The opinion of the court was delivered by: Thomas J. McAvoy, Sr. U.S. District Judge
Before the Court is Plaintiffs' Motion for a Default Judgment pursuant to Fed. R. Civ. P. 55(b)(2), seeking a permanent injunction under 15 U.S.C. § 1116 and attorney's fees under 15 U.S.C. § 1117, against Defendant Oasis World Peace and Health Foundation ("Oasis World"). Dkt. 46 at 4. Oasis World failed to file an answer or any other responsive pleading in this case. The Clerk of the Court entered a default judgment against Oasis World on May 18, 2010. For the following reasons, Plaintiffs' motion is granted in part and denied in part.
The Court assumes familiarity with the facts and the background set forth in its August 2010 Decision and Order. Dkt. 41 at 2. In that Decision and Order, the Court held that Plaintiffs' pleadings were insufficient to establish liability as to Defendant Oasis World and denied the motion for default judgment with leave to renew. Plaintiffs now renew their motion against Oasis World. Oasis World has failed to appear or otherwise respond.
A defendant must file an answer or otherwise defend an action within 21 days of service. Fed. R. Civ. P. 12(a)(1)(A)(i). If a defendant fails to respond, a default judgment may be entered at the discretion of the trial court. Fed. R. Civ. P. 55(b)(2). When a court considers a default judgment motion it must accept as true all of the factual allegations of the complaint. Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). "However, the court cannot construe the damages alleged in the complaint as true." Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F .3d 151, 155 (2d Cir. 1999). Rather, the court must "conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Au Bon Pain, 653 F.2d at 65. This inquiry "involves two tasks: (1) determining the proper rule for calculating damages on such a claim, and (2) assessing plaintiff's evidence supporting the damages to be determined under this rule." Alcantara, 183 F.3d at 155.
a. First Cause of Action - Lanham Act Claim
Plaintiff Ziguang Shang Shi asserts that he has not authorized Defendant Oasis World to utilize "Guang Huan Mi Zong" and "GHMZ" to identify the religious goods and services it provided, in violation of 15 U.S.C. § 1125(a). Dkt. 46, Exhibit 7, at 14. Specifically, it is claimed that Defendant infringed on Shi's trademarks by using the "GHMZ" Logo and the names "Guang Huan Mi Zong," or "GHMZ," without authorization, in three volumes of a religious text advocating teachings of "Guang Huan Mi Zong," in a circulated journal about "Guang Huan Mi Zong," and in promotional pamphlets offering religious services to the public. Id. at 14.
Based on the default, Defendant admits that Plaintiff had protected marks and the use of the marks will likely lead to confusion. See New Kayak Pool Corp. v. K&P Pools, Inc., 246 F.3d 183, 185 (2d Cir. 2001). Specifically, Defendant admits to the following facts: (1) Plaintiff's marks are "Guang Huan Mi Zong", "GHMZ", GHMZ logo, "Master Ziguang Shang Shi" and "Holy Ziguang Shang Shi;" (2) Plaintiff used these marks for religious teachings and practice for over 20 years; (3) the marks used by the Defendant are identical or highly similar in appearance, sound, meaning, and commercial impression to Plaintiff's marks; (4) Defendant's goods and services are identical, or so closely related, to what is offered by Plaintiff that the consumers will likely assume a common source; (5) Plaintiff and Defendant operate in similar markets and are advertising religious classes to the same classes of customers; (6) Defendant was aware of Plaintiff's marks; (7) Defendant's actions will jeopardize Plaintiff's reputation and goodwill because the offered goods or services are not related to Plaintiff's religious business; and, (8) given that the marks are identical or so closely related, sophisticated and un-sophisticated customers will likely be confused as to what goods or services are advertised and provided. These factual allegations establish the essential elements of Plaintiff's trademark claims. See New Kayak Pool Corp., 246 F.3d at 185. Therefore, Defendant's liability is established and Shi is entitled to judgment on his Lanham Act claim. The Court further finds that, based on the undisputed allegations in the Complaint, the remedy of injunctive relief is warranted because there is an absence of an adequate remedy at law. Dkt. 46, Exhibit 12, at 20.
Moreover, an award of attorney's fees is available under the Lanham Act in exceptional cases where the court finds willfulness. Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995). Here, the undisputed allegations of the Complaint establish that Defendant acted with willful deception in its commercial practice. Therefore, Shi is entitled to attorneys' fees.
"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 [because damages] must be established by the plaintiff in an evidentiary proceeding in which the defendant has the opportunity to contest the amount." Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Fed. R. Civ. P. 55(b) (2) provides that "the court may conduct such hearings or order such references as it deems necessary and proper" to determine the amount of damages. See Tamarin v.. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993). "It is not necessary for the court to hold a hearing, as long as it ensured that there was a basis for the damages specified in the default judgment." Fustok v. ContiCommodity Services, Inc., 873 F.2d 38, 40 (2d Cir. 1989). Plaintiff's submissions serve as a proper basis for attorneys' fees that are susceptible to mathematical computation.
Because these damages are susceptible of mathematical computation, the Court will enter judgment in the amount of $28,065.00 in attorney's fees unless, within fourteen days of the date of this Order, Defendant files affidavits and/or other evidence, admissible in form, contesting or otherwise addressing the proper calculation of the attorney's fees. In its submission, Defendant must indicate whether it is requesting an evidentiary hearing.
Accordingly, Plaintiff's motion under the Lanham Act claim is GRANTED and he is entitled to injunctive relief. Specifically, Defendant is prohibited from using the "GHMZ" Logo and the names "Guang Huan Mi Zong," or "GHMZ." If Defendant fails to submit evidence in opposition to Plaintiff's claimed damages within fourteen days of the date of this Order, the Clerk of the Court shall enter judgment against ...