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FenF, LLC v. Yogabody Naturals LLC

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

May 30, 2018

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

          Mona K. Majzoub U.S. Magistrate Judge

          ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR CONTEMPT [19]

          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, Defendant has neither retained counsel nor attempted to participate in the proceedings in any way.

         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 October 26, 2017, the Court entered an Order Reinstating and Granting the Motion for Default Judgment and Closing the Case [14]. Approximately one month later, the Court entered a Permanent Injunction Order [16] against Defendant. That Order states:

Pursuant to Fed.R.Civ.P. 65, Defendant, its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with Defendant who receive actual notice of this Permanent Injunction, by personal service or otherwise, are permanently enjoined and restrained from:
(1) using the term Yoga Toes as all or part of a name or caption in connection with the sale or advertising of toe stretchers;
(2) imitating, copying, or making any unauthorized use of the YOGA TOES® or YOGATOES® Trademarks;
(3) importing, manufacturing, producing, distributing, circulating, selling, offering for sale, advertising, promoting or displaying any service or product using any simulation, reproduction, counterfeit, copy, or colorable imitation of either of the YOGA TOES® or YOGATOES® Trademarks;
(4) using any simulation, reproduction, counterfeit, copy or colorable imitation of the YOGA TOES® or YOGATOES® Trademarks in connection with the promotion, advertisement, display, sale, offer for sale, manufacture, production, circulation or distribution of any product or service; and
(5) using any false designation of origin or false description (including, without limitation, any letters, symbols, or designs constituting the YOGA TOES® or YOGATOES® Trademarks) or performing any act, which can, or is likely to, lead members of the trade or public to believe that any service or product manufactured, distributed or sold by Defendant are in any manner associated or connected with FenF, LLC, the YOGATOES® brand, or the of the YOGA TOES® or YOGATOES® Trademarks, or is sold, manufactured, licensed, sponsored approved or authorized by FenF, LLC.

         On November 29, 2017, Plaintiff's counsel, Richard W. Hoffmann, mailed copies of the Court's Default Judgment and Permanent Injunction Orders to Defendant's registered agent. He also emailed copies of those documents to Defendant's CEO, Lucas Rockwood. See Dkt. 20-2. In response, Defendant informed Mr. Hoffmann via letter that it was “unable to accept [the Court's] judgment” and that it planned to “proceed to vacate.” See Dkt. 20-3. Several days later, Mr. Hoffmann informed Defendant that it was in violation of the Permanent Injunction Order by way of a number of statements on its Amazon listing, such as the exchange listed below:

         Question [from a customer]: I would like to know if I could order Yoga toe spreaders size large, ...


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