United States District Court, D. Oregon, Medford Division
ECBLEND, LLC, an Oregon Domestic Limited Liability Company, Plaintiff,
THE MAD ALCHEMIST ELIXIRS & POTIONS, LLC, a Kentucky Limited Liability Company, Defendant.
OPINION & ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE
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.
following facts are taken from the Complaint in this case,
filed August 17, 2017, ECF No. 1:
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.
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
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.
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.
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.
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).
“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.
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 ...