United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff DT Fashion LLC's
motions for default judgment [ECF Nos. 16, 32, 34] against
Defendants Santana Jade Cline and The Dark Monkey LLC. For
the following reasons, the Court GRANTS
filed this case on November 21, 2016, against Defendants
Cline, Dark Monkey, Timothy Dials, and Helen Dials.
(See Verified Compl. at 1 [ECF No. 1].) Plaintiff
asserts seven claims: (1) declaratory judgment as to
Plaintiffs trademark; (2) declaratory judgment as to
Defendants' copyright; (3) fraud; (4) tortious
interference with business relationships; (5) violation of 17
U.S.C. § 512(f); (6) violation of 15 U.S.C. § 1125;
and (7) civil conspiracy. (See Id. at 5-11.)
Plaintiff has subsequently dismissed its claims against Helen
Dials and requested a stay of the proceedings against Timothy
Dials. (See Notice of Voluntary Dismissal at 1 [ECF
No. 26]; Notice of Bankruptcy at 1-2 [ECF No. 33].) As to
Cline and Dark Monkey, Plaintiff moved for, and obtained,
entries of default against them when they failed to answer or
otherwise respond to Plaintiffs Verified Complaint.
(See Entries of Default [ECF Nos. 17, 31].) Since
the entries of default, Cline and Dark Monkey have still not
answered or otherwise responded. As such, Plaintiff now
requests that the Court grant default judgment against them.
(See Mots, for Default J. [ECF Nos. 16, 32, 34].)
of the default entries, the Court takes Plaintiffs
allegations regarding Cline and Dark Monkey's liability
as true. See United States v. Parker-Billingsley,
No. 3:14-cv-307, 2015 WL 4539843, at *1 (S.D. Ohio Feb. 10,
2015). The Court relates those allegations, along with
statements from Plaintiffs unrebutted supporting affidavits,
designs, creates, promotes, markets, and sells apparel
focused on humor and satire inspired by topical subjects and
pop culture. (Verified Compl. ¶ 10 [ECF No. 1].) It
sells its merchandise primarily through a network of websites
and specialty e-commerce marketplaces, such as Etsy, Amazon,
and eBay. (See Id. ¶ 15; D. Fisher Aff. ¶
9 [ECF No. 16-1]-)
has had a registered trademark for the phrase "Ya Filthy
Animal" (the "Mark") since October 29, 2013.
(Verified Compl. ¶ 11.) Plaintiff uses the Mark
extensively in interstate commerce. (Id. ¶ 14.)
More specifically, some of Plaintiff s best-selling products
are t-shirts, sweatshirts, and sweaters containing the phrase
"Merry Christmas Ya Filthy Animal." (Id.
¶ 13.) Plaintiff also licenses the Mark to other
individuals and entities for use on their own merchandise.
(Id. ¶ 14.)
November 17, 2014, Defendant Cline obtained a copyright
registration for 2-D visual material entitled "Merry
Christmas Ya Filthy Animal." (Verified Compl. ¶
19.) The copyrighted design, however, is virtually identical
to a design independently created in 2012 by Elliott Fisher,
one of Plaintiff s owners, that Plaintiff had been using on
its own holiday themed merchandise for about two years before
Cline filed for copyright protection. (See E. Fisher
Aff. ¶¶ 2-17 [ECF No. 32].) Based on Fisher's
side-by-side examination of the designs, Plaintiff avers that
Cline's copyrighted design is not original and was,
instead, created using Live Trace, a feature within Adobe
Illustrator that can copy an image from the internet and
trace the outline to create a virtually identical copy.
(See Id. ¶¶ 9, 16-17.)
October 30, 2015, Cline and Dark Monkey applied for a
trademark registration for the phrase "Merry Christmas
Ya Filthy Animal." (Verified Compl. ¶ 16.) The
United States Patent and Trademark Office has twice denied
Defendants' trademark registration though in part because
of the likelihood of confusion with Plaintiffs Mark.
(Id. ¶ 17.)
Cline and Dark Monkey's inability to obtain a trademark
registration for "Merry Christmas Ya Filthy Animal,
" and despite their copyrighted design being virtually
identical to Plaintiffs preexisting design, Cline and Dark
Monkey filed trademark and copyright infringement claims
against Plaintiff in October and November 2016 with Etsy,
Amazon, and eBay. (See D. Fisher Aff. ¶¶
3-9; Verified Compl. ¶¶ 21, 28.) In response to
Cline and Dark Monkey's claims, eBay deactivated some of
Plaintiff s merchandise listings. (See D. Fisher
Aff. ¶ 9.) Amazon deactivated at least thirty-two of
Plaintiff s merchandise listings. (Verified Compl. ¶
35.) And Etsy deactivated twelve of Plaintiff s merchandise
listings and later terminated Plaintiffs account.
(Id. ¶¶ 21-22.) Plaintiff contends that it
has lost approximately $65, 000 in profits because of these
deactivations. (See D. Fisher Aff ¶¶ 6,
8-9; cf. Verified Compl. ¶¶ 23, 36.)
Rule of Civil Procedure 55 "contemplates a two-step
process in obtaining a default judgment against a defendant
who has failed to plead or otherwise defend."
Columbus Life Ins. Co. v. Walker-Macklin, No.
1:15-cv-535, 2016 WL 4007092, at *2 (S.D. Ohio July 25,
2016). A plaintiff must first request an entry of default
from the Clerk of Courts. Fed.R.Civ.P. 55(a). Upon the
Clerk's entry of default, '"the complaint's
factual allegations regarding liability are taken as true,
while allegations regarding the amount of damages must be
proven.'" Parker-Billingsley, 2015 WL
4539843, at *1 (quoting Broad. Music, Inc. v. Pub Dayton,
LLC, No. 3:11-cv-58, 2011 WL 2118228, at *2 (S.D. Ohio
May 27, 2011)).
plaintiffs claim is not for "a sum certain or a sum that
can be made certain by computation, " the plaintiff must
then apply to the Court for a default judgment. Fed.R.Civ.P.
55(b). "Thus, 'while liability may be shown by
well-pleaded allegations, [t]he district court must . ..
conduct an inquiry in order to ascertain the amount of
damages with reasonable certainty.'"
Parker-Billingsley, 2015 WL 4539843, at *1 (quoting
Broad. Music, 2011 WL 2118228, at *2) (internal
quotation marks omitted). A court may determine damages
without holding an evidentiary hearing if the damages are
'"capable of ascertainment from definite figures
contained in the documentary ...