United States District Court, M.D. Pennsylvania
THE HERSHEY COMPANY and HERSHEY CHOCOLATE & CONFECTIONARY CORPORATION, Plaintiffs
the Court is the motion for default judgment (Doc. No. 24)
filed by Plaintiffs the Hershey Company and Hershey Chocolate
and Confectionary Corporation (“Plaintiffs”)
against Defendant Anykiss (“Defendant”). For the
reasons that follow, the Court will grant the motion and
defer the entry of judgment in favor of Plaintiffs until the
receipt of additional information from Plaintiffs as to its
request for attorney's fees and costs.
initiated the above-captioned action by filing a complaint
against Defendant, a Ukrainian business, in this Court on
April 18, 2018. (Doc. No. 1.) In their complaint, Plaintiffs
assert the following causes of action: a violation of the
Anticybersquatting Consumer Protection Act
(“ACPA”), codified at 15 U.S.C. § 1125(d)
(Count I); unfair competition under the Lanham Act, codified
at 15 U.S.C. § 1125(a) (Count II); and unfair
competition in violation of Pennsylvania common law (Count
III). (Id.) The complaint alleges that Defendant has
interfered with the use of the KISSES (“KISSES”)
mark, which has the corresponding registration numbers 2,
416, 701 and 4, 918, 242 and pertains to Plaintiffs'
widely known chocolate candy products and related merchandise
sold throughout the world. (Id. ¶ 13.)
Specifically, Plaintiffs allege that Defendant has been
operating the internet domain <kisschocolaterie.com>
(the “Offending Domain”), which Defendant uses
“to advertise its business of selling chocolate and
confections under the name ‘KISS
chocolaterie.'” (Id. ¶ 24.) According
to Plaintiffs, “Defendant purports to have founded its
business in 2015, over 100 years after the first use of the
KISSES mark[, ]” and “[t]he Offending Domain
advertises Defendant's business of selling competing
chocolate goods.” (Id. ¶¶ 25-26.)
Plaintiffs further allege that “[t]he Offending Domain
is interactive in that it allows consumers to purchase goods
and to contact  Defendant concerning the goods or franchise
opportunities.” (Id. ¶ 26.) In March of
2016, Defendant unsuccessfully applied for registration of
its KISS CHOCOLATERIE (“KISS CHOCOLATERIE”) mark
with the United States Patent and Trademark Office, which
denied the application on the ground of confusion with the
KISSES mark. (Id. ¶ 27.) According to the
complaint, Defendant subsequently abandoned this unsuccessful
application. (Id.) Plaintiffs add that
“Defendant has reached out to [Plaintiffs']
representatives in an effort to ‘partner' with
[Plaintiffs] by selling authorized Hershey products in its
shop[, ]” an invitation that Plaintiffs declined on the
basis that they do not wish to enter into any such
relationship with Defendant. (Id. ¶ 28.)
to Plaintiffs, “[d]espite Defendant's clear
knowledge of [Plaintiffs'] prior rights in the KISSES
mark, Defendant wrongfully continued to use marks confusingly
similar to the KISSES marks for the purpose of selling its
competing chocolate products through the Offending
Domain.” (Id. ¶ 29.) Plaintiffs maintain
that “[b]y using the KISSES marks (or marks confusingly
similar thereto) in the Offending Domain,  Defendant seeks
to wrongfully benefit from the fame and goodwill associated
with the KISSES marks for Defendant's commercial gain to
[Plaintiffs'] detriment[, ]” and that “[b]y
making unauthorized use of the KISSES marks (or marks
confusingly similar thereto) via the Offending Domain,
Defendant's actions are diluting and/or tarnishing the
goodwill that [Plaintiffs have] developed in the KISSES
marks, thereby causing damage to [Plaintiffs].”
(Id. ¶¶ 30-31.) Plaintiffs assert that, in
light of the above, Defendant's actions are willful and
knowing, in addition to being indicative of “a bad
faith intent to profit . . . from the use of the KISS
CHOCOLATERIE mark and Offending Domain[, ]” which has
harmed and will continue to harm Plaintiffs. (Id.
review of the docket reveals that Plaintiffs filed an
affidavit of service as to Defendant on January 11, 2019,
indicating that Defendant was served on August 28, 2018 (Doc.
No. 13).Defendant, however, did not appear, answer,
move, or otherwise respond to Plaintiffs' complaint.
Consequently, Plaintiffs filed a request with the Clerk of
Court to enter default against Defendant pursuant to Federal
Rule of Civil Procedure 55(a) on February 21, 2019 (Doc. No.
15), which was granted on February 22, 2019 (Doc. No. 16).
Plaintiffs filed the instant motion for default judgment on
June 11, 2019 (Doc. No. 24), along with a brief in support
thereof (Doc. No. 25). Because Defendant has not filed a
response to the motion, the Court deems the motion unopposed.
Accordingly, Plaintiffs' motion is ripe for disposition.
judgments are governed by a two-step process set forth under
Rule 55 of the Federal Rules of Civil Procedure. An entry of
default by the Clerk of Court under Rule 55(a) is a
prerequisite to a later entry of a default judgment under
Rule 55(b). See 10A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure §
2682 (3d ed. 2007) (“Prior to obtaining a default
judgment under either Rule 55(b)(1) or Rule 55(b)(2), there
must be an entry of default as provided by Rule
55(a).”). Once the Clerk of Court has entered a
default, the party seeking the default may then move the
court to enter a default judgment under Rule 55(b)(2). Entry
of default does not entitle a claimant to default judgment as
a matter of right. See 10 James Wm. Moore et
al., Moore's Federal Practice § 55.31
(Matthew Bender ed. 2010). Indeed, it is well settled that
decisions relating to the entry of default judgments are
committed to the sound discretion of the district court.
See Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74
(3d Cir. 1987).
factors control the exercise of the district court's
discretion in assessing whether default judgment should be
granted following the entry of default: “(1) prejudice
to the plaintiff if default is denied, (2) whether the
defendant appears to have a litigable defense, and (3)
whether defendant's delay is due to culpable
conduct.” See Chamberlain v. Giampapa, 210
F.3d 154, 164 (3d Cir. 2000) (citing United States v.
$55, 518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir.
1984)). Yet, if the defendant has been properly served but
fails to appear, plead, or defend an action, a court may
“enter a default judgment based solely on the fact that
the default occurred, ” without considering the
Chamberlain factors. See Anchorage Assocs. v.
Virgin Islands Bd. of Tax Review, 922 F.2d 168, 177 n.9
(3d Cir. 1990).
finding that default judgment is appropriate, however, is not
the end of the inquiry.” Martin v. Nat'l Check
Recovery Servs., LLC, No. 12-1230, 2016 WL 3670849, at
*1 (M.D. Pa. July 11, 2016). Prior to entering a default
judgment, the Court must also determine whether the
“unchallenged facts constitute a legitimate cause of
action.” See Wright, et al.,
supra, at § 2688; Broad. Music, Inc. v.
Spring Mount Area Bavarian Resort, Ltd., 555 F.Supp.2d
537, 541 (E.D. Pa. 2008) (“Consequently, before
granting a default judgment, the Court must . . . ascertain
whether the unchallenged facts constitute a legitimate cause
of action, since a party in default does not admit mere
conclusions of law.” (citations omitted)). In
conducting this inquiry, “the well-pleaded, factual
allegations of the complaint . . . are accepted as true and
treated as though they were established by proof.”
See E. Elec. Corp. of N.J. v. Shoemaker Const. Co.,
652 F.Supp.2d 599, 605 (E.D. Pa. 2009) (citation omitted).
While the Court must accept as true the well-pleaded factual
allegations of the complaint, the Court need not accept the
moving party's factual allegations or legal conclusions
relating to the amount of damages. See Comdyne I, Inc. v.
Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990).
reviewed the record, including Plaintiffs' complaint,
motion, and supporting brief, the Court finds that entry of
default judgment against Defendant and in favor of Plaintiffs
is appropriate. The Court examines the merits of
Plaintiff's motion by addressing the sufficiency of
Plaintiffs' allegations, the applicability of the
Chamberlain factors, and the propriety of the relief
requested in the complaint.
Sufficiency of Plaintiffs' Allegations
initial matter, the Court observes that Plaintiff's
unchallenged allegations in the complaint, taken as true,
state a legitimate cause of action as to each of the three
counts asserted in the complaint. First, the Court finds such