Physicians Weight Loss Centers of America, Inc. v. Physicians Weight Loss Clinic

Filing 10

Order granting Plaintiff's Motion for default judgment (Related Doc # 8 ). Plaintiff is entitled to a permanent injunction. Within 30 days of this order, Defendant shall transfer the domain name registration for the domain as found in the order. Further, within 30 days Defendant to provide an accounting to Plaintiff of sales of its services. Plaintiff shall move the Court for a damages hearing within 60 days. Judge John R. Adams on 3/20/13.(K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Physicians Weight Loss Centers of America, Inc.,
Plaintiff,
v.
Physicians Weight Loss Clinic,
Defendant.

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CASE NO. 5:12CV2607

JUDGE JOHN R. ADAMS
ORDER

On February 21, 2013, Plaintiff moved for default judgment in this matter, demonstrating
that proper service had been made and that no responsive pleading had been filed by Defendant.
On March 4, 2013, a letter was received from Dr. Khaled Elbanna. The letter could be construed as
an answer to the complaint in that it “den[ies] all charges brought … by the plaintiff” and then lists
numerous reasons for the denial.
However, the Court notes that while 28 U.S.C. § 1654 allows an individual to proceed pro
se in a federal case, it does not permit an individual to represent a corporation. U.S. S.E.C. v.
Merklinger, 2010 WL 2232224 * 1 (E.D.Mich., May 27, 2010) (citing Doherty v. American
Motors Corp., 728 F.2d 334, 340 (6th Cir. 1984)). , 426 F.2d 1385, 1386 (6th Cir.1970) (a
corporation must appear by counsel or not at all). The rule applies to owners or officers of
corporations, prohibiting them from appearing on behalf of the corporation. Merklinger, at *2;
Harris v. Akron Dept. of Public Health, 10 Fed. App’x 316, 319 (6th Cir. 2001). As Dr. Elbanna
cannot file an answer upon behalf of the business entity, the Court cannot construe the letter as an
answer.

Moreover, the Court would note that service was completed in this matter on November 5,
2012. The letter to the Court was not received until March 4, 2013, more than 3 months beyond
the time for filing an answer. There has been no motion filed for leave to file an answer, nor has
there been any showing of excusable neglect to allow for an untimely filing. Accordingly, at this
time, the motion for default judgment is GRANTED.
Plaintiff is entitled to a permanent injunction against Defendant on Plaintiff's claims for
trademark infringement under 15 U.S.C.§ 1114(1), unfair competition under 15 U.S.C. §1125(a),
and cyberpiracy under 15 U.S.C. §1125(d). Plaintiff likely has been and will continue to be
irreparably injured in its patent rights, its reputation and its sales, and has no adequate remedy at
law for these injuries which cannot be readily calculated. The balance of hardships favor
Plaintiff.; The public interest will not be harmed by grant of a permanent injunction. Accordingly,
the Court hereby GRANTS Plaintiff's motion for default and ORDERS as follows:
That Physicians Weight Loss Clinic, its servants, agents, and employees, and all other
persons in privity and/or in active concert or participation with them and/or having knowledge of
such injunction, and its successors and assigns, are hereby enjoined and restrained from any
further infringement of U.S. Registration No. 1,341,585 through the use of the marks
“PHYSICIANS WEIGHT LOSS” and “PHYSICIANS WEIGHT LOSS CLINIC” in connection
with providing information and services related to weight reduction and control, as shown in
Exhibit

B

to

the

Complaint,

and

through

the

use

of

the

domain

name

www.physiciansweightlossc1inic.com. or any other mark or marks or domain name likely to cause
confusion, or to cause mistake, or to deceive, purchasers as to the source, origin and sponsorship of
Defendant’s services, and to mislead the public into believing that Defendant’s services are
approved, sponsored or authorized by Plaintiff, or that the integrity or quality of Defendant or its

services is vouched for by Plaintiff.
That within thirty (30) days of this Order, Defendant transfer the domain name registration
for the domain name “physiciansweightlossc1inic.com” to Plaintiff.
That within thirty (30) days of this Order, Defendant provide to Plaintiff an accounting for
Defendant’s sales of its services, from their introduction to date, such accounting to include unit
and dollar volumes of sales and related profitability, and that Plaintiff move this Court for a
hearing on damages within sixty (60) days of receipt of such accounting.
IT IS SO ORDERED.

March 20, 2013
Dated

/s/ John R. Adams_____________________
JUDGE JOHN R. ADAMS
United States District Judge