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Astra Associates, Inc. v. Sijora Enterprises, LLC

United States District Court, E.D. Michigan, Southern Division

February 27, 2017

ASTRA ASSOCIATES, INC., dba Mid-West Instruments, Plaintiff,
v.
SIJORA ENTERPRISES, LLC, dba Acugauge, Defendant.

          ELIZABETH A. STAFFORD MAGISTRATE JUDGE.

          OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT [9]

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE.

         Plaintiff Astra Associates, Inc., doing business as Mid-West Instruments (“Mid-West”), sells “backflow prevention test kits, ” under the trademarks “845-2, ” “845-3, ” and “845-5” (the “845 marks”). According to Mid-West, Defendant Sijora Enterprises, LLC, doing business as “Acugauge, ” sells inferior products using those same marks, and through Acugauge's website, implies that some of these inferior products are Mid-West's products. Mid-West sued Acugauge for trademark infringement, unfair competition, and under state law. When Acugauge failed to appear or answer despite service of process, the Clerk entered default. Mid-West now seeks a default judgment, permanently enjoining Acugauge from misusing the 845 marks. For the reasons discussed, the Court will grant Mid-West's motion.

         I.

         A.

         Mid-West's Complaint includes the following allegations. Mid-West manufactures backflow prevention test kits, which are used to test backflow prevention assemblies that protect water supplies from contamination. (R. 1, PID 3 ¶ 6.) Mid-West claims that its backflow prevention test kits are “the benchmark of the industry.” (Id.)

         For over a decade, Mid-West has used the designation “845” to identify a line of its backflow prevention test kits when advertising, promoting, and selling them worldwide. (R. 1, PID 4 ¶ 7.) Three specific marks are at issue here: “845-2, ” “845-3, ” and “845-5.” (Id.) MidWest alleges that each of the 845 marks is “arbitrary and distinctive” and that the marks have become “well known in the backflow prevention/potable water industry, ” giving Mid-West “inestimable value” due to the associated “enormous goodwill.” (Id.)

         Since 2003, Mid-West has promoted its test kits bearing the 845 marks on the website www.backflowtestkits.com, advertising that the kits come from “[o]ver 30 [now 40] years of input from backflow technicians, ” are made and sold in the United States, and are “Capable of performing test procedures including those recommended by ABPA, ASSE, AWWA, CSA, FCCC & HR-USC, NEWWA and UF-TREEO.” (R. 1, PID 5 ¶ 9 (first alteration in original).)

         In June 2012, Mid-West learned that Acugauge was advertising and selling backflow prevention test kits using the same 845 marks-“845-2, ” “845-3, ” and “845-5”-at another website, www.backflow-test-kit.com. (R. 1, PID 5 ¶ 10.) Acugauge's website also “purported” to sell Mid-West test kits with the 845 marks, though the Complaint does not clarify whether Acugauge was actually selling Mid-West test kits or simply selling counterfeit kits under MidWest's brand. (Id.) The website also copied text and photographs from Mid-West's advertising and fact sheets. (Id.) None of this was authorized. (Id.) Finally, the website also made false statements about the Acugauge products, including that they are “Acceptable by both USC and AWWA.” (R. 1, PID 5-6 ¶ 10.)

         More than two years later, on November 25, 2014, Mid-West was issued the following United States Trademark Registrations for its 845 marks for backflow prevention test kits: Registration No. 4, 643, 459 (for 845-5); Registration No. 4, 643, 460 (for 845-2); and Registration No. 4, 643, 461 (for 845-3). (R. 1, PID 4-5 ¶ 8.)

         At some point (the Complaint does not say when), Mid-West sent Acugauge a cease and desist letter. (R. 1, PID 6 ¶ 11.) In response, Acugauge removed from its website the text copied from Mid-West's materials but continued to use the 845 marks, offering backflow prevention test kits for sale from a link on the website identified as “Mid-West® Backflow Test Kits.” (Id.) Again, the Complaint does not say whether Acugauge was actually selling Mid-West kits or counterfeit ones. Mid-West sent other demand letters in July 2013 and December 2014, but the unauthorized use of the 845 marks continued, and Acugauge has not responded. (Id.)

         Acugauge's website also now promotes products with the 845 marks through a link identified as “Mid-West/Acugauge Backflow Test Kits, ” representing that the products come from “[o]ver 30 years of input from backflow technicians” and that the products with the 845-5 designation are “Acceptable by both USC and AWWA in all 50 states” and are “Approved in all 50 states and Canada.” (R. 1, PID 7 ¶ 12.) The website also misleadingly identifies Acugauge as an “original manufacturer” of backflow prevention test kits even though “at most, Acugauge only assembles such kits from the parts manufactured by others.” (Id.) Finally, the website misrepresents features that Acugauge's products have compared to Mid-West's, including false assertions that its products have certain features that Mid-West's products do not have. (Id.)

         This has all caused actual confusion-including customer complaints to Mid-West about the quality of Acugauge products that were mistakenly believed to have come from Mid-West. (R. 1, PID 7 ¶ 13.)

         B.

         Mid-West filed this action against Acugauge on November 25, 2015. (R. 1.) The Complaint asserts five counts: (1) trademark infringement and counterfeiting under the Lanham Act; (2) false designation and false or misleading description and representation of fact under the Lanham Act; (3) injurious falsehood under Michigan common law; (4) dilution and tarnishment under Michigan common law; and (5) unfair competition under Michigan common law. MidWest served Acugauge's registered agent on December 24, 2015, but no appearance or response followed. (R. 4.) At Mid-West's request, the clerk entered and served default on February 2, 2016. (R. 7, R. 8.) Mid-West ...


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