Opinion
Case No. 09-CV-2413 (FB) (SMG).
October 6, 2009
For the Plaintiff: ANDREW L. DEUTSCH, ESQ., DLA Piper LLP, New York, NY.
MEMORANDUM AND ORDER
On June 8, 2009, plaintiff Artemis Marketing Corporation ("Plaintiff") commenced suit alleging trademark infringement, unfair competition, and dilution under the Lanham Act, 15 U.S.C. §§ 1114, 1125(a), 1125(c); trademark infringement and unfair competition under New York common law; and violation of New York General Business Law § 360-L. As defendant Rooms 2 Go Furniture, Inc. ("Defendant"), after being duly served, has failed to respond to the complaint or otherwise defend against the action, see Docket Entry #8 (Clerk's Entry of Default), the Plaintiff now moves for entry of a default judgment pursuant to Federal Rule of Civil Procedure 55(b).
A defendant's default is an admission of all well-pleaded allegations in the complaint, except those relating to damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) ("While a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages."). A district court must nevertheless determine whether the allegations state a claim upon which relief may be granted, see Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) ("[A district court] need not agree that the alleged facts constitute a valid cause of action."); if they do, damages "must be established by the plaintiff in an evidentiary proceeding in which the defendant has the opportunity to contest the amount." Greyhound Exhibitgroup, 973 F.2d at 158.
The complaint alleges that (1) Plaintiff has valid marks that are entitled to protection; (2) Plaintiff's marks are distinctive; (3) Defendant used the marks to advertise and sell its goods and services without Plaintiff's consent; (4) Defendant's use of the marks is likely to cause confusion in the marketplace for residential furnishings as to the source and authority for offering such services; and (6) Defendant's use of the marks dilutes the distinctive quality of the marks to identify and distinguish Plaintiff's goods and services.
These allegations — now deemed admitted — are sufficient to establish the essential elements of Plaintiff's claims of trademark infringement, unfair competition, and dilution under the Lanham Act. See Johnson Johnson Consumer Companies, Inc. v. Aini, 540 F. Supp. 2d 374, 388 (E.D.N.Y. 2008) (listing elements necessary to prevail on claims under 15 U.S.C. §§ 1114 1125(a)); Mashantucket Pequot Tribe v. Redican, 403 F. Supp. 2d 184, 192 (D. Conn. 2005) (listing elements necessary to prove dilution under 15 U.S.C. § 1125(c)). These same allegations also suffice to establish Plaintiff's claims for trademark infringement and unfair competition under New York common law and General Business Law § 360-L. See Lorillard Tobacco Co. v. Jamelis Grocery, Inc., 378 F. Supp. 2d 448, 456 (S.D.N.Y. 2005) ("It is well-established that the elements necessary to prevail on causes of action for trademark infringement and unfair competition under New York common law mirror the Lanham Act claims."); see also Krasnyi Oktyabr, Inc. v. Trilini Imports, 578 F. Supp. 2d 455, 470-71 (E.D.N.Y. 2008) ("To prove a [§ 360-L] dilution claim, a plaintiff must show that it owns a distinctive mark and a likelihood of dilution."). Thus, Plaintiff's motion for entry of a default judgment is granted.
Having established a violation of the Lanham Act and New York General Business Law § 360-L, Plaintiff is entitled to some or all of the remedies it seeks under the Lanham Act and New York law. The matter is referred to the assigned magistrate judge for a report and recommendation on the damages and injunctive relief to be awarded.