United States District Court, W.D. Texas, Austin Division
SPARKS, UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court considered the file in the
above-styled cause, and specifically Plaintiff Dell, Inc.
(Dell)'s Motion to Sever and for Entry of Final Default
Judgment [#159] and Motion for Attorney's Fees and Costs
[#161]. Having reviewed Dell's motions, the
relevant law, and the file as a whole, the Court now enters
the following opinion and orders.
Moshin Shaikh, Vikas Tiwari, Mindtree Infotech, Mohammad
Aasif, and Asif Khan (the "Defaulted
Defendants") perpetuated a fraud whereby they pretended
to work for Dell and then used their fictitious affiliation
with Dell to sell software and computer support services
under the Dell name. They carried out this fraud by falsely
representing they worked for or were affiliated with Dell; by
registering websites using Dell's name; by planting text
files on customers' computers falsely identifying
themselves as Dell service technicians; and by sending
invoices bearing Dell's logo. Fourth Am. Compl. [#95] at
2016, Dell filed this lawsuit seeking an injunction as well
as damages, attorney's fees, and costs. Compl. [#1] at
15-18. Dell later sought and received permission to serve the
Defaulted Defendants-who are believed to be residents of
India-through alternative means including email. Order of
July 11, 2017 [#69]; Order of Nov. 1, 2018 [#140]. After Dell
effected service, the Defaulted Defendants failed to plead,
respond, or otherwise defend in this action, and the clerk
entered defaults against the Defaulted Defendants. Order of
Feb. 15, 2019 [#156].
now moves the Court to enter a default judgment against the
Defaulted Defendants and to enter an injunction prohibiting
the Defaulted Defendants from engaging in various activities
likely to dilute Dell's trademarks or result in confusion
as to the affiliation of the Defaulted Defendants and related
third parties with Dell. Mot. Default [#159] at 5. Dell also
moves for attorney's fees and costs. Id.; Mot.
Atty's Fees [#161]. These pending motions are ripe for
default has been entered against a defendant for failure to
plead or otherwise respond to the complaint, a plaintiff may
apply for a judgment based on that default. New York Ins.
Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996); see
also Fed. R. Civ. P. 55. Under 50 U.S.C. §
3931(b)(1), the plaintiff must file an affidavit stating
whether or not the defendant is in military service, and
under Rule 55(b) a default should not be entered against an
unrepresented minor or incompetent person. See Center
Capital Corp. v. M.B. Bender Co., No. A-09-CV-469-SS,
2009 WL 3834335, at *1 (W.D. Tex. Nov. 13, 2009). A defendant
who defaults for failing to plead or otherwise defend admits
all the well-pleaded allegations of the complaint. Wooten
v. McDonald Transit Assocs., 788 F.3d 490, 496 (5th Cir.
2015). Rule 54(c) limits the type and amount of relief
granted on a default judgment to what is demanded in the
pleadings. FED. R. Civ. P. 54(c).
seeks a default judgment on all claims brought against the
Defaulted Defendants. The Court examines each claim in turn
to determine whether Dell has put forward sufficient
well-pleaded factual allegations to support entry of judgment
against the Defaulted Defendants. It then considers whether
Dell has fulfilled the other miscellaneous predicates to
entering a default judgment.
Trademark Infringement-15 U.S.C. § 1114
15 U.S.C. § 1114, any person that uses a registered mark
without the permission of the registrant and in connection
with the sale or offering of any goods or services is liable
for trademark infringement if the use is likely to cause
confusion or mistake or is intended to deceive.
Dell has pleaded that its name and trademarks are
distinctive; that they designate a single course of origin;
that they have acquired a secondary meaning; and that these
marks are registered. Mot. Default [#159] at 4. Dell has also
pleaded that the Defaulted Defendants used Dell's marks
to pass off their goods and services as those of Dell,
without Dell's permission and in a manner that resulted
in actual confusion among Dell's customers. Id.
Dell has also pleaded the actions of each Defaulted Defendant
in the ...