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AARP v. Sycle

United States District Court, D. Columbia.

November 27, 2013

AARP, Plaintiff,
v.
MICHAEL SYCLE, Defendant

Page 225

[Copyrighted Material Omitted]

Page 226

For AARP, Plaintiff: John J. Dabney, MCDERMOTT WILL & EMERY LLP, Washington, DC.

OPINION

Page 227

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

Plaintiff AARP (" AARP" ) filed suit against Defendant Michael Sycle (" Sycle" ) on April 30, 2013 alleging trademark counterfeiting and infringement under the Lanham Act and District of Columbia law. See Compl., Dkt. No. [1]. Although properly and timely served with the Complaint and Summons, Defendant failed to respond to the Complaint, and the Clerk of the Court, upon motion by Plaintiff, entered default against Defendant on July 19, 2013. See Clerk's Entry of Default as to Michael Sycle, Dkt. No [8]. Presently before the Court is Plaintiff's [10] Motion for Default Judgment. Having thoroughly considered Plaintiff's submissions [1], including the attachments thereto, applicable case law, statutory authority, and the record of the case as a whole, the Court shall GRANT IN PART AND HOLD IN ABEYANCE IN PART Plaintiff's [10] Motion for Default Judgment.

I. BACKGROUND

Plaintiff filed a Complaint in the above-captioned case on April 30, 2013, alleging (1) trademark counterfeiting, trademark infringement, unfair competition, false designation of origin, and false advertising under the Lanham Act, 15 U.S.C. § § 1114, 1125, and (2) trademark infringement, unfair competition, and false designation of origin under District of Columbia common law. Compl. ¶ ¶ 24-37. Plaintiff is a non-profit organization with its principal place of business in Washington, D.C. that works to promote the interests of persons age 50 and over. Id. ¶ ¶ 7-8. As is relevant to the instant case, Plaintiff is the owner of all rights in and to several trademarks relating to insurance and insurance-related services (Reg. Nos. 1,046,998; 1,335,496; 2,461,155; 3,236,039; 3,493,206) (hereinafter

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" AARP Marks" ). Pl.'s Mem. at 1; see also Compl. 11. Through its licensees, Plaintiff offers a wide variety of products and services under the AARP mark, including insurance. Compl. ¶ 9. Plaintiff receives royalties from the use of its marks in connection with the sale of insurance. Id. ¶ 10.

Defendant is an insurance broker operating under the name M& G Insurance Group, Inc. Id. ¶ 2. According to Plaintiffs Complaint, Defendant uses " AARP" to advertise and promote his insurance business without Plaintiffs permission. Id. ¶ ¶ 3, 13. Despite the fact that he does not sell AARP-branded insurance, Defendant falsely offers to sell " AARP Life Insurance" on his website, alifetimeinsurance.com. Id. ¶ ¶ 13-14. He has also falsely advertised his ability to sell " AARP Life Insurance" through Internet advertisements and YouTube videos directing viewers to his website and toll-free telephone number. Id. ¶ ¶ 14-16.

Prior to initiating this litigation, Plaintiff demanded that Defendant cease his use of the AARP Marks. Id. ¶ 17. However, even after being contacted by Plaintiff, Defendant continued to use Plaintiffs AARP Marks to promote his insurance business and create the false impression that his company sells AARP-branded insurance. Id. ¶ ¶ 17-18. Consequently, Plaintiff commenced this trademark counterfeiting and infringement action on April 30, 2013. Defendant was served with the Complaint and Summons on June 14, 2013 and was therefore required to respond by July 5, 2013. See Return of Service/Affidavit, Dkt. No. [5]; see also Pl.'s Mot. for Entry of Default, Dkt. No. [6]. Defendant failed to file an answer or otherwise respond to Plaintiff's Complaint, and Plaintiff moved for entry of default as to Defendant. See Pl.'s Mot. for Entry of Default, Dkt. No. [6]. On July 19, 2013, the Clerk of the Court entered default against Defendant. See Clerk's Entry of Default as to Michael Sycle, Dkt. No. [8]. Plaintiff now moves for entry of default judgment. See Pl.'s Mot. As of the date of Plaintiff's motion, Defendant continued to employ AARP marks on his website and maintain YouTube videos falsely advertising that his company offers AARP-branded insurance.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 55(a) provides that the Clerk of the Court must enter a party's request for a default " [w]hen 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." Fed.R.Civ.P. 55(a). After a default has been entered by the Clerk, a party may move the court for a default judgment. Fed.R.Civ.P. 55(b)(2). " The determination of whether default judgment is appropriate is committed to the discretion of the trial court." Int'l Painters & Allied Trades Indus. Pension Fund v. Auxier ...


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