The opinion of the court was delivered by: Wolfson, United States District Judge
Presently before the Court is a Motion for Entry of Default Judgment by Plaintiffs Piquante Brand International and Strohmeyer & Arpe Company (collectively "Plaintiffs"). In sum, Plaintiffs allege that Defendant Chloe Foods Corporation ("Defendant"), has, and continues, to infringe upon Piquante Brand International's registered trademark PEPPADEW, in violation of 43(a) of the Lanham Act and state unfair competition laws. Defendant has not entered an appearance before this Court, nor has it responded to the current Motion. For the reasons that follow, Plaintiffs' Motion for Entry of Default Judgment is granted and a hearing shall be scheduled on July 14, 2009 at 11:00 AM to determine damages.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Piquante Brands International is a South African company maintaining its principal place of business in South Africa. Pl.'s Compl. ¶4. As a part of its business, Piquante, applied for, and received a federally registered trademark for PEPPADEW on June 24, 2003. Id. ¶8. Piquante alleges that it has advertised, promoted and sold products under the PEPPADEW trademark as early as 1995. Id. ¶7. The registration, No. 2,729,883, identifies the goods to be advertise under the PEPPADEW trademark to include: preserved, dried and cooked fruits and vegetables; concentrate fruit pulps; jams; jellies; piccalilli; pickles; soups; spreads, namely, fruit-based spreads, cheese spreads, vegetable-based spreads, garlic-based spreads, meat-based spreads; vegetable, meat, and fruit pastes; fruit and vegetable pate; and dips (class 29); and sauces; relishes; ketchups; chutneys, bean paste, almond paste, and alimentary paste (class 30).
Id. ¶8. In addition, Piquante currently owns a United States Trademark Application, No. 78/760, 306, for PEPPADEW & DESIGN. Id. ¶9.
Strohmeyer & Arpe Company ("S&A"), a licensee of Piquante, is a New Jersey corporation having its principal place of business in Basking Ridge, New Jersey. Id. ¶5. Since 2001, S&A has been a licensee of Plaintiffs' PEPPADEW trademark, selling products throughout the United States. Id. ¶10. Plaintiffs allege that over this time, they have expended substantial resources, including funds, time, and effort, to promote the PEPPADEW brand. Id. ¶11. Consequently, Plaintiffs allege, the purchasing public has come to associate the PEPPADEW trademark with high quality products distributed and produced by Plaintiffs. Id.
Plaintiff alleges that Defendant, through its website, www.chloefoods.com, has sold, and continues to sell, jarred pepper products under the trademark PEPPERDEWS. . ¶ ¶ 13-14. Plaintiffs insist Defendant's use of the PEPPERDEWS began well after Piquante's use and registration of the mark and was done so with the intent to profit off of PEPPADEW's goodwill and brand association. Id. ¶16-18. In addition, Plaintiffs allege that the marks and the products sold under the marks are extremely similar, and as a result, likely to cause confusion amongst the purchasing public. Id. ¶ ¶16, 20.
Plaintiff initiated this action in the United States District Court for the District of New Jersey on August 22, 2008. On October 10, 2008, Plaintiffs filed a Request for Entry of Default with this Court, which was entered on October 14, 2008. Plaintiffs assert in their papers that the only contact that they have had with Defendant was Defendant's request that Plaintiffs set aside the Entry of Default without conditions; Plaintiffs refused to do so. As a result, Plaintiffs filed this Motion for Entry of Default Judgment on February 2, 2009. Defendant has filed no opposition thereto. For the reasons that follow, Plaintiffs' Motion for Entry of Default is granted.
Federal Rule of Civil Procedure 55 governs the entry of default judgment. To obtain a default judgment pursuant to Fed. R. Civ. P. 55(b)(2), a litigant must first obtain an entry of default from the clerk of the court pursuant to Fed. R. Civ. P. 55(a). Once this procedural hurdle has been met, it is within the discretion of this court whether to grant a motion for a default judgment. Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000); Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir.1984). Nevertheless, that discretion is not unfettered, and in considering whether to enter default judgment, the Court should consider: (1) whether the defendants has a "litigable defense; (2) whether the defendant's delay is a result of his misconduct; and (3) if plaintiff would be prejudiced by the denial of default judgment. Id. Those factors, however, are generally apposite in the context of a party seeking to vacate an entry of default. Here, Defendant has not sought relief from the entry of default; as a result, this Court is "'not in a position then to determine whether [defendants have] a meritorious defense or whether any delay is the result of culpable misconduct.'" Days Inn Worldwide Inc. v. Mayu & Roshan, LLC, No. 06-1581, 2007 WL 1674485, at *3 (D.N.J. June 8, 2007) (quoting Carpenters Health and Welfare Fund v. Naglak Design, 1995 WL 20848, at *2 (E.D. Pa. 1995)). In turn, Plaintiffs will be prejudiced if this Court does not enter default judgment because Defendant's failure to appear deprives Plaintiffs the opportunity to succeed on its claims and vindicate its trademark rights.
That is not to say that default is appropriate where the facts alleged do not warrant it. Our precedent indicates a preference to dispose of cases on the merits whenever practicable. Hritz, 732 F.2d at 1181 (citations omitted); Directv v. DeCroce, 332 F. Supp. 2d 714 (D.N.J. 2004). In considering a motion for default, the Court treats all pleadings and allegations of the plaintiff as true. See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.1990). With respect to damages, however, a court need not accept the plaintiff's allegations as true, and "may conduct such hearings or order such references as it deems necessary" to properly determine the amount of damages that should be awarded. Fed. R. Civ. P. 55(b)(1).
B. Lanham Act Claims for Trademark Infringement and Unfair Competitions
Plaintiffs contend that Defendant's use of the mark PEPPERDEWS infringes upon Piquante's registered mark PEPPADEW, in violation of the Lanham Act. In that regard, Plaintiffs allege that these violations include willful trademark infringement, in violation of 15 U.S.C. § 1114,*fn1 and unfair competition, in violation of 15 U.S.C. § 1125(a).*fn2
At the threshold, the Court notes that claims for federal trademark infringement, 15 U.S.C. § 1114, and federal unfair competition, 15 U.S.C. § 1125, are measured by identical standards. Thus, to prevail on either claim, a plaintiff must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant's use of the mark causes a likelihood of confusion. A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198, 210 (3d Cir. 2000) (citing Commerce National Insurance Services, Inc. v. Commerce Insurance Agency, Inc., 214 F.3d 432, 437 (3d Cir. 2000)).*fn3 In addition, to prevail on a trademark infringement claim, the plaintiff is required to show that the defendant's use of the offensive mark is unauthorized. Opticians Association of America v. Independent Opticians of America, 920 F.2d 187, 192 (3d Cir. 1990). Here, Plaintiffs have demonstrated that Piquante is the owner of the PEPPADEW mark, a valid and legally protectable mark. Moreover, Plaintiffs aver that Defendant has not ...