark for a variety of products and ingredients dating back to 1946. These include: (a) Reg. No. 0, 418, 698 for the mark TEFLON§ for "synthetic resinous fluorine-containing polymers in the form of molding and extruding compositions, fabricated shapes - namely, sheets, tubes, tape and filaments, and emulsions;" (b) Reg. No. 0, 559, 331 for TEFLON§ for "polytetrafluoroethylene coatings in the nature of paints and varnishes;" (c) Reg. No. 0, 623, 605 for TEFLON§ for "fibers and filaments in the nature of threads and yarns adapted to be used in making fabrics;" (d) Reg. No. 0, 676, 166 for TEFLON§ for "films or sheets made from polymers of fluorinated hydrocarbons for use in packaging applications, in electrical and non-electrical insulation, as protective liners for containers and equipment, in tapes, in machinery parts, in covering, coating, and packing substances, in hose and piping, and for general use in the industrial arts;" (e) Reg. No. 0, 827, 105 for TEFLON§ for "coatings in the nature of paint, based on fluorine-containing resins;" (f) Reg. No. 0, 835, 374 for TEFLON-S§ for "stratified non-stick and self-lubricating finishes for use as industrial and consumer product coatings for bearings, idler rolls, ceramic resistors, hand saws, lawn and garden tools, and the like;" (g) Reg. No. 1, 111, 147 for TEFLON§ for "chemical compound in the nature of a textile finish with oil, water, and stain repellant characteristics;" (h) Reg. No. 1, 592, 650 for TEFLON§ for "fluorine-containing polymers in resin and dispersion form for use as additives in inks, plastics, lubricants, coating, and other host materials where attributes such as lubricity, friction reduction, nonstick, and temperature and chemical resistance are desired;" (i) Reg. No. 2, 601, 355 for TEFLON§ for "windshield wiper blades;" and (j) Reg. No. 3, 206, 677 for TEFLON§ for "cleaning preparations, shampoos, wax and polish for automobiles". [ Id. at § 15.]
DuPont is informed and believes, and based thereon alleges, that Defendant manufactures and sells a variety of lab equipment products for life science, chemical and diagnostics research markets. [ Id. at § 18.] DuPont is informed and believes, and based thereon alleges, that Defendant offers for sale and sells some products in connection with the TEFLON§ Mark that do not contain genuine DuPont TEFLON§ fluoropolymer or otherwise are not authorized to be sold under the TEFLON§ Mark ("Scientific Equipment of Houston Unauthorized Products"). [ Id. at § 19.] DuPont is informed and believes, and based thereon alleges, that Defendant has manufactured, advertised, and sold the Scientific Equipment of Houston Unauthorized Products on its Internet websites with the intent of misappropriating, for its own benefit, the tremendous goodwill built up by DuPont in the TEFLON§ Mark. [ Id. at § 20.]
DuPont alleges that Defendant's unauthorized use of the TEFLON§ Mark was intended to cause, has caused, and is likely to continue to cause consumer confusion; that it is damaging the reputation and goodwill of TEFLON§ Mark; and that it is causing irreparable harm to DuPont. [ Id. at § 25-26.] DuPont alleges that Defendant's use of the TEFLON§ Mark constitutes willful, deliberate and intentional infringement of DuPont's federally registered trademarks for the TEFLON§ Mark in violation of § 32(1) of the Lanham Act (15 U.S.C. § 1114(1)). [ Id. at § 30.]
As presently before the Court is Plaintiff's Application of Entry of Default Judgment, the Court must accept the above allegations as true.
B. Procedural Posture
On December 10, 2012, DuPont filed its Complaint against Defendant for: (1) Trademark Infringement; (2) Trademark Counterfeiting; (3) False Designation of Origin and Unfair Competition Under the United States Trademark Act; (4) False Description of Fact and Representations and False Advertising Under the United States Trademark Act; (5) Trademark Dilution Under the United States Trademark Act; (6) Trademark Dilution Under California State Law; (7) Unfair Competition in Violation of California Business & Professions Code § 17200; (8) Common Law Trademark Infringement and Unfair Competition; (9) California Trademark Infringement, Dilution and Deceptive Acts and Practices; and (10) Accounting.
On December 12, 2012, DuPont perfected service of the Summons and Complaint upon Defendant in Compliance with the Federal Rules of Civil Procedure, as evidence by the Proof of Service that was filed with this Court on December 18, 2012, and attached as Exhibit "A" to the Declaration of Andrea E. Bates ("Bates Decl."). [ See Bates Decl. at § 2.] As Defendant failed to file an Answer or otherwise respond to the Complaint, Plaintiff filed its Request for Entry of Default with the Clerk on February 11, 2013. [ See Bates Decl. at § 3.] Subsequently, the Clerk entered a default against Defendant on February 12, 2013. [ See Bates Decl. at § 4.]
On February 11, 2012 Plaintiff filed an Application for Default Judgment and Permanent Injunction against Defendant and a Memorandum of Points and Authorities in Support of Application for Default Judgment and Permanent Injunction. Plaintiff also submitted the Declaration of Andrea. E. Bates, Esq. in Support of the Application, which states, inter alia, that Defendant continues its infringing conduct as of the date of the Application. [ See Bates Decl.] That application is presently before the Court.
II. LEGAL STANDARD
Rule 55(b)(2) of the Federal Rules of Civil Procedure requires the plaintiff to apply to a court for a default judgment in all cases where the requirements for a clerk-entered default judgment cannot be met. See Fed.R.Civ.P. 55(b)(2). An Applicant must apply to a court for a default judgment where: (1) the claim is for an amount that is not certain or capable of being made certain by computation; (2) the defendant, although in default, has appeared in the action; (3) the defendant ...