United States District Court, D. Arizona
DOUGLAS L. RAYAS, UNITED STATES DISTRICT JUDGE
CrossFit Incorporated moves for default judgment against
Defendants Javier del Cueto and Alfa Extreme Fitness S.A. de
C.V. (“Alfa”) pursuant to Federal Rule of Civil
Procedure 55(b). (Doc. 39.) No response has been filed and
the time for filing one has passed. For reasons stated below,
default judgment is appropriate.
is a Delaware corporation that offers a distinct fitness
program through a worldwide network of affiliates licensed to
open CrossFit gyms (generally referred to as a
“Box”) and use Plaintiff's trademarks.
Through its website, Plaintiff disseminates daily workout
information known as the “Workout of the Day” or
“WOD.” Plaintiff has used the mark
“CrossFit” since at least 1985, and the marks
“Workout of the Day, ” “WOD, ” and
“Box” since at least 2003. Additionally, the mark
“CrossFit” has been registered with the United
States Patent and Trademark Office since at least 2005.
Cueto entered into an affiliate agreement with Plaintiff in
November 2011, which authorized him to create a CrossFit
affiliate called “CrossFit BETA” and to offer the
program at a single location in Mexico. As part of the
agreement, Plaintiff granted del Cueto a non-transferable and
non-sublicenseable license to use the CrossFit mark solely
for purposes outlined in the affiliate agreement, including
in the internet domain name crossfitbeta.com. Del Cueto also
agreed that, if his gym provides non-CrossFit services, he
would in no way imply that those services are endorsed by
these terms, del Cueto (operating through Alfa) began using
the CrossFit mark to build a competing business in a manner
prohibited by the affiliate agreement. For example,
Defendants registered the domain name
“www.wodbox.com, ” began using it to
advertise and distribute an unaffiliated “Wodbox”
fitness program and “Wodbox Training Centers, ”
and caused their internet domain to redirect visitors to
wodbox.com. Defendants also caused
www.crossfitalfa.com-another CrossFit-related domain
name registered by del Cueto's brother, Andres Del Cueto
Davalos, who also executed a CrossFit affiliate agreement-to
redirect visitors to wodbox.com. Defendants' affiliate
agreement later expired in November 2013.
February 2014, Plaintiff brought this action, alleging that
Defendants breached the terms of the affiliate agreement and
violated the Lanham Act, 15 U.S.C. §
1125(d).(Doc. 1.) Defendants were served with the
summons and complaint pursuant to the Hague Convention on
February 16, 2017 (Doc. 33), but failed to appear or
otherwise respond to the complaint. The Clerk of the Court
entered default as to Defendants on June, 6, 2017. (Doc. 36.)
Plaintiff now seeks entry of a default judgment against them.
Default Judgment Standard
default is entered by the clerk, the district court may enter
default judgment pursuant to Rule 55(b). The court's
“decision whether to enter a default judgment is a
discretionary one.” Aldabe v. Aldabe, 616 F.2d
1089, 1092 (9th Cir. 1980). Although the court should
consider and weigh relevant factors as part of the
decision-making process, it “is not required to make
detailed findings of fact.” Fair Housing of Marin
v. Combs, 285 F.3d 899, 906 (9th Cir. 2002).
following factors may be considered in deciding whether
default judgment is appropriate: (1) the possibility of
prejudice to the plaintiff, (2) the merits of the claims, (3)
the sufficiency of the complaint, (4) the amount of money at
stake, (5) the possibility of factual disputes, (6) whether
default is due to excusable neglect, and (7) the policy
favoring decisions on the merits. See Eitel v.
McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In
considering the merits and sufficiency of the complaint, the
court accepts as true the complaint's well-pled factual
allegations, but the plaintiff must establish all damages
sought in the complaint. See Geddes v. United Fin.
Group, 559 F.2d 557, 560 (9th Cir. 1977).
first Eitel factor weighs in favor of default
judgment. Defendants failed to respond to the complaint or
otherwise appear in this action despite being served with the
complaint, the application for default, and the motion for
default judgment. If default judgment is not granted,
Plaintiff “will likely be without other recourse for
recovery.” PepsiCo, Inc. v. Cal. Sec. Cans,
238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). The prejudice to
Plaintiff in this regard supports the entry of default
second, third, and fifth Eitel factors favor default
judgment where, as in this case, the complaint sufficiently
states a plausible claim for relief under the pleading
standards of Rule 8. See Id. at 1175; Danning v.
Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978). A review
of the complaint's well-pled allegations shows that
Plaintiff has stated plausible breach of contract and Lanham
Act claims against Defendants. Moreover, given the
sufficiency of the complaint and Defendants' default,
“no genuine dispute of material facts would preclude
granting [Plaintiff's] motion.” PepsiCo,
238 F.Supp.2d at 1177.
the fourth Eitel factor, the Court considers the
amount of money at stake in relation to the seriousness of
the defendants' conduct. See PepsiCo, 238
F.Supp.2d at 1176. Here, Plaintiff seeks statutory damages in
the amount of $200, 000.00, representing the statutory
maximum of $100, 000 per offending domain name. 15 U.S.C.
§ 1117(d). ...