Gs Holistic Llc V Plaza Linda
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 GS HOLISTIC, LLC, Case No. 2:22-cv-02088-DC-CSK
12 Plaintiff, FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFF’S MOTION FOR
13 v. DEFAULT JUDGMENT
14 SAMIR MOHAMMED ALI SHAREEF,
individually and d/b/a STICKY SMOKE
15 SHOP AND VAPE, (ECF No. 56)
16 Defendant.
17
18 Plaintiff GS Holistic, LLC asserts claims for “Federal Trademark Counterfeiting
19 and Infringement, 15 U.S.C. § 1114” and “Federal False Designation of Origin and Unfair
20 Competition, 15 U.S.C. § 1125(a)” against Defendant Samir Mohammed Ali Shareef
21 iindividually and d/b/a Sticky Smoke Shop and Vape, seeking monetary damages,
22 restitution, an injunction, and other relief. Second Amended Complaint (“SAC”) (ECF No.
23 48). Defendant has not made an appearance in this action, and a Clerk’s Default was
24 entered on January 21, 2025. (ECF No. 51.) Presently pending before the Court is
25 Plaintiff’s motion for default judgment (ECF No. 56), which was taken under submission
26 without argument pursuant to Local Rules 230(c) and (g).1 For the reasons stated below,
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1 This motion is referred to the undersigned pursuant to Local Rule 302(c)(19) and
28 28 U.S.C. § 636(b)(1)(A).
1 the Court recommends Plaintiff’s motion for default judgment be DENIED.
2 I. BACKGROUND
3 A. Factual Background
4 The SAC alleges that since 2020, Plaintiff has marketed and sold glass infusers
5 and related accessories using the well-known “Stündenglass” trademark. SAC ¶ 6.
6 Plaintiff is the rightful owner of three federally registered trademarks: (1) U.S. Trademark
7 Registration Number 6,633,884 for “the standard character mark ‘Stündenglass’ in
8 association with goods further identified in registration in international class 011”;
9 (2) U.S. Trademark Registration Number 6,174,292 for “the design plus words mark ‘S’
10 and its logo in association with goods further identified in the registration in international
11 class 034”; and (3) U.S. Trademark Registration Number 6,174,291 for “the standard
12 character mark ‘Stündenglass’ in association with goods further identified in registration
13 in international class 034.”2 SAC ¶ 10.
14 Plaintiff has used the Stündenglass trademarks in commerce continuously
15 throughout the United States since 2020. SAC ¶ 12. Plaintiff alleges the Stündenglass
16 trademarks are “distinctive to both the consuming public and the Plaintiff’s trade” and
17 that products branded with these trademarks are made from “superior materials” that are
18 “readily apparent to consumers” and “industry professionals.” Id. ¶ 13. Plaintiff alleges
19 the trademarks are exclusive to it and appear clearly on its products, packaging and
20 advertisements and that it has expended substantial time, money, and other resources
21 in developing, advertising, and otherwise promoting and protecting its trademarks.
22 Id. ¶¶ 14, 16. Plaintiff alleges it has 3,000 authorized stores in the United States,
23
24 2 The Nice Agreement establishes a classification of goods and services for the
purposes of registering trademarks and service marks. Class 11 goods include
25
“apparatus and installations for lighting, heating, cooling, steam generating, cooking,
26 drying, ventilating, water supply and sanitary purposes.” Class 34 goods include
“tobacco and tobacco substitutes; cigarettes and cigars; electronic cigarettes and oral
27 vaporizers for smokers; smokers’ articles; matches.” See List of Goods and Services in
Class Order, Nice Classification Index, accessed July 16, 2025, available at
28 https://nclpub.wipo.int/enfr/.
1 including in California, selling its products using the Stündenglass trademarks and
2 reaching a vast array of consumers throughout the country. Id. ¶ 19. Plaintiff alleges its
3 products using the Stündenglass trademarks have a higher sales value than non-
4 Stündenglass branded products and because of this, its products are targeted by
5 counterfeiters. Id. ¶¶ 20-21.
6 The SAC alleges Defendant has, and continues to, offer for sale counterfeit
7 products using the Stündenglass trademarks, including reproductions, counterfeits,
8 copies and/or colorable imitations of one or more of the Stündenglass trademarks,
9 without the consent of Plaintiff. SAC ¶¶ 25-27. Specifically, the SAC alleges that on
10 October 21, 2022, Plaintiff’s investigator “purchased a Glass Infuser with Stündenglass
11 [tradem]arks affixed to it” from Defendant for $350.00 and that “it was a Counterfeit
12 product in that it displayed” the three Stündenglass trademarks. Id. ¶ 30. Plaintiff alleges
13 Defendant’s “Counterfeit Good contained all three of [Plaintiff’s] [trade]marks” and that
14 Defendant’s use of the “Counterfeit [trademarks] is “substantially indistinguishable” or
15 “identical” to Plaintiff’s trademarks. Id. ¶ 31. Plaintiff further alleges Defendant Shareef
16 as an individual “authorized, directed, and/or participated in” Defendant’s “offer for sale,
17 in commerce, of the Counterfeit Goods” and that Defendant Shareef’s “acts were a
18 moving, active, and conscious force behind” Defendant’s infringement of the
19 Stündenglass trademarks. Id. ¶ 33. Plaintiff alleges the use of the counterfeit good
20 “began after the registration of the Stündenglass trademarks” without the consent of
21 Plaintiff. Id. ¶ 34.
22 Plaintiff contends it has suffered losses and damage to the goodwill and
23 reputation of its trademarks because of Defendant’s acts, which “was, and is, likely to
24 cause confusion or to cause mistake and/or deceive consumers who purchase the
25 Counterfeit Goods.” SAC ¶¶ 36-37, 44-46. Plaintiff prays for statutory and treble
26 damages; costs; an order enjoining Defendant’s sale of any counterfeit product using
27 Plaintiff’s Stündenglass trademarks and an order for destruction of products bearing the
28 Stündenglass trademarks; and an accounting and disgorgement of profits/restitution,
1 among other relief. SAC at 14-16.
2 B. Procedural Posture
3 Plaintiff filed a complaint on November 17, 2022, asserting claims against Plaza
4 Linda d/b/a Sticky Smoke Shop and Vape and Jose A. Sepulveda for Federal Trademark
5 Counterfeiting and Infringement, 15 U.S.C. § 1114 and Federal False Designation of
6 Origin and Unfair Competition, 15 U.S.C. § 1125(a). Compl. (ECF No. 1.) On February
7 15, 2023, Plaintiff filed a motion for extension of time to perfect service of Plaza Linda
8 d/b/a Sticky Smoke Shop and Vape and Jose A. Sepulveda with the Complaint, which
9 was granted on February 22, 2023. (ECF Nos. 4, 6.) On April 24, 2023, Plaintiff filed a
10 second motion for extension of time to perfect service of Jose A. Sepulveda with the
11 Complaint, which was granted on May 9, 2023. (ECF Nos. 7, 11.) Plaintiff was warned
12 no further extensions would be granted absent a showing of good cause. (ECF No. 11.)
13 On June 12, 2023, Plaintiff requested the entry of default as to Plaza Linda, which the
14 Clerk of the Court entered on June 13, 2023. (ECF Nos. 13, 14.) On June 14, 2023,
15 Plaintiff requested the entry of default as to Jose A. Sepulveda, which the Clerk of the
16 Court entered on June 15, 2023. (ECF Nos. 15, 16.) After being ordered by the district
17 judge to file a motion for default judgment on June 16, 2023, Plaintiff filed its motion for
18 default judgment. (ECF Nos. 18, 19.) On July 6, 2023, the district judge directed Plaintiff
19 to comply with Local Rules 302(c)(19) and 230(a), and re-notice the motion for default
20 judgment before the assigned magistrate judge. (ECF No. 21.) On July 7, 2023, Plaintiff
21 filed a motion for default judgment before the assigned magistrate judge. (ECF No. 22.)
22 On December 22, 2023, Magistrate Judge Kendall J. Newman denied without
23 prejudice Plaintiff’s motion for default judgment, vacated the defaults entered against
24 each Defendant, and granted Plaintiff an opportunity to file an amended complaint.
25 12/22/2023 Order (ECF No. 26.) Specifically, the December 22, 2023 Order denied
26 Plaintiff’s motion for default judgment for failure to satisfy the second and third Eitel
27 factors because the complaint did not sufficiently allege the elements for Defendants’
28 use of Plaintiff’s trademarks and the likelihood of confusion required to establish claims
1 for trademark infringement and false designation of origin. 12/22/2023 Order at 4-6. On
2 January 15, 2024, Plaintiff filed a First Amended Complaint against Plaza Linda d/b/a
3 Sticky Smoke Shop and Vape and Jose A. Sepulveda alleging the same claims as its
4 initial complaint. (ECF No. 28.)
5 On January 30, 2024, the district judge granted Plaintiff’s motion for extension of
6 time to perfect service on Jose A. Sepulveda. (ECF Nos. 31, 34.) On February 28, 2024,
7 the district judge granted Plaintiff’s second motion for extension of time to perfect service
8 on Plaza Linda d/b/a Sticky Smoke Shop and Vape and Jose A. Sepulveda. (ECF Nos.
9 38, 39.) On April 23, 2024, the district judge granted Plaintiff’s third motion for extension
10 of time to perfect service on Jose A. Sepulveda. (ECF Nos. 42, 43.) On June 7, 2024,
11 Plaintiff filed a motion to amend the complaint pursuant to Federal Rules of Civil
12 Procedure 15. (ECF No. 44.) On August 22, 2024, the district judge granted Plaintiff’s
13 motion to amend and ordered Plaintiff to file an amended complaint within seven (7)
14 days of the filed date of the order. (ECF No. 47.) On the same day, Plaintiff filed the
15 operative Second Amended Complaint against Defendant Samir Mohammed Ali Shareef
16 individually and d/b/a Sticky Smoke Shop and Vape, asserting the same claims as the
17 prior complaints. See SAC (ECF No. 48). On January 27, 2025, Plaintiff requested entry
18 of default as to Defendant Shareef, which was entered by the Clerk of the Court on
19 January 28, 2025. (ECF Nos. 52, 53.)
20 On February 4, 2025, Plaintiff filed its second motion for default judgment. (ECF
21 No. 54.) On February 5, 2025, the district judge directed Plaintiff to comply with Local
22 Rules 302(c)(19) and 230(a), and re-notice the motion for default judgment before the
23 undersigned. (ECF No. 55.) On the same day, Plaintiff filed the pending motion for
24 default judgment. Pl. Second Mot. (ECF No. 56). Defendant was served with the motion
25 for default judgment on the same day, on February 5, 2025. Pl. Second Mot. at 22. A
26 hearing was set on the motion before the undersigned and later reset on the Court’s own
27 motion for April 1, 2025. (ECF Nos. 56, 57.) Defendant did not respond to the motion for
28 default judgment. See Docket. On March 20, 2025, the undersigned issued an order
1 taking Plaintiff’s motion under submission; vacating the hearing; ordering a written
2 response from Defendant by April 3, 2025; and directing Plaintiff to serve Defendant with
3 a copy of the order. (ECF No. 58.) Plaintiff did not file a proof of service that Plaintiff had
4 served Defendant with a copy of the 3/20/202 Order. See Docket. Defendant did not
5 respond. Id.
6 II. LEGAL STANDARDS
7 Under Federal Rule of Civil Procedure 55, default may be entered against a party
8 against whom a judgment for affirmative relief is sought who fails to plead or otherwise
9 defend against the action. See Fed. R. Civ. P. 55(a). However, this default does not
10 automatically entitle the plaintiff to a judgment. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.
11 Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citations omitted). The decision to grant or deny
12 the entry of default judgment is within the district court’s discretion. NewGen, LLC v.
13 Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016).
14 In determining whether to enter default judgment, courts consider the following
15 factors:
16 1. the possibility of prejudice to the plaintiff;
17 2. the merits of the substantive claim(s);
18 3. the sufficiency of the complaint;
19 4. the amount of money at stake in the lawsuit;
20 5. whether there are any disputes of material fact;
21 6. whether the defendant’s default was due to excusable neglect; and
22 7. the strong policy favoring decisions on the merits.
23 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The Ninth Circuit has long
24 disfavored default judgments, counseling that cases be decided on the merits “whenever
25 reasonably possible.” Id. at 1472.
26 Once a default is entered, all well-pled allegations in the complaint regarding
27 liability are deemed true. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir.
28 2002). “On the other hand, a defendant is not held to admit facts that are not well-
1 pleaded or to admit conclusions of law.” United States v. Cathcart, 2010 WL 1048829, at
2 *4 (N.D. Cal. Feb. 12, 2010) (citation omitted). “[I]t follows from this that facts which are
3 not established by the pleadings of the prevailing party, or claims which are not well-
4 pleaded, are not binding and cannot support the judgment.” Danning v. Lavine, 572 F.2d
5 1386, 1388 (9th Cir. 1978). Necessary facts not contained in the pleadings and claims
6 which are legally insufficient are not established by default. DIRECTV, Inc. v. Hoa
7 Huynh, 503 F.3d 847, 854 (9th Cir. 2007). Further, a plaintiff’s allegations regarding
8 damages are not deemed true at default, and the plaintiff bears the burden to prove
9 damages with evidence. See Fed. R. Civ. P. 55(b)(2)(C); Geddes v. United Fin. Grp.,
10 559 F.2d 557, 560 (9th Cir. 1977).
11 III. DISCUSSION
12 A. Jurisdiction
13 When default judgment is sought, the “district court has an affirmative duty to look
14 into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707,
15 712 (9th Cir. 1999) (citations omitted). The Court has subject matter jurisdiction over this
16 action pursuant to 28 U.S.C. § 1331 because it arises under federal trademark law,
17 15 U.S.C. § 1051, et seq. In addition, the Court has personal jurisdiction over Defendant
18 Shareef, who is alleged to be a California resident (SAC ¶ 5). The Court’s jurisdiction
19 analysis is not a finding that the claims are sufficiently pled.
20 B. Default Judgment
21 1. Service of Complaint
22 In reviewing a motion for default judgment, the Court must determine whether
23 Defendant Shareef was properly served with the summons and complaint. Fed. R. Civ.
24 P. 4(c). Rule 4(e) of the Federal Rules of Civil Procedures allows for service of an
25 individual by “delivering a copy of the summons and of the complaint to the individual
26 personally.” Fed. R. Civ. P. 4(e)(2)(A). On October 30, 2024, a third-party process server
27 personally served Defendant Shareef with the SAC and summons. (ECF No. 51.)
28 / / /
1 2. Eitel Factors
2 For the following reasons, the Court finds that the Eitel factors weigh against
3 granting default judgment against Defendant. Specifically, the Court finds the SAC is
4 deficient in several respects and fails to state a claim under the second and third Eitel
5 factors. Moreover, Plaintiff has failed to cure the deficiencies identified in the December
6 22, 2023 Order wherein Plaintiff failed to sufficiently establish Defendants’ use of
7 Plaintiff’s trademarks and the likelihood of confusion elements required to establish
8 claims for trademark infringement and false designation of origin. 12/22/2023 Order at 4-
9 6.
10 The second and third Eitel factors, which are often analyzed together, consider
11 the substantive merits of a plaintiff's claim and the sufficiency of its pleadings. PepsiCo,
12 Inc., 238 F. Supp. 2d at 1175. The issue on default judgment is “whether the allegations
13 in the complaint are sufficient to state a claim on which the [plaintiff] may recover.”
14 Danning, 572 F.2d at 1388. In reviewing a default judgment, a court must take the well-
15 pleaded factual allegations of the complaint as true. Cripps v. Life Ins. Co. of N. Am., 980
16 F.2d 1261, 1267 (9th Cir. 1992). “However, necessary facts not contained in the
17 pleadings, and claims which are legally insufficient, are not established by default.” Id.
18 Plaintiff asserts two claims in this action: (1) trademark counterfeiting and
19 infringement under 15 U.S.C. § 1114, and (2) false designation of origin and unfair
20 competition under 15 U.S.C. § 1125(a). SAC at 12-14. The Court addresses each in
21 turn.
22 a) Trademark Infringement and Counterfeiting
23 To state a claim for trademark infringement, a plaintiff must adequately allege it is
24 the owner of a valid, protectable mark, and the alleged infringer is using a similar mark
25 that is likely to confuse. See Grocery Outlet Inc. v. Albertson’s Inc., 497 F.3d 949, 951
26 (9th Cir. 2007). Courts determine the likelihood of confusion by considering: (1) the
27 strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) the
28 evidence of actual confusion; (5) the marketing channels used; (6) the type of goods and
1 degree of care consumers are likely to exercise in purchasing them; (7) the intent of the
2 defendant in selecting the mark; and (8) the likelihood that the parties will expand their
3 product lines. Lodestar Anstalt v. Bacardi & Co. Ltd., 31 F.4th 1228, 1252 (9th Cir. 2022)
4 (citing AMF Incorporated v. Sleekcraft Boats, 599 F.2d 341, 348-54 (9th Cir. 1979),
5 abrogated on other grounds by Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792
6 (9th Cir. 2003)). When analyzing a claim brought under a counterfeiting theory, courts
7 need not engage in a likelihood of confusion analysis because a defendant who
8 “deliberately copies the dress of his competitors already in the field…raises a
9 presumption that customers will be deceived.” Louis Vuitton Malletier, S.A. v. Akanoc
10 Sols., Inc., 658 F.3d 936, 946 (9th Cir. 2011) (citations omitted). Instead, courts examine
11 whether the defendant used a non-genuine mark identical to or substantially
12 indistinguishable from the plaintiff’s registered, genuine mark, and the genuine mark was
13 registered for use on the same goods to which the infringer applied the non-genuine
14 mark. Id.
15 First, the SAC adequately alleges the existence of one or more valid trademarks
16 to support Plaintiff’s claim for trademark infringement and counterfeiting. The SAC
17 alleges Plaintiff owns the following three registered trademarks: (1) U.S. Trademark
18 Registration Number 6,633,884 for “the standard character mark ‘Stündenglass’ in
19 association with goods further identified in registration in international class 011”;
20 (2) U.S. Trademark Registration Number 6,174,292 for “the design plus words mark ‘S’
21 and its logo in association with goods further identified in the registration in international
22 class 034”; and (3) U.S. Trademark Registration Number 6,174,291 for “the standard
23 character mark ‘Stündenglass’ in association with goods further identified in registration
24 in international class 034.” SAC ¶ 10. Registration of a mark on the Principal Register in
25 the Patent and Trademark Office constitutes prima facie evidence of the validity of the
26 registered mark. Applied Info. Scis. Corp. v. eBAY, Inc., 511 F.3d 966, 970 (9th Cir.
27 2007). However, even accepting all well-pled factual allegations as true as required for
28 default judgment motions, the SAC does not allege sufficient facts to support plausible
1 allegations that Defendant used Plaintiff’s trademarks in an infringing or counterfeiting
2 manner.
3 Second, despite being expressly warned that its prior complaint was deficient, the
4 SAC continues to be deficient and lacks sufficient factual allegations to plausibly
5 conclude Defendants used Plaintiff’s trademarks. See 12/22/2023 Order; see also GS
6 Holistic, LLC v. J’s Smoke Shop, 2024 WL 1054899, at *2 (E.D. Cal. Mar. 11, 2024)
7 (denying motion for default judgment where, among other things, plaintiff failed to specify
8 which of its three trademarks was used); GS Holistic, LLC v. Pudasaini, 2024 WL
9 710890, at *4 (N.D. Cal. Feb. 21, 2024) (same); GS Holistic, LLC v. Bubbles Smoke
10 Shop, 2023 WL 6787773, at *3 (C.D. Cal. Sept. 5, 2023) (same). The SAC states that on
11 October 21, 2022, Plaintiff’s investigator “observed that [Defendant’s location] had an
12 excess of Glass Infusers which displayed the Stündenglass Trademarks” and that the
13 “investigator purchased a Glass Infuser with a Stündenglass Marks affixed to it, from
14 [Defendant Shareef], for a cost of $350.00[.]” SAC ¶ 30. Although Plaintiff alleges that all
15 three trademarks were applied to the glass infuser purchased at Defendant’s store, and
16 includes photographs of these trademarks, Plaintiff fails to address how one single
17 product could infringe on two different international classes of goods. While Plaintiff’s
18 motion provides that Defendant’s glass infuser includes all three trademarks and that
19 “Plaintiff’s products are both glass infusers” that can be “used either for smoking
20 purposes or infusing foods and drinks” this does not adequately address how all three
21 trademarks are on Defendant’s single product. Pl. Second Mot. at 11. In addition, review
22 of the photographs attached to the SAC indicates Defendant’s product is utilized for
23 smoking and does not indicate it can be used as a food and beverage infuser. See SAC
24 (ECF No. 48-2). Plaintiff also does not address this discrepancy, which is problematic
25 given Plaintiff seeks damages for infringement as to all three trademarks. Thus, the SAC
26 is deficient for lack of necessary facts. See DIRECTV, 503 F.3d at 854; see also GS
27 Holistic, LLC v. J’s Smoke Shop, 2024 WL 1054899, at *2 (denying motion for default
28 judgment where, among other things, plaintiff failed to specify which of its three
1 trademarks was used); GS Holistic, LLC v. Pudasaini, 2024 WL 710890, at *4 (same);
2 GS Holistic, LLC v. Bubbles Smoke Shop, 2023 WL 6787773, at *3 (same).
3 Third, the SAC alleges Plaintiff’s investigator purchased a glass infuser with
4 Stündenglass trademarks “affixed to it” from Defendant and that “it was a Counterfeit
5 product in that it displayed the Infringing Marks [].” SAC ¶ 30. As pled, the SAC is vague
6 and conclusory as to the process Plaintiff’s investigator undertook to confirm the
7 similarities in the trademarks and does not clarify, as other courts have noted, whether
8 Defendant is merely reselling Plaintiff’s products and therefore not a counterfeit product,
9 which would not constitute an infringement. See GS Holistic, LLC v. Ravens Smoke
10 Shop, Inc., 2023 WL 5504964, at *5 (citing NEC Electronics v. CAL Circuit Abco, 810
11 F.2d 1506, 1509 (9th Cir. 1987) (noting that the sale of a genuine trademarked product
12 by an unauthorized seller is not a violation of the Lanham Act)); see also GS Holistic,
13 LLC v. Bubbles Smoke Shop, 2023 WL 6787773, at *5 (same). Further, mere assertions
14 that the glass infuser sold by Defendant is “a Counterfeit product in that it displayed the
15 Infringing Marks” are conclusory and not taken as true. See Paulsen v. CNF Inc., 559
16 F.3d 1061, 1071 (9th Cir. 2009) (the court is not required to accept as true legal
17 conclusions in a complaint “merely because they are cast in the form of factual
18 allegations”); see also GS Holistic, LLC v. Cigarette Outlet Smoke Shop, 2024 WL
19 519783, at *2 (E.D. Cal. Feb. 9, 2024) (denying plaintiff’s motion for default judgment for,
20 among other reasons, the complaint’s reliance on conclusory statements that “the Glass
21 Infuser [defendant] sold to Plaintiff’s investigator was a Counterfeit Good with an
22 Infringing Mark affixed to it”).
23 Fourth, although the SAC alleges Defendant’s “use of the counterfeit
24 Stündenglass Trademarks began after the registration of the Stündenglass Trademarks”
25 (SAC ¶ 34), it does not allege when this use allegedly began—much less provide any
26 other details about Defendant’s allegedly infringing actions. The Court cannot supply
27 necessary facts that are omitted from the SAC. See DIRECTV, 503 F.3d at 854; see also
28 GS Holistic, LLC v. Puff+ LLC, 2024 WL 659362, at *3 (E.D. Cal. Feb. 16, 2024)
1 (rejecting plaintiff’s default judgment motion where the complaint lacked details regarding
2 the defendant’s alleged use where only one instance was alleged); GS Holistic, LLC v.
3 Ashes Plus Nine, 2023 WL 5993055, at *4 (N.D. Cal. Aug. 25, 2023) (same).
4 Fifth, the SAC does not allege sufficient facts to support a plausible claim for
5 infringement as to a consumer’s likelihood of confusion. The SAC makes conclusory
6 allegations stating that Defendant “used images and names identical to or confusingly
7 similar to the Stündenglass Marks, to confuse customers and aid in the promotion and
8 sales of Counterfeit Goods”, the “Infringing Goods travel in identical channels of trade
9 and are sold to identical consumers as Stündenglass genuine goods”, and that the
10 “Infringing Marks affixed to the Counterfeit Goods that [Defendant] has distributed,
11 provided, marketed, advertised, promoted, offered for sale, and/or sold, is confusingly
12 identical or similar to the Stündenglass Marks that [Plaintiff] affixes to its Glass Infusers.”
13 SAC ¶¶ 38-40. Such conclusory allegations lacking in factual support are insufficient for
14 purposes of default judgment. See Paulsen, 559 F.3d at 1071; DIRECTV, 503 F.3d at
15 854; see also GS Holistic, LLC v. Bubbles Smoke Shop, 2023 WL 6787773, at *4
16 (denying default judgment because the complaint failed to allege facts supporting a
17 Sleekcraft analysis and relied on conclusory statements about the likelihood of
18 confusion). While Plaintiff’s motion makes passing reference to the Sleekcraft factors
19 and provides photographs (see Pl. Second Mot. at 10 and ECF No. 56-8), like many
20 other cases that have been brought by Plaintiff, there is no effort to apply the applicable
21 legal standards to this case.
22 Finally, as to the alleged sale of a counterfeit good, the SAC fails to state a claim
23 because it does not adequately allege that Defendant sold a counterfeit product. Instead,
24 the SAC relies on wholly conclusory allegations, such as allegations that Defendant’s
25 glass diffuser “was a Counterfeit product in that it displayed the Infringing Marks.” SAC
26 ¶ 30. Nor does the SAC explain the types of goods Defendant has sold in the past, other
27 than one glass infuser sold to Plaintiff’s investigator on October 21, 2022. Id. Thus, the
28 SAC is deficient on Plaintiff’s counterfeit theory as well. See GS Holistic, LLC v. J’s
1 Smoke Shop, 2024 WL 1054899, at *2 (rejecting counterfeit theory on default judgment
2 motion because of the complaint’s failure to allege facts supporting the claim and
3 otherwise reliance on conclusory assertions that defendant’s goods were counterfeit).
4 b) False Designation of Origin and Unfair Competition
5 To establish a claim for false designation of origin under 15 U.S.C. § 1125(a), a
6 plaintiff must show the defendant used a false designation of origin in interstate
7 commerce that is likely to cause confusion, mistake, or deception as to the origin,
8 sponsorship, or approval of defendants’ goods or services. Freecycle Network, Inc. v.
9 Oey, 505 F.3d 898, 902 (9th Cir. 2007). Claims for false designation of origin, as a type
10 of unfair competition claim, are analyzed similarly to infringement claims because the
11 “ultimate test” for these claims are the same: the public’s likelihood of confusion. Jada
12 Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 632 (9th Cir. 2008) (using the same likelihood of
13 confusion test to analyze trademark infringement and false designation of origin claims);
14 see also Brookfield Commc’ns, Inc. v. W. Coast Ent. Corp., 174 F.3d 1036, 1046 (9th
15 Cir. 1999) (considering false designation of origin claim as one of “unfair competition”);
16 Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111, 1122-23
17 (6th Cir. 1996) (“[F]alse designation is simply a species of unfair competition.”) (citing
18 McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 923 (Fed. Cir. 1995)).
19 Here, the Court has already determined the SAC is deficient on the likelihood of
20 confusion element for the infringement claim. Plaintiff relies on the exact same
21 allegations for its false designation of origin claim. Pl. Second Mot. at 10-11. Thus, the
22 result is the same for the false designation of origin claim brought under 15 U.S.C.
23 § 1125(a). See Jada, 518 F.3d at 632; see also GS Holistic, LLC v. J’s Smoke Shop,
24 2024 WL 1054899, at *3 (denying default judgment motion on plaintiff’s false designation
25 claim on the same grounds as on the infringement claim—for failure of the complaint to
26 state sufficient claims and failure on the merits); GS Holistic, LLC v. Puff N Go Gift Shop
27 LLC, 2023 WL 4146232, at *5 (N.D. Cal. June 22, 2023) (same).
28 For the foregoing reasons, Plaintiff has failed to establish the second and third
1 Eitel Factors and its motion for default judgment should be denied for failure to state a
2 claim under 15 U.S.C. §§ 1114 and 1125(a).
3 C. Federal Actions Related to Plaintiff’s Stündenglass Trademarks
4 Plaintiff has brought many similar, if not identical, claims about its Stündenglass
5 trademarks against other defendants. See GS Holistic, LLC v. Mr Vape Smoke Shop,
6 2024 WL 4545885, at *3 (E.D. Cal. Oct. 22, 2024) (collecting cases). Numerous courts in
7 the Ninth Circuit have found vague and conclusory allegations made by Plaintiff to be
8 insufficient to grant default judgment. See GS Holistic, LLC v. Puff+ LLC, 2024 WL
9 659362, at *3 (collecting cases where motion for default judgment was denied due to GS
10 Holistic’s wholly insufficient pleadings and motion); GS Holistic, LLC v. Kings
11 Smokeshop, 2024 WL 150217, at *2 (E.D. Cal. Jan. 12, 2024) (denying motion for
12 default judgment because the complaint “has not satisfied the second and third Eitel
13 factors; i.e., the merits of plaintiff’s substantive claim and the sufficiency of the
14 complaint”); GS Holistic, LLC v. Ashes Plus Nine, 2023 WL 5993055, at *5 (“[T]his Court
15 and other district courts in this Circuit have found similar (if not almost identical)
16 allegations by GS Holistic equally insufficient”); GS Holistic, LLC v. Ravens Smoke
17 Shop, Inc., 2023 WL 5504964, at *4 (C.D. Cal. July 10, 2023) (“As currently pled, these
18 factual allegations are vague and conclusory, and need not be accepted as true.”); GS
19 Holistic, LLC v. Alien Smoke Shop, 2023 WL 3402589, at *1 (C.D. Cal. Mar. 17, 2023)
20 (“Plaintiff’s allegations of infringement here are insufficient to support a finding that
21 defendants willfully infringed plaintiff’s trademarks”).
22 The undersigned is aware that other courts—including those in this district—have
23 granted motions for default judgment on substantially similar complaints and motions
24 filed by this Plaintiff. See GS Holistic, LLC v. AA 110, 2024 WL 2848455, at *7 (E.D. Cal.
25 June 5, 2024) (granting motion for default judgment in part, but limiting damages to
26 $5,000), report and recommendation adopted sub nom. 2024 WL 3396380 (E.D. Cal.
27 July 12, 2024); GS Holistic, LLC v. Nasher, 2024 WL 1994702, at *1 (E.D. Cal. May 6,
28 2024) (same); GS Holistic, LLC v. Habib’s Disc., 2023 WL 8644103, at *7 (E.D. Cal. Dec.
1 14, 2023) (granting motion for default and awarding $75,000 in damages), report and
2 recommendation adopted sub nom. 2024 WL 495139 (E.D. Cal. Feb. 8, 2024). The
3 undersigned respectfully disagrees, and follows the approach of the many courts that
4 have denied similar motions for default judgment brought by GS Holistic. See, e.g., GS
5 Holistic, LLC v. Puff+ LLC, 2024 WL 659362, at *3; GS Holistic, LLC v. Kings
6 Smokeshop, 2024 WL 150217, at *2; GS Holistic, LLC v. Ashes Plus Nine, 2023 WL
7 5993055, at *5; GS Holistic, LLC v. Ravens Smoke Shop, Inc., 2023 WL 5504964, at *4;
8 GS Holistic, LLC v. Alien Smoke Shop, 2023 WL 3402589, at *1.
9 D. Failure to State a Claim
10 District courts have discretion whether to enter a default judgment. Aldabe v.
11 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Where a complaint fails to state a claim,
12 default judgment may not be entered. See Aldabe, 616 F.2d at 1092 (affirming the
13 district court’s denial of default judgment where plaintiff’s claims lacked merit); DirecTV,
14 Inc., 503 F.3d at 854-56 (holding “[t]he district court properly refused to grant default
15 judgment” where a plaintiff’s complaint was not well-pleaded and instead provided only
16 “legal conclusions” that were “not held to have admitted through default.”). Accordingly,
17 because Plaintiff has failed to state a claim as to trademark counterfeiting and
18 infringement under 15 U.S.C. § 1114, and false designation of origin and unfair
19 competition under 15 U.S.C. § 1125(a), the Court recommends default judgment be
20 DENIED.
21 E. Dismissal without Leave to Amend
22 Plaintiff has failed to cure the deficiencies of its claims despite being informed of
23 the deficiencies and being provided ample opportunity to do so. See 12/22/2023 Order.
24 Accordingly, the Court finds further amendment would be futile. See Zucco Partners,
25 LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (affirming district court’s
26 dismissal with prejudice “where the plaintiff has previously been granted leave to amend
27 and has subsequently failed to add the requisite particularity to its claims, ‘the district
28 court’s discretion to deny leave to amend is particularly broad.’“). Here, Plaintiff’s SAC
1 | continues to rely on conclusory allegations that are insufficient to state a claim despite
2 || awareness of the applicable legal standards and deficiencies in its prior pleading.
3 || Therefore, the Court recommends Plaintiffs SAC be DISMISSED without leave to
4 | amend.
5 | IV. CONCLUSION
6 For the reasons set forth above, it is HEREBY RECOMMENDED that:
7 1. Plaintiff's motion for default judgment (ECF No. 56) be DENIED;
8 2. The Second Amended Complaint (ECF No. 48) be DISMISSED without leave
9 to amend; and
10 3. The Clerk of the Court be directed to close this action.
11 These findings and recommendations are submitted to the United States District
12 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
13 | 14 days after being served with these findings and recommendations, any party may file
14 | written objections with the Court and serve a copy on all parties. This document should
15 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any
16 || reply to the objections shall be served on all parties and filed with the Court within 14
17 || days after service of the objections. Failure to file objections within the specified time
18 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449,
19 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
20
34 Dated: July 21, 2025 (i s \C
99 GHI 500 KIM
UNITED STATES MAGISTRATE JUDGE
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