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Boost Worldwide, Inc. v. Talk Til U Drop, Wireless, Inc.

United States District Court, N.D. New York

October 8, 2014

BOOST WORLDWIDE, INC., Plaintiff,
v.
TALK TIL U DROP, WIRELESS, INC., and SAM DEB, Defendants.

MARC D. YOUNGELSON, ESQ., COSNER YOUNGELSON, East Brunswick, New Jersey, Attorneys for Plaintiff.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

On January 28, 2014, Plaintiff Boost Worldwide, Inc. ("Boost") commenced this action alleging that Defendants Talk Til U Drop Wireless, Inc. and Sam Deb infringed on Plaintiff's trademarks and engaged in false advertising and unfair competition. See Dkt. No. 1. On March 20, 2014, Plaintiff obtained a Clerk's entry of default. See Dkt. No. 8. Plaintiff now moves for entry of a default judgment against Defendants pursuant to Rule 55(b) of the Federal Rules of Civil Procedure.

II. BACKGROUND

The Court has taken the facts set forth below from Plaintiff's complaint.[1] Plaintiff is a provider of prepaid wireless services. Dkt. No. 1 at ¶ 9. Plaintiff currently has trademark registrations on four marks and logos ("the Boost Marks") for use with its telecommunications equipment, telephone cards, and telecommunications and educational services. Id. at ¶¶ 11-14. Plaintiff has used the Boost Marks in connection with promoting, offering and selling its goods and services continuously since 2002. Id. at ¶¶ 15-17.

Plaintiff sells its products and services in large retail chains and select "small, authorized retail outlets disseminated strategically and geographically throughout the country." Id. at ¶ 20. Defendants are not authorized Boost dealers, and Plaintiff has not consented to Defendants' use of the Boost Marks in connection with the sale or advertising of wireless communications products or services. Id. at ¶ 21. Defendants improperly use the Boost Marks in signs, displays and other advertisements at their retail locations in Rochester and Syracuse, New York. Id. at ¶¶ 22-23.

On January 2, 2014, prior to commencing this action, Plaintiff contacted Defendants by letter, requesting that Defendants cease their unauthorized use of the Boost Marks. Id. at ¶ 25. Despite Plaintiff's request, Defendants continued to use the Boost Marks in connection with their retail stores. Id.

On January 28, 2014, Plaintiff commenced this action by filing a complaint alleging trademark infringement in violation of 15 U.S.C. § 1125(a) and 15 U.S.C. § 1114, false advertising in violation of 15 U.S.C. § 1125, common law unfair competition, and common law unjust enrichment. Id. at ¶¶ 26-54. The complaint and summons were properly served on Defendants on March 3, 2014. See Dkt. No. 6. Defendants have not answered or otherwise moved with respect to the complaint. Plaintiff obtained a Clerk's Entry of Default against Defendants on March 20, 2014. Dkt. No. 8. On April 9, 2014, Plaintiff filed the instant motion for entry of a default judgment against Defendants, seeking a permanent injunction enjoining Defendants from the unauthorized use of the Boost Marks and attorneys' fees and costs totaling $4, 283.95. Dkt. No. 9.

III. DISCUSSION

A. Legal Standards

Pursuant to Federal Rule of Civil Procedure 55(b), a default judgment shall be entered if a defendant has failed to plead or otherwise defend an action. See Fed.R.Civ.P. 55(b); see also Parise v. Riccelli Haulers, Inc. , 672 F.Supp. 72, 74 (N.D.N.Y. 1987). Under Fed.R.Civ.P. 55(b)(2) and Local Rule 55.2, before a motion for default judgment may be granted, a plaintiff must (1) properly serve defendant with a summons and complaint (to which no response has been made); (2) obtain an entry of default; (3) send the defaulting party notice of the plaintiff's application for entry of judgment; and (4) provide an affidavit setting forth the facts required by L.R. 55.2(a), including an affidavit of non-military service and evidence that defendant is neither an infant nor incompetent. See Fed.R.Civ.P. 55(b)(2); N.Y.N.D.L.R. 55.1 and 55.2.

"[A] party's default is deemed to constitute a concession of all well pleaded allegations of liability." Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp. , 973 F.2d 155, 158 (2d Cir. 1992). However, "[e]ven when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true." Credit Lyonnais Sec. (USA), Inc. v. Alcantara , 183 F.3d 151, 155 (2d Cir. 1999). The Court "must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Id. "While the court must ensure that there is a basis for the damages specified in a default judgment, it may, but need not, make the determination through a hearing.'" Bravado Int'l ...


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