Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ECBlend LLC v. The Mad Alchemist Elixirs & Potions LLC

United States District Court, D. Oregon, Medford Division

December 1, 2017

ECBLEND, LLC, an Oregon Domestic Limited Liability Company, Plaintiff,
v.
THE MAD ALCHEMIST ELIXIRS & POTIONS, LLC, a Kentucky Limited Liability Company, Defendant.

          OPINION & ORDER

          MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff ECBlend, LLC's Motion for Default Judgment, ECF No. 13. For the reasons discussed below, the motion is GRANTED.

         BACKGROUND

         The following facts are taken from the Complaint in this case, filed August 17, 2017, ECF No. 1:

         Plaintiff ECBlend, LLC, (“ECBlend”) is an Oregon limited liability company with its principal place of business in Medford, Oregon. ECBlend is engaged in the business of manufacturing and distributing chemical flavorings for use in electronic cigarette cartridges. ECBlend advertises and sells its e-liquid and e-cigarette products nationwide through its website and wholesale distributors, as well as through retail locations in Arizona, Oregon, Washington, and Wisconsin.

         ECBlend is the registrant and owner of the trademark “Dragon's Breath, ” U.S. Registry No. 4, 368, 604 (the “604 Registration, ”). ECBlend has used that mark in commerce with respect to chemical flavorings in liquid form to refill electronic cigarette cartridges since July 2012. ECBlend's products have become associated with the mark and ECBlend has the exclusive right to use said mark in commerce.

         Defendant The Mad Alchemist Elixirs & Potions, LLC, (“Mad Alchemist”) is a Kentucky limited liability company with its principal place of business in London, Kentucky. Mad Alchemist is in the same line of business as ECBlend. Mad Alchemist advertises and sells its products through its website and through retail stores. Among its products, Mad Alchemist manufactures and sells an e-liquid product under the name “Dragon's Breath.” Mad Alchemist's use of the term “Dragon's Breath” as a word mark is identical to the 604 Registration owned by ECBlend.

         ECBlend has not consented to Mad Alchemist's use in commerce of the mark “Dragon's Breath” on its products. On June 30, 2017, ECBlend sent a cease and desist letter to Mad Alchemist requesting that Mad Alchemist refrain from using “Dragon's Breath” in association with the marketing and sale of its products and services. Mad Alchemist continued to use “Dragon's Breath” in connection with its products.

         ECBlend commenced this action on August 17, 2017. ECF No. 1. Mad Alchemist was served, but did not appear or otherwise defend in this action. On November 15, 2017, ECBlend filed a Motion for Entry of Default, which was entered by the Clerk on November 16, 2017. ECF Nos. 9, 11, 12.

         LEGAL STANDARD

         Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk of Court is required to enter an order of default if a party against whom affirmative relief is sought has failed timely to plead or otherwise defend an action. “The general rule is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977) (citations omitted); See also Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008).

         Rule 55 “provides that after the clerk's entry of default against a defendant, a court may enter default judgment against that defendant.” FirstBank P.R. v. Jaymo Props., LLC, 379 F. App'x 166, 170 (3d Cir. 2010). “The district court's decision whether to enter a default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In exercising its discretion, district courts in the Ninth Circuit consider the factors articulated in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986). The Eitel factors are: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff's substantive claims; (3) the sufficiency of the operative complaint; (4) the sum of money at stake in the litigation; (5) the possibility of dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471-72. The “starting point” of the district court's analysis, however, “is the general rule that default judgments are ordinarily disfavored.” Id. at 1472.

         DISCUSSION

         The Complaint in this action sought a permanent injunction against Mad Alchemist's continuing use of the Dragon's Breath mark, damages for the infringement, and ECBlend's costs in bringing this action. In its Motion for Default Judgment, ECBlend seeks a permanent injunction and its costs, but ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.