Patagonia, Inc. v. Hunt et al

Filing 22

ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: the Recommendation of United States Magistrate Judge 21 is approved and adopted as an order of this court. The Plaintiff's Motion for Entry of Default Judgment Against Defend ants Jeff Hunt and Marie Diladd d/b/a Climb4Hunger 18 is granted in part and denied in part. Default judgment shall enter on behalf of plaintiff, Patagonia, Inc., and against defendants, Jeff Hunt and Marie Diladd d/b/a Climb4Hunber, as to plaintif f's claims for federal and common law trademark infringement. Defendants, Jeff Hunt and Marie Diladd d/b/a Climb4Hunger, as well as their agents, servants, employees, attorneys, successors, assigns, affiliates, joint ventures, and all other pers ons who are in active concert or participation with them, and/or any person or persons acting for, with, by, through, or under them are permanently enjoined and restrained from: Further infringement of plaintiff's trademarks, including the PATAG ONIA trademark, and trade name rights; Use of any word, term, name, phrase, symbol, device, or combination thereof that causes or is likely to cause confusion, mistake, or deception as to the affiliation or association of defendants or their services or products with Patagonia or as to the origin of defendants' services, or any false designation of origin, false or misleading description or representation of fact, or any false or misleading advertising related to the PATAGONIA trademark, in cluding any use of the PATAGONIA trademark in connection with the Climb4Hunger fundraising business; Further infringement of plaintiff's rights in and to its PATAGONIA trademark, or otherwise damaging plaintiff's goodwill or business reputation; and Unfair competition with plaintiff. By Judge Robert E. Blackburn on 11/29/16. (kfinn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-02545-REB-STV
PATAGONIA, INC.,
Plaintiff,
v.
JEFF HUNT, d/b/a/ Climb4Hunger,
MARIE DILADD, d/b/a Climb4Hunger,
Defendants.

ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before the court is the Recommendation of United States
Magistrate Judge [#21],1 filed November 2, 2016. No objection having been filed, the
court reviews the recommendation for plain error only. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). Finding
no such error in the magistrate judge’s recommended disposition, the court approves
and adopts the recommendation.
As more thoroughly set forth in the recommendation, this case asserts claims,
inter alia, under the Lanham Act, which affords subject matter jurisdiction over this
action. 28 U.S.C. §§ 1331 & 1338, 15 U.S.C. § 1121. Plaintiff duly served defendants
in accordance with Fed. R. Civ. P. 4(h)(1). (See Affidavit of Service [#12-3 & 12-4],
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“[#21]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

filed February 4, 2015.) Personal jurisdiction and venue are proper in this district.
Defendants failed to answer or otherwise respond within the time permitted by law. The
clerk of the court entered default against defendants pursuant to Fed. R. Civ. P. 55(a)
on February 5, 2015 [#13]. Plaintiff therefore is entitled to default judgment against
defendants pursuant to Fed. R. Civ. P. 55(b).
In failing to respond or otherwise appear, defendants have admitted the factual
allegations of the complaint other than those relating to damages. See FED. R. CIV. P.
8(d); see also Burlington Northern Railroad Co. v. Huddleston, 94 F.3d 1413, 1415
(10th Cir. 1996); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2688 at 58-59 (3rd ed. 1998). The magistrate judge has
described how these allegations establish plaintiff’s claims against defendants for
trademark infringement and unfair competition under both federal statutory and
Colorado common law. (Recommendation at 4-5.) The court concurs with the
magistrate judge’s assessment that the admitted allegations establish plaintiff’s
entitlement to an injunction prohibiting defendants’ continued use of plaintiff’s protected
mark.2
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#21, filed
November 2, 2016, is approved and adopted as an order of this court;

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The court further concurs with – and no objection has been lodged to contest – the magistrate
judge’s conclusions that (a) the allegations of the complaint are insufficient to establish plaintiff’s claim
under the Colorado Consumer Protection Act; and (b) this case does not fall within the ambit of the
exceptional case provisions of the Lanham Act which would entitle plaintiff to an award of attorney fees.

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2. That the Plaintiff’s Motion for Entry of Default Judgment Against
Defendants Jeff Hunt and Marie Diladd d/b/a Climb4Hunger [#18], filed March 28,
2016, is granted in part and denied in part as follows:
a. That the motion is granted as to plaintiff’s claims for federal and
common law trademark infringement and unfair competition, entitling
plaintiff to the entry of a judgment of default and an injunction as to those
claims; and
b. That in all other respects, the motion is denied;
3. That default judgment shall enter on behalf of plaintiff, Patagonia, Inc., and
against defendants, Jeff Hunt and Marie Diladd d/b/a Climb4Hunber, as to plaintiff’s
claims for federal and common law trademark infringement ;
4. That defendants, Jeff Hunt and Marie Diladd d/b/a Climb4Hunger, as well as
their agents, servants, employees, attorneys, successors, assigns, affiliates, joint
ventures, and all other persons who are in active concert or participation with them,
and/or any person or persons acting for, with, by, through, or under them are
permanently enjoined and restrained from
a. Further infringement of plaintiff’s trademarks, including the
PATAGONIA trademark, and trade name rights;
b. Use of any word, term, name, phrase, symbol, device, or combination
thereof that causes or is likely to cause confusion, mistake, or deception
as to the affiliation or association of defendants or their services or
products with Patagonia or as to the origin of defendants’ services, or any

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false designation of origin, false or misleading description or
representation of fact, or any false or misleading advertising related to the
PATAGONIA trademark, including any use of the PATAGONIA trademark
in connection with the Climb4Hunger fundraising business;
c. Further infringement of plaintiff’s rights in and to its PATAGONIA
trademark, or otherwise damaging plaintiff’s goodwill or business
reputation; and
d. Unfair competition with plaintiff; and
5. That plaintiff is awarded its costs, to be taxed by the clerk of the court in the
time and manner required by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated November 29, 2016, at Denver, Colorado.
BY THE COURT:

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