United States District Court, M.D. Florida, Tampa Division
ORDER GRANTING FRENCHY'S CORPORATE, INC.'S
MOTION FOR FINAL DEFAULT JUDGMENT AND PERMANENT
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court pursuant to Frenchy's
Corporate, Inc.'s Motion for Final Default Judgment and
Permanent Injunction (Doc. # 23), which was filed on March
28, 2018. As explained below, the Court grants the Motion.
Standard Federal Rule of Civil Procedure 55(a)
sets forth the following regarding an entry of default:
(a) Entering a Default. When 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, the clerk must enter the party's default.
district court may enter a default judgment against a
properly served defendant who fails to defend or otherwise
appear pursuant to Federal Rule of Civil Procedure 55(b)(2).
Direc TV, Inc. v. Griffin, 290 F.Supp.2d 1340, 1343
(M.D. Fla. 2003).
mere entry of a default by the Clerk does not, in itself,
warrant the Court entering a default judgment. See Tyco
Fire & Sec. LLC v. Alcocer, 218 F. App'x 860,
863 (11th Cir. 2007) (citing Nishimatsu Constr. Co. v.
Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975)). Rather, a court must ensure that there is a
sufficient basis in the pleadings for the judgment to be
entered. Id. A default judgment has the effect of
establishing as fact the plaintiff's well-pled
allegations of fact and bars the defendant from contesting
those facts on appeal. Id.
Corporate initiated this action on February 21, 2018, by
filing a three-count complaint against Frenchy's Pizzeria
& Tavern, Inc., Mark Spier, and Andrea French. (Doc. #
1). Count 1 seeks redress under the Lanham Act for trademark
infringement. (Id.). Count 2 is also asserted under
the Lanham act and seeks relief for unfair competition.
(Id.). Finally, Count 3 seeks redress for violations
of Florida's Deceptive and Unfair Trade Practices Act.
(Id.). Frenchy's Corporate served Frenchy's
Pizzeria and Spier on February 28, 2018. (Doc. ## 14, 16).
Frenchy's Corporate served French on March 1, 2018. (Doc.
# 15). The Affidavits of the process server establish that
the individual Defendants, Spier and French, are not members
of the United States Armed Forces. (Doc. ## 15, 16).
Thereafter, Frenchy's Corporate filed a Motion for
Preliminary Injunction seeking an Order enjoining Defendants
from using the “Frenchy'sTM” mark,
among other relief. (Doc. # 17).
did not respond to the Complaint, and on March 26, 2018,
Frenchy's Corporate sought entry of Clerk's Default
against Defendants. (Doc. # 20). On March 27, 2018, the Clerk
entered a Default against Defendants. (Doc. # 22).
upon the Clerk's entry of Default and the well-pled
factual allegations contained in the Complaint and Motion for
Preliminary Injunction, Frenchy's Corporate has
established that Frenchy's Corporate, Inc. has a valid
and enforceable trademark in the name
“Frenchy's” in the restaurant goods and
services sector. Frenchy's Corporate, Inc. has
established its claim for infringement of an unregistered
trademark and unfair competition under 15 U.S.C. §
1125(a) of the Lanham Act (Counts 1 and 2). In addition,
Frenchy's Corporate, Inc. Has shown that Defendants
violated Florida's Deceptive and Unfair Trade Practices
Act (Count 3). Plainly, in Florida, “engaging in
trademark infringement is an unfair and deceptive trade
practice that violates [FDUTPA].” Slep-Tone
Entm't Corp. v. Snappers Bar & Grill, Inc.,
8:12-cv-157-JSM-EAJ, 2013 WL 2039624, at *2 (M.D. Fla. May
15, 2013). In addition to establishing that it is entitled to
all of the relief sought in the Complaint, Frenchy's
Corporate, Inc. has demonstrated that it is entitled to a
permanent injunction against Defendants which enjoins them
from wrongfully infringing on the
“Frenchy'sTM” mark. The Court
further determines that a hearing on this matter is not
reviewed the Motion and the file as a whole, it is
accordingly, ORDERED, ADJUDGED, and
Frenchy's Corporate, Inc.'s Motion for Final Default
Judgment and Permanent Injunction (Doc. # 23) is
Frenchy's Corporate, Inc. has a valid and enforceable
trademark in the name “Frenchy's” in the
restaurant goods and services sector.
Defendants, their officers, agents, servants, employees,
attorneys, and those persons in active concert or
participation with them are ...