United States District Court, E.D. Michigan, Southern Division
K. Majzoub Magistrate Judge.
ORDER VACATING ORDER TO SHOW CAUSE ; REINSTATING
PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT ;
GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT; CLOSING
J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE.
FenF, LLC, filed a Complaint  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”) and 3, 430, 215 (“the 215
registration”) 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
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  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.
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) . In its
Response , 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.
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).
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!”
sets forth the following counts in the complaint:
.Count I: Infringement of the ‘636
.Count II: Infringement of the ‘215
.Count III: Unfair Competition
.Count IV: False Advertising
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 ...