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.

Neal Technologies, Inc. v. Superior Auto and Diesel Repair, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

August 28, 2018

NEAL TECHNOLOGIES, INC., Plaintiff,
v.
SUPERIOR AUTO AND DIESEL REPAIR, INC., Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO DEFAULT JUDGMENT WITH PERMANENT INJUNCTION

          Matthew P. Brookman United States Magistrate Judge Southern District of Indiana

         This matter comes before the Court on Plaintiff's Motion for Default Judgment with Permanent Injunction (Docket No. 14). For the reasons set forth below, the undersigned recommends that the Court GRANT Plaintiff's motion.

         I. Background

         Plaintiff Neal Technologies, Inc. d/b/a Bullet Proof Diesel filed its Complaint against Defendant Superior Auto and Diesel Repair, Inc. on December 5, 2017 alleging trademark infringement in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114 and unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) and Indiana common law (Docket No. 1).

         On December 22, 2017, Plaintiff served Defendant with a Summons and copy of the Complaint (Docket No. 8). Defendant failed to plead or otherwise defend against Plaintiff's suit, and on February 7, 2018, Plaintiff moved for a Clerk's Entry of Default against Defendant (Docket No. 12), which was entered on February 8, 2018 (Docket No. 13). Plaintiff now moves for Default Judgment with Permanent Injunction against Defendant (Docket No. 14). A hearing on Plaintiff's Motion for Default Judgment with Permanent Injunction held on August 22, 2018 (Docket No. 20). Defendant did not appear for the hearing. Gene Neal, the principal of Neal Technologies, Inc., appeared and was called to testify.

         II. Standard

         When a clerk enters default judgment against a defendant, “the well-pleaded allegations of a complaint relating to liability are taken as true.” Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323 (7th Cir. 1983). “Once default is established, and thus liability, the plaintiff still must establish his entitlement to the relief he seeks, ” and the Court must “conduct an inquiry” to determine with “reasonable certainty” whether a plaintiff is entitled to the damages and/or other relief the plaintiff seeks. In re Catt, 368 F.3d 789, 793 (7th Cir. 2004) (citation and quotation marks omitted).

         III. Findings

         When the Clerk in this case entered default against Defendant (Docket No. 13), Defendant admitted the well-pleaded allegations in Plaintiff's Complaint. The Complaint alleged that Plaintiff retains the common law BULLETPROOF, BULLET PROOF, BULLETPROOFDIESEL, and BULLET PROOF DIESEL trademarks and has been using them since 2009, as well as the following U.S. registered trademarks: BulletProof Diesel.com (U.S. Registration 4, 235, 578); BulletProof Diesel.com and Design mark (U.S. Registration 4, 262, 825); “BULLET PROOF” (U.S. Registration 5, 130, 772 and 5, 220, 129); “BULLET PROOF DIESEL” (U.S. Registration 5, 220, 128); “BULLETPROOFDIESEL” (U.S. Registration 5, 220, 127); U.S. Registered LOGOS, Registration Numbers 5, 181, 668; 5, 181, 669, and 5, 203, 935 (see Docket No. 1 at ECF p. 3; see also Docket No. 1-2 and Docket No. 1-3). The Complaint further alleged that Defendant directly infringed upon the above-referenced trademarks by advertising, marking, and sales of “Bulletproof” packages (see Docket No. 1 at ECF pp. 5-10). These allegations constitute trademark infringement in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114 and unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) and Indiana common law. The only remaining issue is whether Plaintiff can establish with “reasonable certainty” that it is entitled to the relief that it seeks.

         A. Damages

         Violation of the Lanham Act authorizes the recovery of Defendant's profits, any damages sustained by the Plaintiff, and court costs. 15 U.S.C. § 1117(a). Plaintiff in this case acknowledges that it is not entitled to recover damages it has sustained due to the absence of proof of actual confusion. Regarding the recovery of Defendant's profits, “[r]ecovery of this nature often proves unwieldy or impractical to determine, especially in the case of a default.” Rolls-Royce, supra, 688 F.Supp.2d at 156. Therefore, Plaintiff is electing to pursue a discretionary award in lieu of Defendant's profits in the amount of $150, 000.00. 15 U.S.C. §1117(a) provides that “the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case. Such sum in either of the above circumstances shall constitute compensation and not a penalty.” Defendant in this case continues to willfully infringe upon the Plaintiff's trademarks (seeDocket No. 15-1), and as such, the Magistrate Judge can say with at least “reasonable certainty, ” In re: Catt, 368 F.3d 789 at 793, that Plaintiff is entitled to a discretionary award of $150, 000.00.

         B. Injunctive Relief

         Plaintiff next seeks injunctive relief under 15 U.S.C. § 1117. In order to obtain a permanent injunction, a plaintiff must show:

(1) that is has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that ...

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.