United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
Applause Production Group, LLC ("Applause") brings
this action against Defendants Showtime Events Inc.
("Showtime") and Amilcar Mendez (collectively,
'"Defendants"), alleging trademark infringement
and unfair competition in violation of the Lanham Act, 15
U.S.C. §§ 1114(1) and 1125(a), and cybersquatting
in violation of the Anticybersquatting Consumer Protection
Act ("ACPA"), 15 U.S.C. § 1125(d)(1)(a). Now
pending before the Court is Plaintiffs Motion for Default
Judgment, ECF No. 13. No hearing is necessary. Loc. R. 105.6
(D. Md. 2016). For the following reasons, Plaintiffs Motion
for Default Judgment is denied.
is an entertainment business that provides services such as
event production. audio/visual services, themed decor and
event management. ECF No. 1 ¶ 8. Applause owns Federal
Trademark Registration No. 3, 756, 459 for the "Showtime
Events" trademark ("the '459 trademark")
and conducts business under that name. Id. at 1
& ¶ 9: see also ECF No. 1-1. The Showtime
Events trademark has been in exclusive and continuous use by
Plaintiff since January 1, 1996. Id. ¶ 10.
Applause currently has offices in North Carolina, Michigan
and Florida and plans to "expand into other markets in
the near future."" Id. ¶ 8. Applause
has expended substantial money and resources in advertising
and promoting their mark throughout the United States,
resulting in a mark that is "inherently
distinctive" and which has "acquired
distinctiveness among relevant purchasers." Id.
¶ 1, 1.
Showtime Events Inc. is a Maryland corporation with its
principal place of business in Hyattsville, Maryland and
Defendant Mendez, a resident of the State of Maryland, is an
officer and managing member of Showtime Events Inc.
Id. ¶ 3. Defendants are also in the
entertainment industry, promoting and selling event
management services in the Washington. D.C.. Maryland and
Virginia region. Id. ¶ 16; see also
ECF Nos. 1-4 & 1-7. Applause alleges that Showtime Events
Inc. forfeited its corporate charter in or around 2012 and,
since that time, Defendant Mendez has been operating the
company as a sole proprietorship. Id. ¶ 4.
April 26, 2011. Defendants established a website,
www.showtimeeventsinc.com, to promote their company.
Id. ¶¶ 16. 33; see also ECF No.
1-2. They also established and promoted their company using
the names "Showtime Events" or "Showtime
Events Inc." on various social media pages, such as
Facebook. and event planning websites, such as Wedding Wire
and the Knot. Id. ¶¶ 14-17; see
also ECF Nos. 1-3. 1-9 & 1-10. Plaintiff alleges
that Defendants had actual knowledge of their Showtime Events
trademark prior to establishing these websites and listings.
March 19, 2014, Applause notified Defendants of their
infringing use of the Showtime Events mark and requested that
they cease their use of the mark. Id. ¶¶
28, 34. Defendants allegedly refused, and continued their use
of the mark both in their business and on their website.
August 25, 2014, Plaintiff reached out to the host of
Defendants' website, Homestead Technologies, and notified
them of Defendants' allegedly infringing use of their
mark. Id. ¶ 36. Homestead, in turn, contacted
Defendants and requested the removal of the infringing
content, which Defendants declined to do. Id. ¶
37. This process was repeated in January 2016, with Homestead
taking the additional step of disabling Defendants'
website until the request was complied with. Id.
¶ 38, 39. Defendants removed certain content but
continued to retain the domain name and operate social media
pages using the Showtime Events mark. Id. ¶ 40.
alleges that the Showtime Events mark, as used by Applause
over the past twenty years, is "incontestable,
distinctive and has acquired secondary meaning."
Id. ¶ 21. They further allege that
Defendants' unauthorized use of their mark is likely to
cause confusion among potential customers by creating the
impression that 'Applause itself has offered or endorsed
Plaintiffs services."' Id. ¶¶ 22.
25. Plaintiff alleged that this infringement is willful and
"designed to specifically trade and capitalize upon the
substantial goodwill of Applause's trademark, "
id. ¶ 28, and that this infringement has caused
Plaintiffs goodwill to be "damaged." Id.
¶ 27. Plaintiff alleges that Defendants" conduct
has caused them harm through lost sales and profits, and
forced them to incur the expenses associated with attempting
to halt Defendants' actions. ECF No. 13-1 ¶ 41. With
respect to their cybersquatting claim, Plaintiff alleges that
Defendants' registration of the domain name and continued
operation of the website and social media pages demonstrate a
bad faith intent to profit from the mark. ECF No. 1 ¶
16. 2016. Plaintiff filed the instant case, alleging
trademark infringement and unfair competition in violation of
the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a).
and cybersquatting in violation of the Anticybersquatting
Consumer Protection Act, 15 U.S.C. § 1125(d)(1)(a). ECF
No. 1. Defendants were served via a private process server on
June 10, 2016. ECF Nos. 7 & 8.
to the Declaration of Plaintiffs counsel, Caitlin Grant,
attached to the Motion for Default, on August 5, 2016,
attorney Emily Hanson sent a letter to Plaintiff on behalf of
Defendant Mendez expressing his interest in settling the
dispute. ECF No. 13-2 at 2-3. Counsel for Plaintiff
acknowledged receipt of the letter on August 26, 2016 and
replied to Hanson with a draft settlement agreement on August
29, 2016. Id. at 2, 4. Receiving no response,
Plaintiff mailed the draft settlement agreement to Defendant
Mendez at the address provided by Hanson. Id. at 2,
6. In the letter, Plaintiff warned Mendez that if they did
not reach an agreement by September 15, 2016, Plaintiff would
move for default judgment. Id. at 6. Again receiving
no response. Plaintiff emailed Hanson asking for confirmation
that Mendez accepted the terms of settlement. Mat 7.
response was forthcoming with respect to this final attempt
to negotiate, ECF No. 13-2 at 2, Plaintiff filed a Motion for
Clerk's Entry of Default and a Motion for Default
Judgment on September 16. 2016. ECF Nos. 12 and 13. An Order
of Default was entered by the Clerk of the Court against
Defendants on October 6, 2016. ECF No. 14.
STANDARD OF REVIEW
defendant's default does not automatically entitle the
plaintiff to entry of a default judgment: rather, that
decision is left to the discretion of the court.''
Choice Hotels Intern.. Inc. v. Savannah Shakti Carp..
No. DKC-11-0438, 2011 WL 5118328 at * 2 (D. Md. Oct. 25.
2011) (citing Dow v. Jones, 232 F.Supp.2d 491, 494
(D. Md. 2002)). Although "[t]he Fourth Circuit has a
'strong policy' that 'cases be decided on their
merits, '", id. (citing
United States v. Shaffer Equip. Co., 11 F.3d 450,
453 (4th Cir. 1993)), ''default judgment may be
appropriate when the adversary process has been halted
because of an essentially unresponsive party[.]"
Id. (citing S.E.C. v. Lawbaugh, 359
F.Supp.2d 418, 421 (D. Md. 2005)). "Upon default, the
well-pled allegations in a complaint as to liability are
taken as true, although the allegations as to damages are
not." Lawbaugh, 359 F.Supp.2d at 422. When
considering a Motion for Default Judgment, the Court
"must [then] determine whether [those] allegations .. .
support the relief sought in th[e] action." Int
7 Painters & Allied Trades Indus. Pension Fund v.
Capital Restoration & Painting Co., 919 F.Supp.2d
680, 685 (D. Md. 2013) (citation and internal quotation marks