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FenF, LLC v. Yogabody Naturals LLC

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

October 26, 2017

FenF, LLC, Plaintiffs,
v.
Yogabody Naturals, LLC, Defendant.

          Mona K. Majzoub Magistrate Judge.

          ORDER VACATING ORDER TO SHOW CAUSE [12]; REINSTATING PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT [9]; GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT; CLOSING THE CASE

          ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff FenF, LLC, filed a Complaint [1] on September 26, 2016 against Defendant Yogabody Naturals, LLC, alleging federal trademark infringement of the U.S. Trademark Registration Nos. 3, 253, 636 (“the 636 registration”)[1] and 3, 430, 215 (“the 215 registration”)[2] in violation of Section 32(a) of the Lanham Act, 15 U.S.C. § 1114, unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125, and false advertising, in violation of 15 U.S.C. § 1125. Since the commencement of this lawsuit, it does not appear that Defendant has retained counsel; no Notice of Appearance by an attorney has been filed, nor has Defendant attempted to participate in the proceedings in any way.[3]

         Plaintiff requested, and was granted, Clerk's Entry of Default on January 9, 2017 [7, 8]. See Fed. R. Civ. P. 55(a). Plaintiff moved for Default Judgment [9] on March 6, 2017, seeking 1) injunctive relief pursuant to 15 U.S.C. § 1116(a), (2) reasonable attorney's fees pursuant to 15 U.S.C. § 1117(a), and (3) costs pursuant to Fed.R.Civ.P. 54(d)(1).

         On June 26, 2017, the Court entered an Order Denying the Motion for Default Judgment Without Prejudice and Directing Plaintiff to Show Cause Why the Case Should Not Be Dismissed for Failure to State a Claim Pursuant to Rule 12(b)(6) [12]. In its Response [13], filed as directed on July 26, 2017, Plaintiff sufficiently explained why its complaint met the pleading requirements as set forth by Fed.R.Civ.P. 12(b)(6). Specifically, Plaintiff has provided an adequate factual basis to allege a likelihood of confusion between the two marks. To that end, and for the reasons discussed below, the Court will VACATE its Order to Show Cause. Plaintiff's Motion for Default Judgment is REINSTATED and GRANTED.

         Analysis

         Defendants have failed to appear or otherwise plead in this action. Because a Clerk's Entry of Default was requested and entered, Plaintiffs well-pleaded allegations are deemed admitted. Ford Motor Co. v. Cross, 441 F.Supp.2d 837, 846 (E.D. Mich. 2006).

         FenF and YogaBody both sell toe separators, devices designed to stretch and straighten the toes. FenF's products are named YogaToes®. FenF has used this trade name in connection with its products since at least December 10, 2002. It owns, by assignment, the marks for “YOGA TOES” and “YOGATOES.” Yogabody's product is named “Awesome Toes!”

         Plaintiff sets forth the following counts in the complaint:

.Count I: Infringement of the ‘636 Registration
.Count II: Infringement of the ‘215 Registration
.Count III: Unfair Competition
.Count IV: False Advertising

         Claims for trademark infringement under 15 U.S.C. § 1114 and claims for unfair competition and false advertising under 15 U.S.C. § 1125 are examined using the same factors, with the likelihood of confusion between the two marks being the essence of the claims. See Audi AG v. DAmato, 469 F.3d 534, 542 (6th Cir. 2006) (explaining that the same test is used to determine “whether there has been trademark infringement [and] unfair competition . . . the likelihood of confusion between the two marks.”); Ford Motor Co., 441 F.Supp.2d at 851 (in a case in which plaintiff alleged false advertising and trademark infringement, the test for both claims was “whether the defendant's use of the disputed mark is likely to cause confusion among consumers regarding the origin of the ...


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