United States District Court, D. New Jersey
ORDER & JUDGMENT
WILLIAM J. MARTINI, U.S.D.J.
MATTER comes before the Court by Plaintiff Cosmetic
Warriors Limited's motion for a default judgment against
Defendant G'Lush Salon LLC under Federal Rule of Civil
Procedure 55(b)(2). Plaintiff commenced this action on
January 5, 2018. ECF No. 1. Four days later, Plaintiff served
the Complaint on Defendant. ECF No. 5. The time to answer or
otherwise respond to the Complaint has expired. See
Fed. R. Civ. P. 12(a).
date, Defendant has failed to answer or otherwise respond to
the Complaint. Under Federal Rule of Civil Procedure 55(a),
the Clerk entered Default against Defendant on March 14,
2018. ECF No. 7. Plaintiff then filed this motion for default
judgment on March 20, 2018, and served Defendant with notice
of the motion. ECF No. 8. No opposition has been filed.
factors control whether a default judgment should be granted:
(1) prejudice to the plaintiff if default is denied, (2)
whether the defendant appears to have a litigable defense,
and (3) whether defendant's delay is due to culpable
conduct.” Chamberlain v. Giampapa, 210 F.3d
154, 164 (3d Cir. 2000) (citation omitted). “Where a
court enters a default judgment, the factual allegations of
the complaint, except those relating to the amount of
damages, will be taken as true.” DIRECTV, Inc. v.
Pepe, 431 F.3d 162, 165 n.6 (3d Cir. 2005) (quoting
Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d
Court finds the facts set forth in the Complaint, the motion,
and the attached exhibits merit entry of a default judgment.
First, Plaintiff has been prejudiced by
Defendant's failure to answer because Plaintiff has
incurred additional costs, has been unable to move forward
with the case, and has been delayed in receiving relief.
See Malik v. Hannah, 661 F.Supp.2d 485, 490-91
(D.N.J. 2009). Second, there lacks a basis for Defendant to
claim a meritorious defense, as Plaintiff provided ample
evidence that Defendant directly infringed Plaintiff's
registered LUSH trademarks. See Chanel, Inc. v.
Matos, 133 F.Supp.3d 678, 686-87 (D.N.J. 2015).
Third, where, as here, Defendant has failed to
respond, there is a presumption of culpability. Id.
at 687 (citation omitted).
permanent injunction issues to a party after winning on the
merits and is ordinarily granted upon a finding of trademark
infringement.” Lermer Germany GmbH v. Lermer
Corp., 94 F.3d 1575, 1577 (Fed. Cir. 1996) (citation
omitted). The Lanham Act vests courts with the power to
provide permanent injunctive relief, 15 U.S.C. §
1116(a), and courts in the Third Circuit award such relief
for default judgments in trademark actions. See,
e.g., E.A. Sween Co., Inc. v. Deli Exp. of Tenafly,
LLC, 19 F.Supp.3d 560, 576-78 (D.N.J. 2014) (granting
permanent injunction that enjoined defendants from infringing
on plaintiffs' trademarks when defendant's only
hardship was to stop its unlawful conduct and it served the
public interest to have “a truthful and accurate
marketplace”); Chanel, Inc., 133 F.Supp.3d at
689-90 (granting permanent injunction on default judgment of
trademark infringement claims when defendant's use of
plaintiff's marks created consumer confusion and it
furthered the public interest to protect registered
seeks $17, 930.73 in attorneys' fees and costs of the
action. The Lanham Act grants a court discretion to award
costs and attorneys' fees to the prevailing party in
“exceptional cases” brought under the Act. 15
U.S.C. § 1117(a). The Third Circuit has defined
“exceptional cases” to ones when “(a) there
is an unusual discrepancy in the merits of the positions
taken by the parties or (b) the losing party has litigated
the case in an unreasonable manner.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 315 (3d Cir.
2014) (citation and internal quotation marks omitted).
record here shows Defendant failed to litigate this case and
has continued to exhibit bad faith and knowing infringement.
After receiving cease and desist letters, the summons in this
action, and the Clerk's entry of default, Defendant has
continued to violate Plaintiff's registered LUSH
trademark. Before Plaintiff filed suit, the parties discussed
a possible settlement, but Defendant has ceased
communications with Plaintiff. Indeed, this is an exceptional
case of knowing infringement to justify awarding costs and
attorneys' fees. But Plaintiff has yet to submit proof of
the submitted costs and attorneys' fees calculation.
Absent further explanation or documentation to arguably
support granting the requested fees and cost reimbursement,
the Court cannot issue a reliable award.
foregoing reasons and for good cause appearing;
IS on this 16th day of April, 2018, hereby,
ORDERED that Plaintiff's motion for
default judgment is GRANTED; and it is
that Defendant is hereby PERMANENTLY
ENJOINED from any future act that uses Cosmetic
Warriors' LUSH trademark, including but not limited to
the infringing G'LUSH designation and any confusingly
similar variations of the same. Defendant is
to immediately remove all exterior and interior signage, as
well as signage on all products and uniforms, bearing the
G'LUSH designation and immediately discontinue using the
G'LUSH designation on or in connection with all
advertising and promotional materials. Defendant is also
to immediately discontinue use of the G'LUSH Facebook
page and immediately discontinue use of the G'LUSH
designation on or in connection with any social networking
websites, including but not limited to: Twitter, Pinterest,
Snapchat, and Instagram; and it is further
that Defendant immediately transfer to Cosmetic Warriors the
domain name https://www.glus ...