United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING APPLICATION FOR DEFAULT JUDGMENT
MICHAEL J. SENG, District Judge.
This is an action for unfair competition, false designation of origin, false advertising, trademark infringement, trade dress infringement, state unfair and deceptive business practices, and state false advertising. Plaintiff High Tech Pet Products, Inc. ("HTPP") moves the court pursuant to Federal Rule of Civil Procedure 55(b)(2) for entry of a default judgment against Defendants Shenzhen Jianfeng Electronic Pet Product Co., Ltd. ("SJEPP") and against Velly Wei, SJEPP's managing agent and sales manager. Plaintiff asks the Court for an award of fees, costs of suit, and injunctive relief against Defendants.
Plaintiff has not established that this Court has personal jurisdiction over Defendants. Accordingly, the Court recommends that the matter be transferred to the United States District Court for the Middle District of Florida.
A. Statement of Facts and Procedural History
Plaintiff HTTP is a California corporation with its principal place of business in Ventura, California. It manufactures and distributes electronic pet products throughout the United States. (Compl. ¶ 1.) Plaintiff owns a federally registered trademark for "Bark Terminator" used in the manufacture and distribution of dog training collars. (Compl. ¶ 22, Ex. 3.) Plaintiff also asserts that it has common law trademark rights to the terms "humain contain, " "proportional stimulus, " "pulsed proportional stimulus, " and "speed detect" with regard to electronic pet fencing systems. (Compl. ¶¶ 9-11.) In its complaint, Plaintiff alleges that Defendant SJEPP is a corporation organized and existing under the laws of the People's Republic of China with its principal place of business in China. (Compl. ¶ 2.) Plaintiff also alleges that Defendant Wei is an individual residing in the People's Republic of China. (Id.)
Plaintiff alleges that since approximately December 2011, Defendants, with at least constructive notice of Plaintiff's common law trademarks, have sold electronic pet fencing systems throughout the United States bearing the marks "proportional stimulus, " "pulsed proportional stimulus, " and "speed detect". (Compl. ¶ 14.) Plaintiff further alleges that since approximately December 2011, Defendants, with at least constructive notice of Plaintiff's federal trademark, have sold bark control systems in the United States bearing the mark "bark terminator". (Compl. ¶ 26.) Defendants use the mark "bark terminator" to identify 18 different bark control systems advertised on and purportedly sold though Defendants' website. (Compl. ¶ 27; Ex. 4.) Finally, Plaintiff asserts that Defendants utilize a trade dress design that infringes on the design of Plaintiff's packaging for its pet containment and remote training systems. (Compl. ¶ 32.) Plaintiff claims that as a result of the use of the marks described above, Defendants' infringing activities are likely to result in confusion of customers who will believe that Defendants' goods are goods originating from and associated with Plaintiff.
With regard to the specific activities engaged in by Defendants, Plaintiff alleges that Defendant Wei, on behalf of SJEPP, attended the Global Pet Expo in Orlando, Florida, in February 2013. He there operated a sales exhibit booth advertising SJEPP's products. At the trade show, Nicholas J. Bonge, President and CEO of HTTP, spoke to Defendant Wei and purchased a bark control collar labelled as a "bark terminator" from SJEPP. (Bonge Decl. ¶ 3.) Plaintiff also indicates that Defendants operate an interactive website used to sell the allegedly infringing products. On the website, Defendants claim that North America constitutes 60% of its sales market. ( Id., ¶ 4.) Bonge believes that HTTP has lost and will continue to lose business in North America and California due to Defendants' actions. (Id. ¶ 11.) Specifically, Bonge notes that the sales of HTTP's "humane contain" system sold through the Sam's Club retailer have dropped significantly since SJEPPs advertised at the Pet Expo. (Id.)
On January 16, 2014, Plaintiff's counsel noted in a supplemental declaration that it appears that Defendants are planning to have an advertising booth at the 2014 Global Pet Expo to be held again in Orlando, Florida in March of this year. (Supp. Holland Decl., ECF No. 26.)
Plaintiff filed the current action in this Court on February 14, 2013, asserting eight claims against Defendants including: 1) false designation of origin under 15 U.S.C. § 1125(a); 2) false advertising under 15 U.S.C. § 1125(a); 3) federal trademark infringement of Plaintiff's federally registered "bark terminator" trademark and Plaintiff's common law trademarks including "Proportional Stimulus, " "Pulsed Proportional Stimulus, " and "Speed Detect;" 4) trade dress infringement of Plaintiff's electric pet fencing product packaging; and 5) four counts of unfair and deceptive business practices under California law. (Compl., ECF No. 2.)
Plaintiff served the complaint on Defendants Shenzhen Jianfeng Electronic Pet Product Co., Ltd. and Velly Wei, and dismissed the remaining named defendant, Hongming Tang. Defendants did not file responsive pleadings or otherwise appear. Plaintiff requested an entry of default against Defendants on July 23, 2013. (ECF Nos. 10-11.) The Clerk of Court entered default on September 16, 2013. (ECF No. 16.)
B. Motion for Default Judgment
Plaintiff filed the instant motion for default judgment on October 23, 2013, and provided the Court supporting papers and declarations December 3, 2013. Plaintiff seeks an award of attorney fees, costs of the suit, and a permanent injunction enjoining Defendants from infringing on Plaintiff's trademarks and trade dress relating to electric pet fencing and bark control products and enjoining defendants from engaging in false or deceptive advertising regarding the origin of their products or relationship to Plaintiff.
The matter was taken under submission by the court and presently stands ready for adjudication.
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a case following a defendant's default. Shanghai Automation Instrument Co. v. Kuei , 194 F.Supp.2d 995, 999 (N.D. Cal. 2001). Whether to enter a judgment lies within the court's discretion. Pepsico, Inc. v. Cal. Sec. Cans , 238 F.Supp.2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs , 792 F.2d 915, 924-25 (9th Cir. 1986)) ("A defendant's default does not automatically entitle the plaintiff to a court-ordered judgment."); Shanghai Automation Instrument Co. , 194 F.Supp.2d at 999.
Before assessing the merits of a default judgment, a court must confirm that it has subject matter jurisdiction over the case and personal jurisdiction over the parties, as well as ensure the adequacy of service on the defendant. See In re Tuli , 172 F.3d 707, 712 (9th Cir. 1999). If the court finds these elements satisfied, it turns to the ...