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Entrepreneur Media, Inc. v. Spencer

United States District Court, D. Colorado

December 15, 2017

ENTREPRENEUR MEDIA, INC., Plaintiff,
v.
WILLIAM SPENCER, an individual, FREE INTERNET MEDIA, INC., a Colorado corporation dba MEMEBRIDGE, and DOES 1-10, Defendants. TRADEMARK CLASS: GOODS/SERVICES REG. NO. REG. DATE

          ORDER REGARDING PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT AGAINST DEFENDANTS AND JUDGMENT AND PERMANENT INJUNCTION AGAINST DEFENDANTS.

          Hon. R. Brooke Jackson United States District Judge.

         Upon consideration of Plaintiff Entrepreneur Media, Inc.'s (“EMI”) Application for Entry of Default Judgment against defendants Free Internet Media, Inc., dba Memebridge (“Memebridge”) and William Spencer (“Spencer”) (collectively, “Defendants”) [ECF No. 19] and all supporting documents and pleadings of record, and good cause appearing therein, the Court hereby ORDERS that the application is GRANTED, enters this JUDGMENT and a PERMANENT INJUNCTION against Defendants, and FINDS as follows:

         I. DEFAULT JUDGMENT AGAINST DEFENDANTS IS APPROPRIATE

         Federal Rule of Civil Procedure 55(b)(2) provides that a court may enter default judgment and, if necessary to effectuate judgment, conduct an accounting, determine the amount of damages, establish the truth of any allegation by evidence, or investigate any other matter. Entering default judgment is within the discretion of the Court and requires two considerations. See Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010). The “Court must first consider whether it has jurisdiction over the subject matter and the defendants.” CrossFit, Inc. v. Jenkins, 69 F.Supp.3d 1088, 1093 (D. Colo. 2014). “The Court then must consider whether the well-pleaded factual allegations in the complaint support a judgment on the claims against the defaulting defendants.” Big O Tires, LLC v. C&S Tires, Inc., 2017 U.S. Dist. LEXIS 79939, at *6-7 (D. Colo. May 24, 2017). A plaintiff establishes trademark infringement or unfair competition by demonstrating that it “(1) owns a protectable trademark; [and] (2) that Defendant[s] used [a] [disputed] trademark” that is “likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” Grady v. Nelson, 2014 U.S. Dist. LEXIS 172759, at *17 (D. Colo. Dec. 15, 2014). As further discussed in Sections 2 and 3 below and briefly summarized here, EMI has satisfied both requirements for the entry of default judgment against Defendants.

         First, the Court has subject-matter jurisdiction over EMI's claims for trademark infringement, unfair competition, and false designation of origin because they are federal claims brought under the Lanham Act. See 28 U.S.C. §§ 1391(b)(1), (b)(2), (c)(2); 15 U.S.C. §§ 1114, 1125. The Court also has personal jurisdiction over Defendants because they are residents of Colorado and have conducted substantial business within Colorado under the ENTREPRENEUR SUPPORT mark, thereby committing tortious acts within the State. See CrossFit, Inc., 69 F.Supp.3d at 1094 (while Plaintiff “bears the burden of establishing personal jurisdiction, ” where, as here, “the issue is determined on the basis of the pleadings and affidavits, that burden may be met by a prima facie showing”).

         Second, the well-pleaded factual allegations in the Complaint support the entry of judgment against the Defendants. EMI has complied with the procedural requirements for default judgment, including securing the entry of default against Defendants. As discussed below, Defendants have infringed EMI's strong, famous, and distinctive marks and this misconduct shows no signs of abating. Because the “well-pleaded factual allegations of [the] complaint are deemed true, ” there is no possibility of a dispute concerning the material facts. See Big O Tires, LLC, 2017 U.S. Dist. LEXIS 79939, at *7. Accordingly, the entry of default judgment against Defendants is appropriate.

         II. THE COURT HAS JURISDICTION OVER DEFENDANTS

         “Colorado's long arm statute provides that a defendant is subject to personal jurisdiction where he or she engages in the ‘transaction of any business within this state' or commits a ‘tortious act within this state.'” CrossFit, Inc., 69 F.Supp.3d at 1094 (citing Colo. Rev. Stat. § 13-1-124). This Court thus has personal jurisdiction over Defendants because they are residents of Colorado and have conducted substantial business within Colorado under the ENTREPRENEUR SUPPORT mark, thereby committing tortious acts within the State. Moreover, this Court has personal jurisdiction over Defendants because, at all relevant times, they were residents of and domiciled in the State of Colorado. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011) (noting that Defendant's domicile in the District is a “paradigm” basis for establishing personal jurisdiction). Asserting claims against Defendants in their home court in this case thus comports with “traditional notions of fair play and substantial justice.” Big O Tires, LLC, 2017 U.S. Dist. LEXIS 79939, at *14-15 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

         Accordingly, the Court hereby FINDS that it has specific jurisdiction over Defendants and may properly enter a default judgment against Defendants.

         III. DEFENDANTS HAVE INFRINGED EMI'S TRADEMARK RIGHTS

         A. EMI'S TRADEMARK RIGHTS

TRADEMARK
CLASS: GOODS/SERVICES
REG. NO. REG. DATE

ENTREPRENEUR

16: Paper goods and printed matter; namely magazines, books and published reports pertaining to business opportunities

1, 453, 968

Aug. 25, 1987

ENTREPRENEUR

35: Advertising and business services, namely, arranging for the promotion of the goods and services of others by means of a global computer network and other computer online services providers; providing business information for the use of customers in the field of starting and operating small businesses and permitting customers to obtain information via a global computer network and other computer online service providers and; web advertising services, namely, providing active links to the websites of others

2, 263, 883

July 27, 1999

ENTREPRENEUR

35: Arranging and conducting trade show exhibitions in the field of entrepreneurial activities, namely the start-up and operation of small business enterprises

41: Educational services, namely, conducting seminars on the development and operation of businesses, and conducting workshops on computer technology, telecommunications, marketing, financing options, real estate management, tax planning and insurance

2, 502, 032

Oct. 30, 2001

ENTREPRENEUR

38: Streaming of video and digital material on the Internet

4, 260, 948

Dec. 18, 2012

ENTREPRENEUR

9: downloadable computer software and software for mobile devices for the reproduction, display and distribution of digitized content.

4, 345, 424 June 4, 2013

ENTREPRENEUR BOOKSTORE

35: Online ordering services featuring printed and electronically downloadable publications, namely, books, study guides, legal and business forms, and newsletters, concerning advice and information relating to starting and operating a business and other topics concerning and of interest to entrepreneurs, new and existing businesses, and members of the general public

4, 612, 937

September

30, 2014

ENTREPRENEUR PRESS

16: Paper goods and printed matter, namely, books, manuals, prepared reports, work books, study guides, legal and business forms, and newsletters concerning advice and information relating to the subjects of starting, running and operating a business, and individuals who succeeded in business, which subjects are of interest to entrepreneurs, new and existing businesses and members of the general public

35: On-line ordering services featuring printed and electronically downloadable publications, namely, books, study guides, legal and business forms, and newsletters, concerning advice and information relating to the subjects of starting, running and operating a business and individuals who succeeded in business, which subjects are of interest to entrepreneurs, new and existing businesses and members of the general public

3, 470, 064

July 22, 2008

EP Entrepreneur Press

16: Paper goods and printed matter, namely, books, manuals, prepared reports, work books, study guides, legal and business forms, and newsletters concerning advice and information relating to the subjects of starting, running and operating a business, and individuals who succeeded in business, which subjects are of interest to entrepreneurs, new and existing businesses, and members of the general public

35: Online ordering services featuring printed and electronically downloadable publications, namely, books, study guides, legal and business forms, and newsletters, concerning advice and information relating to the subjects of starting, running, and operating a business and individuals who succeeded in business, which subjects are of interest to entrepreneurs, new and existing businesses, and members of the general public

3, 470, 063

July 22,

2008

ENTREPRENEUR'S STARTUPS

9: Downloadable computer software and software for mobile devices for the reproduction, display, distribution, and sharing of digitized content; downloadable electronic publications, namely, magazines in the fields of business, finance, sales, marketing, current events, lifestyle issues, and developments in science and technology

4, 532, 577

May 20,

2014

ENTREPRENEUR'S STARTUPS

16: Paper goods and printed matter; namely, magazines, books, booklets and published reports pertaining to business opportunities

3, 204, 899 Feb. 6, 2007

ENTREPRENEUR 360

16: Annual featured issue of magazine featuring the achievements of successful non-franchise and privately-owned businesses and publications related thereto, providing information and incentive to others to pursue excellence in business pursuits by presenting awards on an annual basis, and promoting award recipients and providing recognition by the way of awards to demonstrate excellence in the field of business.

5, 052, 999

October 4,

2016

35: Advertising and business services, namely, arranging for the promotion of the goods and services of others by means of a global computer network and other computer online services providers; providing business information to customers in the field of starting and operating non-franchise and privately-owned businesses by means of a global computer network and other computer online service providers; advertising services, namely, providing advertising space in a magazine featuring news and information concerning the field of non-franchise and privately-owned businesses; providing statistics, ratings, and rankings and other information capable of being updated on a continuing basis through an interactive database and about businesses which are not franchises and are privately-owned.

41: Recognizing the achievements of successful non-franchise and privately-owned businesses and providing incentive to others to pursue excellence in business pursuits by presenting a wards on an annual basis and promoting award recipients; providing recognition by the way of awards to demonstrate excellence in the field of business; arranging and conducting educational conferences; educational services, namely, developing, arranging, and conducting educational conferences and programs and providing courses of instruction in the field of business administration and management

         EMI's registration numbers 1, 453, 968; 2, 263, 883; and 2, 502, 032 for ENTREPRENEUR® and 3, 204, 899 for ENTREPRENEUR'S STARTUPS® are incontestable.

         The federal registrations for the EMI Marks constitute prima facie evidence that the marks are valid and owned by EMI. 15 U.S.C. § 1115(a). The incontestable registrations for the EMI Marks noted above constitute “conclusive evidence” of the validity of those registered marks, EMI's ownership of those marks, and EMI's “exclusive right to use the mark[s] in commerce.” 15 U.S.C. § 1115(b).

         Further, other courts have already recognized the validity and strength of the EMI Marks, including the ENTREPRENEUR® Mark, and this Court concurs with those decisions. For example, the U.S. District Court for the Central District of California held that: (1) “[t]he extensive advertising and public recognition over the past 25 years have established [the ENTREPRENEUR® mark] as a strong mark in the industry;” (2) the ENTREPRENEUR® mark “is a strong distinctive mark, deserving of significant protection;” and (3) the ENTREPRENEUR® mark “has acquired secondary meaning.” Entrepreneur Media, Inc. v. Smith, No. 98-3607, 2004 U.S. Dist. Lexis 24078, at *9-10, 13 (C.D. Cal. June 23, 2004). The Ninth Circuit reviewed the District Court's findings and affirmed them on appeal. Entrepreneur Media, Inc. v. Smith, 101 Fed.Appx. 212 (9th Cir. 2004).

         Similarly, the U.S. District Court for the District of Connecticut recognized that “the EMI Marks, and in particular the ENTREPRENEUR Mark, have acquired extensive goodwill, developed a high degree of distinctiveness and secondary meaning, and become well known and recognized as identifying goods and services that originate from EMI, such that they are deserving of strong ...


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