Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dell Inc. v. Mishra

United States District Court, W.D. Texas, Austin Division

June 7, 2019

DELL, INC., Plaintiff,
v.
RAJ MISHRA; TECH FIXING CENTER, LLC; SAMEER SHAIKH; MANISH DAS; ABDUL KANCHWALA; VISION BPO PVT., LTD.; MS VOIP CONNECTS; TUSHAR BOSE; PRO9 INFOSERVICES PVT. LTD.; GLOBAL VALUE ADD INC.; SUDHIR PAI; GURU DORSALA; WEBCONNECT LLC; DREAMLAND BPO; RIYAZ SHAIKH; MOSHIN SHAIKH; ONLINETECHSUPPORTS.NET LLC; ANURAG GUPTA; SURINDER KUMAR; GSVT INFOTECH PVT. LTD.; GAURAV SHARMA; VIKAS TIVVARI; MIND TREE INFOTECH LLC; MINDTREE INFOTECH; PAVITER SINGH; SIMRANJEET SINGH; RAJINDER SINGH; JASMINDER SINGH; HS DIGITAL SOLUTIONS LLC; NK DIGITAL SOLUTION; MOHAMMAD AASIF; ASIF KHAN; and IFN.COM INC., Defendants.

          ORDER

          SAM SPARKS SENIOR UNITED STATES DISTRICT JUDGE

         BE IT 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].[1] Having reviewed Dell's motions, the relevant law, and the file as a whole, the Court now enters the following opinion and orders.

         Background[2]

         Defendants Moshin Shaikh, Vikas Tiwari, Mindtree Infotech, Mohammad Aasif, and Asif Khan (the "Defaulted Defendants")[3] 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 2-4.

         In May 2016, Dell filed this lawsuit seeking an injunction as well as damages, attorney's fees, and costs. Compl. [#l] 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].

         Dell 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 review.

         Analysis

         I. Legal Standard

         After 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 *l (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).

         II. Application

         Dell 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.

         A. Trademark Infringement-15 U.S.C. § 1114

          Under 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.

         Here, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.