Frenchy's Corporate, Inc. v. Frenchy's Pizzeria & Tavern, Inc. et al

Filing 24

ORDER: Frenchy's Corporate, Inc.'s Motion for Final Default Judgment and Permanent Injunction (Doc. # 23 ) is GRANTED. The Clerk is directed to enter JUDGMENT in favor of Plaintiff Frenchy's Corporate, Inc. and against Defendants Frenchy's Pizzeria & Tavern, Inc., Mark C. Spier, and Andrea French. The Clerk is directed to CLOSE THE CASE. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 3/30/2018. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FRENCHY’S CORPORATE, INC.,
Plaintiff,
v.

Case No. 8:18-cv-425-T-33JSS

FRENCHY’S PIZZERIA & TAVERN, INC.,
MARK C. SPIER and ANDREA FRENCH,
Defendants.
________________________________/
ORDER GRANTING FRENCHY’S CORPORATE, INC.’S MOTION
FOR FINAL DEFAULT JUDGMENT AND PERMANENT INJUNCTION
This matter comes before the Court pursuant to Frenchy’s
Corporate,

Inc.’s

Motion

for

Final

Default

Judgment

and

Permanent Injunction (Doc. # 23), which was filed on March 28,
2018.

As explained below, the Court grants the Motion.
Legal Standard
Federal Rule of Civil Procedure 55(a) sets forth the

following regarding an entry of default:
(a) Entering a Default. When a party
against whom a judgment for affirmative relief
is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit
or otherwise, the clerk must enter the party’s
default.
A district court may enter a default judgment against a
properly served defendant who fails to defend or otherwise
appear pursuant to Federal Rule of Civil Procedure 55(b)(2).
DirecTV, Inc. v. Griffin, 290 F. Supp. 2d 1340, 1343 (M.D.

Fla. 2003).
The mere entry of a default by the Clerk does not, in
itself, warrant the Court entering a default judgment.

See

Tyco Fire & Sec. LLC v. Alcocer, 218 F. App’x 860, 863 (11th
Cir. 2007) (citing Nishimatsu Constr. Co. v. Hous. Nat’l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975)).

Rather, a court must

ensure that there is a sufficient basis in the pleadings for
the judgment to be entered. Id.

A default judgment has the

effect of establishing as fact the plaintiff’s well-pled
allegations of fact and bars the defendant from contesting
those facts on appeal.

Id.

Discussion
Frenchy’s Corporate initiated this action on February
21, 2018, by filing a three-count complaint against Frenchy’s
Pizzeria & Tavern, Inc., Mark Spier, and Andrea French. (Doc.
# 1). Count 1 seeks redress under the Lanham Act for trademark
infringement. (Id.). Count 2 is also asserted under the Lanham
act and seeks relief for unfair competition. (Id.). Finally,
Count 3 seeks redress for violations of Florida’s Deceptive
and Unfair Trade Practices Act. (Id.).

Frenchy’s Corporate

served Frenchy’s Pizzeria and Spier on February 28, 2018.
(Doc. ## 14, 16).

Frenchy’s Corporate served French on March

1, 2018. (Doc. # 15).

The Affidavits of the process server
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establish that the individual Defendants, Spier and French,
are not members of the United States Armed Forces. (Doc. ##
15, 16).

Thereafter, Frenchy’s Corporate filed a Motion for

Preliminary Injunction seeking an Order enjoining Defendants
from using the “Frenchy’sTM” mark, among other relief. (Doc.
# 17).
Defendants did not respond to the Complaint, and on March
26, 2018, Frenchy’s Corporate sought entry of Clerk’s Default
against Defendants. (Doc. # 20).

On March 27, 2018, the

Clerk entered a Default against Defendants. (Doc. # 22).
Based upon the Clerk’s entry of Default and the well-pled
factual allegations contained in the Complaint and Motion for
Preliminary Injunction, Frenchy’s Corporate has established
that Frenchy’s Corporate, Inc. has a valid and enforceable
trademark in the name “Frenchy’s” in the restaurant goods and
services sector.

Frenchy’s Corporate, Inc. has established

its claim for infringement of an unregistered trademark and
unfair competition under 15 U.S.C. § 1125(a) of the Lanham Act
(Counts 1 and 2).

In addition, Frenchy’s Corporate, Inc. Has

shown that Defendants violated Florida’s Deceptive and Unfair
Trade Practices Act (Count 3). Plainly, in Florida, “engaging
in trademark infringement is an unfair and deceptive trade
practice that violates [FDUTPA].” Slep-Tone Entm’t Corp. v.
3

Snappers Bar & Grill, Inc., 8:12-cv-157-JSM-EAJ, 2013 WL
2039624, at *2 (M.D. Fla. May 15, 2013). In addition to
establishing that it is entitled to all of the relief sought
in the Complaint, Frenchy’s Corporate, Inc. has demonstrated
that

it

is

entitled

to

a

permanent

injunction

against

Defendants which enjoins them from wrongfully infringing on
the “Frenchy’sTM” mark.

The Court further determines that a

hearing on this matter is not needed.
Having reviewed the Motion and the file as a whole, it is
accordingly,
ORDERED, ADJUDGED, and DECREED:
1.

Frenchy’s Corporate, Inc.’s Motion for Final Default
Judgment and Permanent Injunction (Doc. # 23) is GRANTED.

2.

Frenchy’s Corporate, Inc. has a valid and enforceable
trademark in the name “Frenchy’s” in the restaurant goods
and services sector.

3.

Defendants, their officers, agents, servants, employees,
attorneys,

and

participation

those

with

persons

them

are

in

active

immediately

concert

or

PERMANENTLY

ENJOINED and RESTRAINED from
a.

Using Frenchy’s Corporate, Inc.’s mark “Frenchy’sTM”
as a trade name, company name, service mark, trade

4

mark, Internet domain name, or other URLS or in any
manner

in

promotion,

connection
offering

with

for

the

sale,

advertizing,
sale,

and/or

rendering of restaurant services and any other
related goods or services; and
b.

Engaging in any acts of trademark, service mark,
trade name infringement and/or using or engaging in
any false description or representations or any
false designations of origin and/or committing any
acts of federal or state dilution and/or otherwise
engaging in any facts of deceptive or unfair trade
practices or unfair competition with respect to
Plaintiff’s mark, “Frenchy’sTM”, in connection with
the advertizing, promotion, offering for sale, sale
and/or rendering of sales and services.

4.

The Clerk is directed to enter JUDGMENT in favor of
Plaintiff

Frenchy’s

Corporate,

Inc.

and

against

Defendants Frenchy’s Pizzeria & Tavern, Inc., Mark C.
Spier, and Andrea French on Plaintiff’s claims.

The

Clerk shall include in the Judgment that Defendants,
their officers, agents, servants, employees, attorneys,
and those persons in active concert and participation
with them are permanently enjoined from the actions set
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forth in subsections 3(a)-(b) above.
5.

Frenchy’s Corporate, Inc. is entitled to an award of
costs.

6.

The Clerk is directed to CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 30th

day of March, 2018.

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