The opinion of the court was delivered by: Eduardo C. Robreno, J.
Plaintiff Metropolitan Fire Protection Co., Inc. ("Plaintiff") has brought a Motion for the Entry of Default Judgment against Defendants Metropolitan Fire Protection, Inc. ("MFP") and Carlos Antonio Fleming ("Fleming") (collectively, "Defendants").*fn2 Fleming is the owner and principal operator of MFP. Plaintiff filed this action to seek relief for unfair competition by false designation of origin by trade name and service mark infringement; trade name or service mark dilution; injury to business reputation and dilution; and common law unfair competition, palming off, trade name, and trademark infringement.
Plaintiff and MFP compete in the identical or substantially similar marketplace -- residential and commercial fire suppression services. Plaintiff has not nationally trademarked the name Metropolitan Fire Protection, but Plaintiff has operated as Metropolitan Fire Protection in the commonwealth of Pennsylvania since 1995. As such, Plaintiff is well-known in the commonwealth of Pennsylvania by the name Metropolitan Fire Protection.
On December 10, 2009, Pennsylvania amended its uniform construction code. The amendment required that, beginning in 2010, all newly constructed townhouses must have a fire sprinkler system. Moreover, beginning in 2011, all newly constructed single and two family homes are required to have a sprinkler. This amendment expanded Plaintiff's business. Plaintiff claims that this amendment enticed Defendants to enter the Pennsylvania marketplace.
At the hearing it was established that Defendants have, indeed, entered the Pennsylvania marketplace under the name Metropolitan Fire Protection, Inc. Defendants' use of the name Metropolitan Fire Protection, Inc. has caused substantial confusion in the Pennsylvania area regarding who is providing fire suppression services as Metropolitan Fire Protection. (See Plaintiff's Exhibit 2(emails from clients relating to confusion as to who they are receiving services from when hiring Metropolitan Fire Protection).) Starting February 4, 2010, Plaintiff's counsel alerted Defendants as to the confusion. (Plaintiff's Exhibit 3.) In response to the February 4, 2010 communication, Defendants stated they had no interest in operating in Pennsylvania under the name Metropolitan Fire Protection Company; however, Defendants continued to operate in Pennsylvania under this name. Again, on April 28, 2010 and May 13, 2010, Plaintiff's counsel wrote to Defendants. Defendants did not respond to Plaintiff's letters nor did Defendants cease operating in Pennsylvania under the name Metropolitan Fire Protection, Inc.
Plaintiff filed its complaint on July 27, 2010. On July 30, 2010, Plaintiff requested a waiver of service of summons, but Defendants ignored Plaintiff's request. Thereafter, Plaintiff hired a process server to make service on Defendants at their home office in Clinton, Maryland. Service was made on October 23, 2010. Defendants were required to respond to the complaint on or before November 12, 2010. Defendants never responded to the complaint, and on December 1, 2010, Plaintiff filed affidavits for the entry of default as to both Defendants. Default was entered against Defendants on December 2, 2010. Defendants were then served with affidavits of default and did not respond or enter an appearance in this case. Despite havingclear notice of this lawsuit, Defendants intentionally and willfully ignored the Court and has continued to trade as "Metropolitan Fire Protection" in the Pennsylvania fire protection marketplace.
Rule 55 of the Federal Rules of Civil Procedure governs the entry of defaults and default judgments, and provides that, where the Plaintiff's claim is not for a sum certain, a party must "apply to the court for a default judgment." Fed. R. Civ. P. 55(b)(2). In general, three factors control a court's decision as to whether a default judgment should be granted: (1) whether the plaintiff will suffer prejudice if a default judgment is denied; (2) whether the defendant appears to have a litigable defense; and (3) whether the defendant's delay is due to culpable conduct. See Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).
First, Plaintiff has demonstrated it will suffer prejudice if default is not entered because Plaintiff has demonstrated irreparable harm. In the Third Circuit, trademark infringement is deemed irreparable injury as a matter of law. Citizens Fin. Group, Inc. v. Citizens Nat. Bank of Evans City, 383 F.3d 110, 125 (3d Cir. 2004). Plaintiff has averred that since Defendants are operating in Plaintiff's home market, utilizing Plaintiff's trade mark, and offering similar fire protective services to the same clients, as a matter of law, Plaintiff is being irreparably harmed by Defendants' culpable conduct. Consequently, Plaintiff is being prejudiced by Defendants' delay.
Second, Plaintiff has demonstrated that Defendants have no litigable defense. The standard to be applied when determining whether a Plaintiff is likely to succeed on the merits of its claims of trademark infringement and unfair competition is "the likelihood of confusion as regards to the origin or source of the products in question that would occur through the continued use by the defendant of the defendant's trademark." Am. Express, Co. v. Pan Am. Express, 509 F. Supp. 348, 351 (E.D. Pa. 1981). "To prevail in cases where a mark is unregistered, a plaintiff must also show (1) that he was the first to adopt the mark in commerce; (2) he has used the mark continuously in commerce since its adoption; and (3) his mark is inherently distinctive or has acquired secondary meaning." Delaware Valley Fin. Group, Inc. v. Principal Life Ins. Co., 640 F. Supp. 2d 603, 619 (E.D. Pa. 2009). In this case, Plaintiff has testified that it has been continually identified by and has used the trade name "Metropolitan Fire Protection" in the Pennsylvania marketplace since 1995.
Additionally, the Third Circuit applies ten factors when determining whether there is a likelihood of confusion. The ten factors include:
(1) the degree of similarity between the owner's mark and the ...