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Cardinal Services, Inc. v. Cardinal Staffing Solutions LLC

United States District Court, S.D. Ohio, Eastern Division, Dayton

December 4, 2019

Cardinal Services, Inc. Plaintiff,
v.
Cardinal Staffing Solutions, LLC, Defendant.

          Magistrate Judge Jolson

          OPINION & ORDER

          SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE

         The Clerk entered default against Defendant Cardinal Staffing Solutions, LLC on October 11, 2019. (ECF No. 15.) Plaintiff Cardinal Services, Inc.'s resultant Motion for Default Judgment (ECF No. 16) is now before the Court. For the reasons that follow, the motion is GRANTED in part and DENIED in part.

         I. Background

         This is a trademark infringement and unfair competition case. (ECF No. 1 ¶ 3.) Plaintiff is a staffing service based in Maumee, Ohio. Id. ¶ 6. Plaintiff has offices in Ohio, Michigan, Illinois and Florida. Id. ¶ 7. Defendant is a staffing service located in Columbus, Ohio. Id. ¶ 2.

         Plaintiff utilizes Cardinal, Cardinal Staffing, Cardinal Staffing Services and Cardinal Services as common law service marks and has done so since September 1994. Id. ¶ 6. Plaintiff also uses federally registered service marks depicting cardinal bird designs. Id. ¶ ¶ 6, 13. Plaintiff began using those marks in Ohio in 2008. Id. ¶ 7. Plaintiff uses the marks to promote Plaintiff's services on a variety of mediums. Id. ¶ 10. As a result of their continuous use, the marks carry significant consumer goodwill. Id. ¶ ¶ 12, 20.

         Defendant markets and offers services substantially similar to Plaintiff's while directly competing with Plaintiff and unlawfully using Plaintiff's service marks. Id. ¶ ¶ 16-24. Defendant's use of the marks is confusing to the public. Id. ¶ 23.

         Prior to filing the action, Plaintiff's counsel sent Defendant two cease-and-desist letters. Id. ¶ 21. Defendant continued to use Plaintiff's marks despite Plaintiff's requests and in violation of Plaintiff's marks. Id.

         Plaintiff's three count complaint asserts claims for trademark infringement under 15 U.S.C. § 1114, false designation of origin under 15 U.S.C. § 1125(a) and deceptive trade practices under Ohio Revised Code Chapter 4165. (ECF No. 1.) After Defendant failed to respond to the Summons, Plaintiff filed an Application for Entry of Default (ECF No. 14). The Clerk entered Defendant's default (ECF No. 15) and the instant motion (ECF No. 16) is ripe for review.

         II. Standard of Review

         Federal Rule of Civil Procedure 55 states, “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” A party against whom default has been entered is deemed to have admitted all of the well-pleaded allegations in the complaint, except those related to damages. Boost Worldwide, Inc. v. Cell Station Wireless, Inc., No. 2:13-cv-490, 2014 U.S. Dist. LEXIS 1467, at *3-4 (S.D. Ohio Jan. 7, 2014) (citing Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995). Allegations concerning damages are not deemed true upon entry of default. “The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Vesligaj v. Peterson, 331 Fed.Appx. 351, 355 (6th Cir. 2009) (quoting Credit Lyonnais Sec., Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). After default has been entered, the party seeking relief from the defaulting party may apply for a default judgment. Fed.R.Civ.P. 55(b). “When an application is made to the court under Rule 55(b)(2) for the entry of a judgment by default, the district judge is required to exercise sound judicial discretion in determining whether the judgment should be entered.” 10A Wright & Miller Fed. Prac. & Proc. Civ. § 2685 (3d ed. 2013).

         III. DISCUSSION

         A. Claims

         In its Motion for Default Judgment, Plaintiff seeks an order: (1) finding that Defendant has infringed upon Plaintiff's common law and federally registered trademarks; (2) enjoining Defendant from continuing to infringe upon Plaintiff's marks; (3) requiring Defendant to produce or destroy any item bearing the infringing marks; (4) directing the registrar of the domain www.cardinalstaffingsolutions.com to transfer the domain to Plaintiff; and (5) finding that Plaintiff is entitled to costs and fees under Fed.R.Civ.P. 4(d)(2) in the sum certain amount of $1, 952.20. (ECF No. 1 at pp. 12-15.)

         As noted, Plaintiff's first two claims allege that the Defendant violated the Lanham Act. A party proves trademark infringement in violation of the Lanham Act by showing that: (1) it owns a trademark, (2) the infringer used the mark in commerce without authorization, and (3) the use of the alleged infringing trademark “is likely to cause confusion among consumers regarding the origin of the goods offered by the parties.” Coach, Inc. v. Goodfellow, 717 F.3d 498, 502 (6th Cir. 2013) (citing Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 515 (6th Cir. 2007)). Taking the Plaintiff's well-plead allegations as true, the Plaintiff owns its trademarks, Defendant used Plaintiff's marks in commerce without authorization, and Defendant's use of Plaintiff's marks is likely to cause confusion among consumers regarding the origin of the goods offered by the parties. (ECF No. 1 at ¶ ¶ 6, 13, 16-24.) Consequently, Plaintiff's well-pled ...


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