NEW JERSEY DIVORCE CENTER INC. v. NJ DIVORCE CENTER
Filing
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FINAL JUDGMENT AND PERMANENT INJUNCTION re: 8 Motion for Default Judgment. Signed by Chief Judge Jerome B. Simandle on 11/15/2013. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NEW JERSEY DIVORCE CENTER,
INC.,
Plaintiff,
Civil Action
No. 13-2490 (JBS/KMW)
v.
FINAL JUDGMENT AND
PERMANENT INJUNCTION
NJ DIVORCE CENTER,
Defendant.
THIS MATTER having been opened to the court by way of
motion [Docket Item 8] by Plaintiff New Jersey Divorce Center,
Inc., seeking the entry of a final judgment by default against
NJ Divorce Center pursuant to Fed. R. Civ. P. 55(b)(2) and it
appearing that the complaint in this matter was filed on April
18, 2013 seeking damages, injunctive relief and attorney’s fees
as a result of trademark infringement and unfair competition
under the Lanham Act and at state and common law for Defendant’s
use of the term DIVORCE CENTER in connection with its business;
and Defendant having not filed an appropriate answer to the
complaint despite this Court’s Order that it do so; and it
appearing that default was duly noted by the Clerk of the Court
against Defendant on June 19, 2013; and that the Court, by Order
filed October 23, 2013 [Docket Item 9] struck the purported
answer of this Defendant because it is a business entity
unrepresented by an attorney, and the Court affirmed the Clerk’s
entry of default and requested a supplemental submission from
Plaintiff’s counsel in support of default judgment; Plaintiff
has now made that submission consisting of a Memorandum of Law
and a Declaration of Richard Kramer [Docket Item 12]; and
Plaintiff having provided Defendant with notice of the within
motion for default judgment; and the court having reviewed the
papers and for good cause having been shown, the Court FINDS:
1.
This Court has jurisdiction over Counts I and II of
the Complaint pursuant to 28 U.S.C. § 1338(a) and 15 U.S.C. §
1121, in that the causes of action stated therein arise under
the Trademark laws of the United States, particularly 15 U.S.C.
§§ 1114 and 1125(a). The Court has jurisdiction over the
remaining Counts of the Complaint pursuant to 28 U.S.C. §
1338(b) and alternatively 28 U.S.C. § 1367.
2.
Plaintiff registered and owns the valid mark DIVORCE
CENTER which has become incontestable pursuant to 15 U.S.C. §
1065. Plaintiff has likewise used its website name
www.thedivorcecenter.com in connection with rendering its
services in New Jersey.
3.
Plaintiff has proved that Defendant’s use of the name
NJ DIVORCE CENTER in connection with Defendant’s rendering of
divorce assistance services in New Jersey, infringes Plaintiff’s
federally registered trademark in violation of 15 U.S.C. § 1114.
Plaintiff has also proved that Defendant’s infringement is
willful and with intent to infringe upon Plaintiff’s registered
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service mark, and that such infringing activity continues and
will not cease unless enjoined. Default judgment against
Defendant will be entered on Count I.
4.
Plaintiff has also proved that Defendant’s adoption
and use of Plaintiff’s service mark DIVORCE CENTER and its use
of a strikingly similar website www.njdivorcecenter.com that
mimics Plaintiff’s website without permission of Plaintiff is
likely to cause confusion or mistake and mislead the relevant
public into believing Defendant’s services originate with
Plaintiff; Defendant competes with Plaintiff in New Jersey;
Defendant’s actions constitute a false description or violation
of 15 U.S.C. § 1125(a). Defendant’s unfair competition was done
willfully and with the intent to infringe upon Plaintiff’s
rights in violation of 15 U.S.C. § 1125(a). Default judgment
against Defendant will be entered on Count II.
5.
Plaintiff has also proved that Defendant is liable for
statutory infringement and unfair competition in violation of
state law, N.J.S.A. § 56:4-1 to 2. Default judgment against
Defendant will be entered on Count III.
6.
Plaintiff has also proved that Defendant is liable for
common law unfair competition under New Jersey law. Default
judgment will be entered against Defendant on Count IV.
7.
Plaintiff has demonstrated it is entitled to
injunctive relief permanently enjoining Defendant from utilizing
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the name DIVORCE CENTER as all or part of its company name or
its domain name, website or email address.
8.
The Court will grant Plaintiff’s request for
attorney’s fees. The Lanham Act expressly permits an award of
attorney’s fees to a prevailing party in “exceptional cases.” 15
U.S.C. § 1117(a). “While the statute does not explicitly define
the term ‘exceptional,’ generally a trademark case is
exceptional for purposes of an award of attorneys’ fees when the
infringement is malicious, fraudulent, deliberate or willful.”
Louis Vuitton Malletier & Oakley, Inc. v. Veit, 211 F. Supp. 2d
567, 585 (E.D. Pa. 2002).
“[A] court may infer willfulness from
the fact that a defendant refuses to respond to the plaintiff’s
complaint or subsequent motion for default judgment.” Piquante
Brands Int'l, Ltd. v. Chloe Foods Corp., Civ. 08-4248, 2009 WL
1687484, at *6 (D.N.J. June 16, 2009). In this case, Defendant
has not responded to the Complaint or the motion for default,
despite ample opportunity to do so. Moreover, the Court can also
find willfulness from the fact that “Defendant adopted the
confusingly similar name NJ DIVORCE CENTER and created a website
www.njdivorcecenter.com that clearly mimics Plaintiff’s
website.” (Compl. ¶ 11.) See Chanel, Inc. v. Gordashevsky, 558
F. Supp. 2d 532, 538 (D.N.J. 2008) (granting attorney fees based
on finding of willfulness because “[t]he fact that Defendant
sold goods using marks that were identical to such strong and
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established marks conclusively demonstrates his desire and
purpose to trade upon [Plaintiff]’s goodwill”). The Court will
therefore grant Plaintiff’s request for attorney’s fees.
IT IS on this
15th
day of
November
2013, ORDERED,
ADJUDGED AND DECREED that:
1.
Defendant, NJ Divorce Center, and its employees,
agents, members, affiliates, subsidiaries, officers, directors,
representatives, and all those who act in concert or
participation with it who receive notice hereof are hereby
permanently ENJOINED and RESTRAINED from utilizing the name
DIVORCE CENTER as all or part of its company name including the
use of the term DIVORCE CENTER as all or part of a domain name,
website or email address;
2.
NJ Divorce Center shall reimburse Plaintiff for its
attorney’s fees and costs in connection with this matter in an
amount to be determined by the Court. Within 14 days of the
entry of this Order, Plaintiff shall submit an appropriate
declaration and fee request.
3.
Plaintiff’s counsel shall cause a copy of this Final
Judgment and Permanent Injunction to be mailed to Defendant at
all last known addresses.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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