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Bird Gard LLC v. Sc Elite, Ltd.

United States District Court, Ninth Circuit

June 10, 2013

BIRD GARD LLC, et al., Plaintiffs,
v.
SC ELITE, LTD., et al. Defendants.

FINDINGS AND RECOMMENDATION THAT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT BE GRANTED (ECF No. 18)

MICHAEL J. SENG, Magistrate Judge.

On March 5, 2013, Plaintiffs Bird Gard, LLC, an Oregon limited liability company, ("Bird Gard"), and Bird-X, Inc., an Illinois corporation, ("Bird-X") (jointly "Plaintiffs") filed the instant Motion for Default Judgment against Defendant S.C. Elite, Ltd., a Chinese corporation ("SC" or "Defendant"). The motion was referred to this Court pursuant to 28 U.S.C. ยง 636(b)(1)(B) and Local Rule 302. No opposition to the Motion was filed. The matter has been deemed submitted for decision pursuant to Federal Rule of Civil Procedure 78 and Local Rule 230(g).

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2012, Plaintiffs filed a Complaint (ECF No. 1) for trade dress, trademark and copyright infringement against Defendants S.C. and Ningbo Elite Electronic Technology Co., Ltd., a Chinese corporation, ("Ningbo"). The Complaint alleges false designation of origin, trademark infringement under the Lanham Act, trade dress and trademark infringement under California common law, violation of California Business and Professions Code section 17200, et seq., and copyright infringement.

According to the Complaint:

Bird Gard has been in the business of designing, manufacturing and marketing a complete line of electronic devices to repel birds from commercial, farming, and residential areas for more than twenty years. Through successful research, development, and marketing, it has become a world leader in the use of electronic sound devices for humane relocation of pest birds. Defendant SC, rather than developing its own devices, simply copied Bird Gard's in all respects - appearance, circuit boards, sounds emitted, brochures - and sold them under trademarks confusingly similar to those of Bird-X, a seller of Bird Gard products. In doing so, S.C. has unlawfully copied Bird Gard's copyrighted products and used them to unlawfully and unfairly confuse customers and compete with Bird Gard.

According to Plaintiffs' counsel's proof of service (ECF No. 12), Plaintiffs' Summons and Complaint was served on S.C. on November 22, 2012, in accordance with Federal Rule of Civil Procedure 4(f) and subparagraph a) of Article 5 of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.[1] No appearance has been made by or on behalf of SC.

On February 26, 2013, pursuant to Plaintiff's request (ECF No. 13), the Clerk of the Court entered default as to Defendant SC. (ECF No 14.) Apparently unable to accomplish service on Ningbo, Plaintiffs have dismissed the Complaint, without prejudice, as to that Defendant and proceed here only as against SC. (ECF Nos. 15 & 16.)

On, March 5, 2013 Plaintiffs filed the instant Motion for Default Judgment seeking an order enjoining S.C. and anyone acting on its behalf from copying, performing, or distributing Bird Gard's sound recording compilations; using their trademarks or confusingly similar trademarks; and, using the Bird Gard trade dress or confusingly similar trade dress. (ECF No. 18 at 6-7.)

Plaintiffs do not seek damages or attorney fees in the action.

As noted, Defendants have not appeared or otherwise participated in the matter. The Motion for Default Judgment was not served on Defendant. See Fed.R.Civ.P. 55(b)(2) (requiring written notice of an application for default judgment only if the party against whom a default judgment is sought has appeared); see also Local Rule 135(d).

II. LEGAL STANDARD

Plaintiff moves for entry of default judgment by the Court. Federal Rule of Civil Procedure 55(b) governs default judgment and, in relevant part, provides:

By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals - preserving any federal statutory right to a jury trial - when, to enter or effectuate judgment, it ...

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