United States District Court, S.D. Texas, Houston Division
H. Miller Senior United States District Judge
before the court is a motion for default judgment against
defendant AKS1 Enterprise, Inc. (“AKS1”) and
Saima Karim Shaikh (collectively, “Defendants”).
Dkt. 10. AKS1 and Shaikh have not responded to the motion.
Having considered the motion and applicable law, the court is
of the opinion that the motion should be GRANTED.
a trademark infringement case. Roor International BV
(“Roor”) and Sream, Inc. (“Sream”)
(collectively, “Plaintiffs”) are suing Defendants
for trademark infringement and false designation of
Roor's trademarked “water pipes.” Dkt. 1.
Roor owns the trade name “ROOR” and the trademark
for various different distinctive marks relating to the same.
See Dkt. 1 ¶ 12 (listing three registered trademarks
Roor owns). Roor licenses Sream, Inc. to distribute
Roor's products in the United States. See Id.
¶ 13. Roor contends that it has continuously used and
never abandoned the marks at issue in this case. See
Id. ¶ 14.
owned and operated by Shaikh, is a tobacco and pipe shop
called King of Tobacco. See Id. ¶ 8. In this
shop, Defendants offered for sale a counterfeit Roor water
pipe which bore the Roor trademark. See Id. ¶
25. Plaintiffs sued Defendants for trademark infringement in
the present action. See e.g. Id. Plaintiffs served
Defendants. See Dkt. 6. After Defendants failed to appear,
Plaintiffs moved for a default judgment. See Dkt. 10.
Rule 55(b)(2), a party may apply for the court to enter a
default judgment, and the “court may conduct hearings
or make referrals-preserving any federal statutory right to a
jury trial-when, to enter or effectuate judgment, it needs
to: (A) conduct an accounting; (B) determine the amount of
damages; (C) establish the truth of any allegation by
evidence; or (D) investigate any other matter.”
default judgment is a “drastic remedy, not favored by
the Federal Rules[, ] and resorted to by courts only in
extreme situations.” Sun Bank of Ocala v. Pelican
Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th Cir.
1989). “The Federal Rules of Civil Procedure are
designed for the just, speedy, and inexpensive disposition of
cases on their merits, not for the termination of litigation
by procedural maneuver.” Id. A default
judgment, thus, “must be ‘supported by
well-pleaded allegations' and must have ‘a
sufficient basis in the pleadings.'” Wooten v.
McDonald Transit Assoc., Inc., 788 F.3d 490, 498 (5th Cir.
2015) (quoting Nishimatsu Constr. Co. v. Hou. Nat'l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975)). The well-pleaded
allegations in the complaint are assumed to be true.
Nishimatsu, 515 F.2d at 1206.
may not enter a default judgment against a minor or
incompetent person unless the person is represented by a
general guardian, conservator, or other like fiduciary who
has appeared. Fed.R.Civ.P. 55(b). Additionally, a court may
not enter a default judgment if the plaintiff does not file
an affidavit regarding the defendant's military status.
50 U.S.C. § 3931(b)(1). If the defendant is in the
military service, “the court may not enter a judgment
until after the court appoints an attorney to represent the
defendant.” Id. § 3931(b)(2). Local Rule
5.5 requires that motions for default judgment “be
served on the defendant-respondent by certified mail (return
receipt requested).” S.D. Tex. L.R. 5.5.
served Defendants with the Complaint on November 17, 2018 via
private process server. See Dkt. 6. Defendants never filed an
answer or responsive pleading. On May 13, 2019, Plaintiffs
served the motion for default judgment on Defendants via
certified mail, return receipt requested as required by the
Local Rules. See Dkt 11. Defendants failed to file an answer
or responsive pleading prior to the June 3, 2019 deadline.
Plaintiffs have shown that AKS1, a company, and Shaikh, an
individual, are not minors, are not incompetent persons, and
are not in the military. See Dkt. 10-2. “Because [the
Defendants] ha[ve] failed to plead or otherwise defend, the
court may: (1) enter default against [the Defendants]; (2)
accept all well-pleaded facts in the complaint as true; and
(3) if [Plaintiffs have] stated a valid claim, award
[Plaintiffs] the relief [they] seek.” Senegal v. TAS
Foods, LLC, No. 2:18-CV-1734, 2019 WL 2568630 (Miller, J.)
(quoting Nishimatsu, 515 F.2d at 1206).
“trademark” is “any word, name, symbol, or
device, or any combination thereof . . . used by a person, or
which a person has a bona fide intention to use in commerce .
. . to identify and distinguish his or her goods, including a
unique product, from those manufactured or sold by others and
to indicate the source of the goods, even if that source is
unknown.” 15 U.S.C. § 1127. The Lanham Act
“provide[s] remedies for unfair and misleading use of
trademarks.” Schlotzsky's, Ltd. v. Sterling
Purchasing & Nat'l Distribution Co., Inc., 520
F.3d 393, 399 (5th Cir. 2008).
allege violations of sections 1114 and 1125(a) of the Lanham
The claims under 15 U.S.C. § 1114 are for trademark
counterfeiting and infringement. Dkt. 12. Section 1114
prohibits using counterfeit “imitation[s] of a
registered mark in connection with the sale, offering for
sale, distribution, or advertising of any goods or services
on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive, ” and
prohibits counterfeiting “a registered mark and
applying it to labels, signs, prints, packages, wrappers,
receptacles or advertisements intended to be used in commerce
. . . .” 15 U.S.C. § 1114. Plaintiffs contend that
Defendants have used Roor's trademarks in commerce.
See Dkt. 1 at 12. Further, Plaintiffs allege that
Defendants' actions have caused confusion, mistake and
deception as to the source of the goods. Id.
claim under § 1125 for which Plaintiffs seek a default
judgment is for false designation of origin. Dkt. 10. Under
15 U.S.C. § 1125(a), a person may not use in commerce
“a word, term name, symbol, or device, or any
combination thereof, or any false designation of origin,
false or misleading description of fact, or false or
misleading representation of fact” that is likely to
cause confusion “as to the origin, sponsorship, or
approval of his or her goods, services, or commercial
activities by another person” or misrepresents the
origin of the goods, services, or commercial activities in
commercial advertising or promotion. 15 U.S.C. §
1125(a). Plaintiffs contend that Defendants' promotion,
sale, and/or offering for sale of the infringing products ...