United States District Court, S.D. Ohio, Eastern Division, Dayton
Cardinal Services, Inc. Plaintiff,
Cardinal Staffing Solutions, LLC, Defendant.
Magistrate Judge Jolson
OPINION & ORDER
D. MORRISON, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
Standard of Review
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.
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.)
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 ...