United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
for hearing on July 13, 2016 is plaintiff's motion for
default judgment. Because oral argument is not of material
assistance, the hearing will be vacated and this matter will
be submitted on the briefs. E.D. Cal. L.R. 230(g). The
undersigned has fully considered the briefs and record in
this case and, for the reasons stated below, will recommend
that plaintiff's motion for default judgment be granted.
action, plaintiff alleges claims for trademark infringement,
false designation of origin, and unfair competition. The
record reflects that defendant Habib was properly served on
December 23, 2015 and defendant AAA Autobody Shop was
properly served on March 2, 2016. ECF Nos. 4, 8. Default
against defendants was entered on February 18, 2016 and March
28, 2016. ECF Nos. 7, 10. In the motion for default judgment,
plaintiff seeks injunctive relief and an award of costs.
of default effects an admission of all well-pleaded
allegations of the complaint by the defaulted party.
Geddes v. United Financial Group, 559 F.2d 557 (9th
Cir. 1977). The court finds the well pleaded allegations of
the complaint state a claim for which relief can be granted.
Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir.
1976). The application for default judgment and the exhibits
and affidavits attached thereto also support the finding that
plaintiff is entitled to injunctive relief as set forth in
the prayer for default judgment, which does not differ in
kind from the relief requested in the complaint. Henry v.
Sneiders, 490 F.2d 315, 317 (9th Cir.), cert.
denied, 419 U.S. 832 (1974). Plaintiff is also entitled
to costs as provided under Federal Rule of Civil Procedure
54(d)(1) (costs "should be allowed to the prevailing
party") and 15 U.S.C. § 1117(a) ("When a
violation of any right of the registrant of a mark registered
in the Patent and Trademark Office . . . shall have been
established in any civil action arising under this chapter,
the plaintiff shall be entitled, . . . subject to the
principles of equity, to recover . . . the costs of the
action."). There are no policy considerations which
preclude the entry of default judgment of the type requested.
See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th
Cir. 1986) (factors that may be considered by the court are
possibility of prejudice to the plaintiff, merits of
plaintiff's substantive claim, sufficiency of the
complaint, sum of money at stake in the action; possibility
of a dispute concerning material facts; whether the default
was due to excusable neglect, and strong policy underlying
the Federal Rules of Civil Procedure favoring decisions on
foregoing reasons, IT IS HEREBY ORDERED that the hearing date
of July 13, 2016 is vacated; and
HEREBY RECOMMENDED that:
Plaintiff's motion for default judgment (ECF No. 11) be
Final judgment be entered in favor of plaintiff AAA against
defendants AAA Autobody Shop and Noorullah Habib, jointly and
severally, in the amount of $1, 064.56.
Pursuant to the Court's authority under 15 U.S.C. §
1116(a), defendants, their agents, servants, employees,
attorneys, and any and all persons in active concert or
participation with any of them, be permanently enjoined and
Using without the authorization of AAA any of AAA's
trademarks, logos, and trade names, including, but not
limited to, the designations "AAA, " "AAA
Approved, " "AAA Approved Auto Repair, " or
any other name, logo, or mark that includes the designation
"AAA" or that is confusingly or deceptively similar
to any of AAA's trademarks, logos, and trade names,
either alone or in conjunction with other words or symbols,
as part of any trademark, service mark, logo, trade name,
corporate name, assumed name, domain name, website, or email
address, on or in relation to any goods or services sold or
provided by the defendants, or in any other manner; and
Using the AAA Marks in any form or manner that would tend to
identify or associate defendants or their business or
services with AAA, including, without limitation, in the
marketing, promotion, advertising, identification, sale or
distribution of goods or services, or in any other manner.
Pursuant to 15 U.S.C. § 1118, defendants be ordered,
within five (5) days of entry of this Final Judgment and
Permanent Injunction, to destroy all literature, signs,
labels, prints, packages, wrappers, containers, advertising
materials, stationary, Internet content, websites, email
addresses, computer files, software, and any other items in
their possession or control that contain the infringing
designations "AAA, " or any term, symbol, or logo
confusingly similar to "AAA, " either alone or in
combination with other words or symbols and to destroy all
computer back-up files and tapes, plates, molds, matrices,
masters, and other means in their possession or control of
making any of those infringing items.
Pursuant to 15 U.S.C. § 1116(a), within thirty (30) days
of entry of the Final Judgment and Permanent Injunction,
defendants be ordered to file with the Court and serve on AAA
a report in writing, under oath, setting forth in detail the
manner in which defendants have complied with the injunction.
Court retain jurisdiction over this action for the purpose of
supervising defendants' compliance with this Permanent
Injunction, which may be enforced in this Court or in a court