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North American Van Lines, Inc. v. North America Prime Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

October 17, 2018

NORTH AMERICAN VAN LINES, INC., Plaintiff,
v.
NORTH AMERICA PRIME INC. and EAN MANNING, Defendants.

          FINDINGS, REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B) & C

          PAUL R. CHERRY, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on Plaintiff's Motion for Entry of Default Judgment [DE 29], filed by Plaintiff North American Van Lines, Inc. (“NAVL”) on June 1, 2018.

         On June 20, 2018, District Court Chief Judge Theresa L. Springmann entered an Order [DE 31] referring this matter to the undersigned Magistrate Judge for a report and recommendation on the instant motion pursuant to 28 U.S.C. § 636(b)(1)(B). This Order was clarified in a July 24, 2018 Order issued by Judge Springmann. This Report constitutes the undersigned Magistrate Judge's combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the following reasons, the Court recommends that Judge Springmann award the remedies requested by NAVL with a couple of alterations.

         PROCEDURAL BACKGROUND

         On July 14, 2018, NAVL filed a Complaint against Defendants North America Prime Inc. (“NA Prime”) and Ean Manning. NAVL brings claims of trademark infringement in violation of 15 U.S.C. § 1114, cybersquatting in violation of 15 U.S.C. § 1125(d), and unfair competition in violation of 15 U.S.C. § 1125(a) and common law.

         In her June 20, 2018 Order, Judge Springmann found that default by NA Prime and Manning had been established and that NA Prime and Manning are liable to NAVL as alleged in the Complaint. Judge Springmann referred this matter to the undersigned for a report and recommendation on damages. Judge Springmann clarified in a July 24, 2018 Order that the report and recommendation should address all of NAVL's requested remedies.

         The undersigned ordered a supplemental brief in support of default judgment, which NAVL filed on August 21, 2018. This brief was itself supplemented, at the Court's order, on September 4, 2018.

         FACTUAL BASIS

         After a default is entered in a case, the Court accepts as true all well-pled allegations in the complaint regarding liability. VLM Food Trading Int'l, Inc. v. Illinois Trading Co., 811 F.3d 274, 255 (7th Cir. 2016). Thus, the following statements, taken from the Complaint, are considered true for the purpose of the instant motion.

         NAVL markets and provides transportation services under the trademark NORTH AMERICAN and the trade name NORTH AMERICAN VAN LINES (collectively, the “NAVL Marks”). NAVL is the exclusive owner of all property rights in the NAVL Marks, which have been in continuous use since 1971.

         NAVL has extensively advertised and promoted the NAVL Marks in association with its business, and NAVL has spent millions of dollars to advertise, promote and sell its services using the NAVL Marks. NAVL has permanently displayed the NAVL Marks on trucks, trailers, shipping materials, sales contracts, business signs located on the premises of authorized NAVL agents, and its websites www.northamericanvanlines.com and www.northamerican.com. NAVL also uses the NAVL Marks in yellow page listings, advertisements, and brochures.

         As a result of NAVL's continuous use of the NAVL Marks in connection with its advertising, promotion, distribution, and sale of transportation services, the general consuming public has come to recognize the NAVL Marks as originating from and used by NAVL and to associate and identify the services offered and sold under the NAVL Marks exclusively with NAVL. NAVL derives goodwill from this recognition, association, and identification by the consuming public.

         Manning, currently the president of NA Prime, was formerly an officer of a company named North America Van Lines, Inc., which operated a website under the domain name northamericavanlines.com. The other officer of North America Van Lines, Inc. was Eli Ashkenazi.

         On November 18, 2015, NAVL sent a cease and desist letter to North America Van Lines, Inc. advising it of NAVL's trademark rights and demanded that North America Van Lines, Inc. cease all use of the NAVL Marks and cease use and operation of the www.northamericavanlines.com domain name and website.

         On December 1, 2015, recognizing NAVL's trademark rights, North America Van Lines, Inc.'s attorney assured NAVL that all use of the NAVL Marks would cease and that it would cease use and operation of the northamericavanlines.com domain name and website.

         North America Van Lines, Inc. voluntarily dissolved in 2016 and the northamericavanlines.com domain name was abandoned. However, on May 17, 2016, NAVL again was required to enforce its rights against Ashkenazi under a new company he started named North American Moving Company, Inc., which ...


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