Tammy Taylor Nails, Inc. v. Viljoen

Opinion

1 2 3 4 5 6 7 10 11 TAMMY TAYLOR NAILS, INC., Case No. 24-cv-0624-BAS-DTF

12 Plaintiff, ORDER 13 v. 1. GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR TAMMY TAYLOR GLOBAL 15 DEFAULT JUDGMENT (ECF FRANCHISING, and DOES 1 No. 17), AND 16 THROUGH 10, 2. GRANTING MOTION TO 17 Defendants. SEAL (ECF No. 24)

19 Plaintiff, a California corporation focused on nail care products and service, brought 20 suit against Defendants for various trademark infringement and breach of contract claims. 21 After Defendants failed to respond or otherwise appear in the case, Plaintiff moved for 22 default judgment, (ECF No. 17), and moved to seal portions of the exhibits to its motion, 23 (ECF No. 24). For the following reasons, the Motion for Default Judgment is GRANTED 24 IN PART and DENIED IN PART, and Plaintiff’s Motion to Seal is GRANTED. 26 Plaintiff Tammy Taylor Nails (“TTN” or “Plaintiff”) is a California corporation that 27 “manufactures and sells high quality, beautiful nail and skincare products that are designed 28 to last.” (ECF No. 5 ¶¶ 5, 10.) The business was founded in 1981 and has numerous 1 trademarks registered in the United States and South Africa. (/d. 9] 10-11.) It was named 2 its creator and owner, Tammy Taylor. (/d. { 10.) 3 TTN owns various common-law trademark rights in the United States, including a 4 ||trademark for a stylized oval double “T” mark (“Oval Double T Mark’’) (see below). (/d. 5 9 22.) 6 7 8 9 10 11 TTN’s U.S. common-law Oval Double T Mark 12 || TTN has used this Oval Double T Mark in the United States continuously in advertising 13 on products since 2011. Ud. § 22.) 14 TTN also owns a stylized mark in South Africa (“the South African Mark”), which 15 registered as a mark for several products, including nail care products as well as online 16 wholesale store service for nail care products. (/d. J] 18-20; id., Exs. G-I.) 17 TTN also owns several registered word marks in the United States (collectively, “the 18 ||U.S. Registered Marks”) for nail care products and services as well as retail, online retail 19 ||and wholesale store services featuring nail care preparation and products. (See id., Ex. A 20 (containing the U.S. registration for the word mark “TAMMY TAYLOR” for nail care 21 || products); see also id., Ex. B (containing the U.S. registration for the word mark “TAMMY 22 || TAYLOR” for manicure services, nail care services, and pedicure services); see also id., 23 || Ex. C (containing the U.S. registration for the word mark “TAMMY TAYLOR?” for retail, 24 || online retail and wholesale store services featuring nail care preparation and products); see 25 || also id., Ex. D (containing the U.S. registration for the word mark “TAMMY TAYLOR 26 || NAILS” for retail, and wholesale store services featuring cosmetics, nail products, and 27 || body and hair care products).) TTN first used the U.S. Registered Marks in commerce in 28 ~_9_

1 the United States in 1985. (Id. ¶ 23.) In all cases, TTN’s use of its various registered 2 trademarks preceded Defendants’ use of them. (Id.) 3 In April 2017, TTN entered into an International Distribution Agreement (the 4 “Distribution Agreement”) with two of the defendants: Melany and Peet Viljoen 5 (“the Viljoens”). (Id. ¶¶ 10, 27; id., Ex. J.) The Distribution Agreement granted the 6 Viljoens the right to distribute TTN products in Australia and Africa. (Id. ¶ 27; id., Ex. J.) 7 With this, the Viljoens gained the limited ability to use TTN’s trademarks “solely in 8 connection with the promotion, advertising, and distribution of the Products” within these 9 designated regions and for the period of the Distribution Agreement. (Id. ¶¶ 27–28 (quoting 10 id., Ex. J).) An additional clause stated that upon termination of the Distribution 11 Agreement, the Viljoens would not be permitted to continue using any of TTN’s marks. 12 (Id. ¶ 29; id., Ex. J.) 13 A year and a half after entering into the Distribution Agreement, TTN entered into 14 a Master License Agreement (the “License Agreement”) with the Viljoens, giving them 15 rights to use TTN’s U.S. Registered Marks (as well as other related trademarks) and TTN’s 16 system for operating nail salons so the Viljoens could open nail salons in Africa under the 17 Tammy Taylor Nails name. (Id. ¶¶ 10, 30; id., Ex. K.) The License Agreement also 18 required the Viljoens to acknowledge that TTN owned the trademarks, including the U.S. 19 Registered Marks and the Oval Double T Mark. (Id. ¶ 31; id., Ex. K.) Like the Distribution 20 Agreement, the License Agreement revoked the Viljoens’ rights, and any sublicenses they 21 had granted, whenever the License Agreement was terminated. (Id. ¶ 32; id., Ex. K.) After 22 TTN and the Viljoens entered into this License Agreement, though, their business 23 relationship quickly disintegrated. By April 2022, TTN had terminated both the License 24 and the Distribution Agreements (collectively, “the Agreements”), effectively terminating 25 the Viljoens’ rights under the Agreements. (Id. ¶ 33.) 26 Since concluding the relationship between TTN and the Viljoens, the Viljoens 27 “continue to hold themselves out as ‘Tammy Taylor Nails’ and sell nail products under the 28 TTN name and trademarks—all without TTN’s authorization.” (Id. ¶¶ 10, 34.) Last year, 1 the Viljoens escalated their infringement by starting the defendant entity, Tammy Taylor 2 Global Franchising, “to sell purported franchises bearing the Tammy Taylor name and 3 purported products,” all without TTN’s authorization, infringing on TTN’s name and 4 trademarks, and breaching both the Distribution and License Agreements. (Id. ¶¶ 8, 10, 5 35.) Defendants have advertised Tammy Taylor Global Franchising with a billboard in 6 Times Square and by offering global franchises on their website 7 https://tammytaylornails.org.za (the “Website”). (Id. ¶ 35; see also ECF No. 20, Ex. 28 at 8 145 (showing a website, registered to Tammy Taylor Global Franchising, offers an 9 opportunity to “OWN A FRANCHISE”.)) In addition to selling “Tammy Taylor” 10 franchises, Defendants are selling nail products that are inferior to TTN’s products but 11 improperly bear the TTN marks. (ECF No. 5 ¶ 42.) 12 While TTN is a California corporation with its principal place of business in 13 California (Id. ¶ 5), the two individual defendants, Melany and Peet Viljoen, are each 14 domiciled in South Africa, and Tammy Taylor Global Franchising is an entity formed in 15 South Africa with its principal place of business located there (Id. ¶¶ 6–8). 16 Plaintiff filed its Complaint on April 2, 2024, and then filed its First Amended 17 Complaint (“FAC”) on April 22, 2024. (ECF Nos. 1, 5.) Plaintiff attempted service on May 18 16, 2024. (ECF Nos. 6–8.) On June 24, 2025, the Clerk entered default against Defendants. 19 (ECF No. 10.) Plaintiff now seeks default judgment against Defendants. (ECF No. 17.) The 20 Court then requested and received supplemental briefing on personal jurisdiction. (ECF 21 Nos. 21–22, 26.) 23 Along with its Motion for Default Judgment, Plaintiff submitted a Request for 24 Judicial Notice. (ECF No. 17-40.) Plaintiff requests the Court take judicial notice of the 25 Viljoens’ Application for Trademark, Serial Number 97806785, which ultimately is 26 registered at U.S. Registration No. 7,322,502, (ECF No. 20, Ex. 36), and of the trademark 27 registration certificate from the United States Patent and Trademark Office for Registration 28 No. 7,322,502, (ECF No. 20, Ex. 37). 1 Under Federal Rule of Evidence 201, “[a] judicially noticed fact must be one not 2 subject to reasonable dispute in that it is either (1) generally known within the territorial 3 jurisdiction of the trial court or (2) capable of accurate and ready determination by resort 4 to sources whose accuracy cannot reasonably be questioned.” Materials in the online files 5 of the United States Patent and Trademark Office and other matters of public record are 6 proper subjects of judicial notice. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 7 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of 8 public record.” (citation omitted)). The Court therefore takes judicial notice of Exhibits 36 9 and 37 to the Motion for Default Judgment. 11 Plaintiff seeks to seal limited portions of two exhibits attached to its Motion for 12 Default Judgment. (See ECF No. 24 (seeking to seal portions of Exhibit 11 to Karl J. 13 Schulze’s Declaration and Exhibit 38 to Patrick W. Kelly’s Declaration).)1 14 When it comes to court records, courts adhere to a strong presumption in favor of 15 public access. See, e.g., Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (“[T]he 16 courts of this country recognize a general right to inspect and copy public records and 17 documents, including judicial records and documents.” (citation omitted)); see also 18 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (“Unless a 19 particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in favor of 20 access’ is the starting point.”); see also Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 21 F.3d 1092, 1096 (9th Cir. 2016) (“The presumption of access is based on the need for 22 federal courts, although independent . . . to have a measure of accountability and for the 23 public to have confidence in the administration of justice.” (citation omitted)). 24 Thus, a party seeking to seal a judicial record bears the burden of overcoming this 25 strong presumption of access. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 26 (9th Cir. 2003). The heft of that burden depends on the type of motion tied to the documents 27 1 Plaintiff neglected to withdraw its initial Motion to Seal. (ECF No. 23.) The Court therefore 28 1 sought to be sealed. When the related information is more than “tangentially related to the 2 merits of the case,” the more rigorous “compelling reasons” standard applies. Chrysler, 3 809 F.3d at 1096–98, 1102. If the related information is not more than tangentially related 4 to the merits of the case, the more relaxed “good cause” standard applies. Id. at 1096–98. 5 A motion for default judgment is more than “tangentially related to the merits of the 6 case,” and therefore the more rigorous “compelling reasons” standard applies. Chrysler, 7 809 F.3d at 1096–98, 1102. Plaintiff cites both attorney-client privilege and confidential 8 customer information as reasons for the tailored redactions in the two exhibits. (ECF No. 9 23 at 5–7.) Each of these rationales constitutes a compelling reason to seal information. 10 Hanson v. Wells Fargo Home Mortg., Inc., No. C13-0939JLR, 2013 WL 5674997, at *3 11 (W.D. Wash. Oct. 17, 2013) (collecting cases where courts found attorney-client privilege 12 presents a compelling reason for sealing); see also In re Elec. Arts, Inc., 298 F. App’x 568, 13 569 (9th Cir. 2008) (holding that confidential customer information meets the compelling 14 reason standard for sealing). Accordingly, Plaintiff’s Motion to Seal is granted. (ECF No. 15 24.) 17 Generally, after entry of default, a party is entitled to apply to the court for default 18 judgment when a party has failed to plead or defend. Fed. R. Civ. P. 55(b)(2). Upon entry 19 of default, the factual allegations in a plaintiff’s complaint, except those relating to 20 damages, are deemed admitted. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 21 (9th Cir. 1987) (citation omitted). 22 When ruling on a motion for default judgment, “a district court has an affirmative 23 duty to look into its jurisdiction over both the subject matter and the parties” given that “[a] 24 judgment entered without personal jurisdiction over the parties is void.” In re Tuli, 172 25 F.3d 707, 712 (9th Cir. 1999). “The Court is also required to assess the adequacy of the 26 service of process on the party against whom default is requested.” DFSB Kollective Co. 27 v. Bourne, 897 F. Supp. 2d 871, 877 (N.D. Cal. 2012) (citation omitted). 28 1 Once the court has satisfied itself as to the procedural considerations and 2 jurisdiction, entry of default judgment is within the trial court’s discretion. Aldabe v. 3 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In exercising this discretion, the Court 4 considers the following factors: (1) the possibility of prejudice to the plaintiff, (2) the merits 5 of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money 6 at stake in the action, (5) the possibility of a dispute concerning the material facts, (6) 7 whether the default was due to excusable neglect, and (7) the strong policy underlying the 8 Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 9 F.2d 1470, 1471–72 (9th Cir. 1986). 10 A. Procedural Considerations 11 As an initial matter, Plaintiff has appropriately obtained entry of default against 12 Defendants. Pursuant to Federal Rule of Civil Procedure (“Rule”) 55(a), the Clerk of the 13 Court correctly entered default against Defendants because they have not appeared in the 14 case. (ECF No. 10.) Thus, the Court, in its discretion, may order a default judgment after 15 confirming jurisdiction and balancing the Eitel factors. 16 1. Subject-Matter Jurisdiction 17 As to jurisdiction, federal subject-matter jurisdiction may exist due to the presence 18 of a federal question, 28 U.S.C. § 1331, complete diversity between the parties, 28 U.S.C. 19 § 1332, or supplemental jurisdiction, 28 U.S.C. § 1367(a). Plaintiff alleges several claims 20 under federal law, including the Lanham Act. (ECF No. 5 ¶ 1.) “When federal law applies 21 . . . it follows that the question arises under federal law, and federal question jurisdiction 22 exists.” New SD, Inc. v. Rockwell Int’l Corp., 79 F.3d 953, 955 (9th Cir. 1996). 23 Accordingly, this Court has federal question jurisdiction over Plaintiff’s claims arising 24 under federal law. 25 A federal court has diversity jurisdiction over a non-federal claim where there is 26 complete diversity of parties and the amount in controversy exceed $75,000. 28 U.S.C. 27 § 1332(a). Plaintiff here alleges complete diversity of the parties—Plaintiff is a California 28 corporation with its principal place of business in California. (ECF No. 5 ¶ 5.) Both 1 individual defendants are domiciled and reside in South Africa. (Id. ¶¶ 6–7.) The corporate 2 defendant, Tammy Taylor Global Franchising, is a South African entity with its principal 3 place of business in South Africa. (Id. ¶ 8.) Therefore, complete diversity of parties exists. 4 Further, the amount in controversy exceeds $75,000, plus attorney’s fees and costs. It 5 follows that, for the claims that are not federal question claims, the Court retains diversity 6 jurisdiction. 7 As to the South African Mark, however, the Court finds it does not have subject- 8 matter jurisdiction. Plaintiff makes no argument as to why or how the Court may have 9 jurisdiction over the South African Mark and so the Court denies in part, without prejudice, 10 all claims related to Plaintiff’s South African Mark. The Lanham Act does not apply 11 extraterritorially and only applies to commerce Congress may lawfully regulate. Abitron 12 Austria GmbH v. Hetronic Int'l, Inc., 600 U.S. 412, 419 (2023). Indeed, no statute applies 13 extraterritorially unless there is an express statement of extraterritoriality or another clear 14 indication that it applies abroad. Id. at 420. The Court is thus unconvinced that it has the 15 power to adjudicate any of Plaintiff’s claims as they relate to its South African Mark used 16 in South Africa, but Plaintiff is free to renew its Motion as to the South African Mark to 17 make its arguments for why this Court may have subject-matter jurisdiction over such 18 claims. 19 2. Service of Process 20 Service of process is a prerequisite for personal jurisdiction over a defendant. See 21 Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Defendants must be served 22 in accordance with . . . the Federal Rules of Civil Procedure, or there is no personal 23 jurisdiction.”). “Neither actual notice, nor simply naming the person in the caption of the 24 complaint, will subject defendants to personal jurisdiction if service was not made in 25 substantial compliance with Rule 4.” Id. (citations omitted). Specifically, Rule 4(f) governs 26 service on an individual in a foreign country. The Viljoens reside in South Africa and 27 therefore Rule 4(f) governs appropriate service of process procedure. (ECF No. 5 ¶¶ 6–7.) 28 1 Rule 4(f) offers several possible methods for effecting service on an individual in a 2 foreign country. For instance, an individual may be served “by any internationally agreed 3 means of service that is reasonably calculated to give notice, such as those authorized by 4 the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” 5 Fed. R. Civ. P. 4(f)(1). Because Plaintiff does not cite to, nor could this Court discover, an 6 internationally agreed-upon means of service (entered into by both the United States and 7 South Africa) by which Plaintiff could serve the Viljoen Defendants, Rule 4(f)(1) does not 8 apply. 9 Fortunately, Rule 4(f)(2)(A) allows service on a party in a foreign country so long 10 as that service is executed in accordance with the “the foreign country’s law for service in 11 that country in an action in its courts of general jurisdiction.” The Court therefore examines 12 sufficiency of service under South Africa’s laws as to each Defendant. 13 The Viljoen Defendants. South African law permits personal service. Rule 4 of the 14 South African Uniform Rules of Court (“Uniform Rules”) governs service of process and 15 provides for various means of service in courts of general jurisdiction in South Africa. Of 16 relevance here, Uniform Rule 4(1)(a) provides that service of any process of the court be 17 directed to the sheriff and that a sheriff effects service by delivering a copy to a named 18 defendant personally, Uniform Rule 4(1)(a)(i), or that a sheriff may effect service “by 19 delivering a copy thereof at the place of employment of the said person, . . . to some person 20 apparently not less than sixteen years of age and apparently in authority over him;” 21 Uniform Rule 4(1)(a)(iii). 22 The Viljoen Defendants have each been served in accordance with Universal Rule 23 4. Peet Viljoen was personally served by a sheriff in Menlyn, South Africa. (ECF No. 7.) 24 The sheriff attests Peet Viljoen was served with the civil summons, report on the filing or 25 determination, the Complaint, the FAC, and disclosure statement. (Id.) The contents of the 26 sheriff’s affidavit show service upon Peet Viljoen complied with Uniform Rule 4’s 27 requirements as contained in Uniform Rule 4(1)(b)–(d). Service took place at a permissible 28 time. (Compare ECF No. 7 (showing service took place at 10:31), with Uniform Rule 1 4(1)(b) (requiring service be effected “as near as possible between the hours of 7 a.m. and 2 7 p.m.).) Service did not take place on a Sunday. (Compare ECF No. 7 (showing service 3 took place on May 16, 2024, a Thursday), with Uniform Rule 4(1)(c) (requiring service not 4 take place on a Sunday unless otherwise directed by a court or judge).) And, the nature and 5 contents of the served documents were explained to Peet Viljoen. (Compare ECF No. 7 6 (“[T]he nature and contents thereof [were] explained to [Peet Viljoen]”), with Uniform 7 Rule 4(1)(d) (“It shall be the duty of the sheriff or other person serving the process or 8 documents to explain the nature and contents thereof to the person upon whom service is 9 being effected and to state in his return or affidavit or on the signed receipt that he has done 10 so.).) That Peet Viljoen evidently refused to sign does not appear to have an impact on the 11 legitimacy of service of process. See generally Uniform Rule 4. 12 The affidavit attesting to service upon Melany Viljoen is virtually identical except 13 that service took place via substitute service upon Peet Viljoen, evidently in compliance 14 with Uniform Rule 4(1)(a)(iii), wherein a sheriff effects service by leaving a copy of the 15 documents with a person in charge at the location. (See ECF No. 6 (attesting that the sheriff 16 served the documents upon “MR P VILJOEN” (Peet Viljoen) and identifies him as the 17 “HUSBAND” before noting service was completed in accordance with “[Universal] Rule 18 4(1)(a)(iii)”).) Because this substitute service took place at virtually the same moment as 19 service upon Peet Viljoen, and the contents of the affidavit are nearly identical, minus the 20 language regarding substitute service, service of process likewise appears to have complied 21 with Uniform Rule 4. 22 Accordingly, under Federal Rule of Civil Procedure 4(f)(2)(A), the Viljoens were 23 served “as prescribed by [South Africa’s] law for service in [South Africa] in an action in 24 its courts of general jurisdiction.” Therefore, under Federal Rule of Civil 25 Procedure 4(l)(2)(B), the Court is satisfied that the summons and complaint were properly 26 served upon the Viljoens. 27 28 1 Tammy Taylor Global Franchising. As it served the Viljoens, Plaintiff appears to 2 have served Tammy Taylor Global Franchising in accordance with South Africa’s rules 3 directing service. Uniform Rule 4 also governs service on a corporation as follows: 4 in the case of a corporation or company, by delivering a copy to a responsible employee thereof at its registered office or its 5 principal place of business within the court’s jurisdiction, or if 6 there be no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in 7 any manner provided by law. 8 Uniform Rule 4(1)(a)(v) (S. Afr.) (emphasis added).

9 Service of process on Tammy Taylor Global Franchising apparently took place 10 contemporaneously with service on the Viljoens. (See ECF No. 8.) Having now had the 11 benefit of supplemental briefing, the Court determines the address where Tammy Taylor 12 Global Franchising was served, via Peet Viljoen who is an employee of Tammy Taylor 13 Global Franchising, was indeed the principal place of business of the corporation. (ECF 14 No. 26, Exs. 40–41.) Plaintiff has met the requirements for service upon a corporation in 15 South Africa. 16 Having determined that service was proper as to each Defendant, the Court turns to 17 the question of personal jurisdiction as to each Defendant and each claim. Action 18 Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004) (“Personal 19 jurisdiction must exist for each claim asserted against a defendant.” (citation omitted)). 20 3. Personal Jurisdiction 21 Federal courts generally follow the forum state’s law in determining the limits of 22 their jurisdiction over individuals. Glob. Commodities Trading Grp., Inc. v. Beneficio de 23 Arroz Choloma, S.A., 972 F.3d 1101, 1106 (9th Cir. 2020) (citation omitted). California’s 24 long-arm statue requires compliance with due process. Cal. Civ. Proc. Code § 410.10. 25 Parties may consent to personal jurisdiction in a forum via “a ‘variety of legal 26 arrangements’ by which a litigant may give ‘express or implied consent to the personal 27 jurisdiction of the court.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985) 28 (citation omitted). This includes consenting to a court’s jurisdiction by contract. See id. 1 (“[P]arties frequently stipulate in advance to submit their controversies for resolution 2 within a particular jurisdiction.”); Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315– 3 16 (1964) (“[P]arties to a contract may agree in advance to submit to the jurisdiction of a 4 given court.”). 5 Where parties have not consented to jurisdiction in a particular forum, courts analyze 6 personal jurisdiction through two frameworks: general and specific jurisdiction. Daimler 7 AG v. Bauman, 571 U.S. 117, 118 (2014). Plaintiff has already conceded that none of the 8 defendants is subject to general jurisdiction here. (ECF No. 26 at 3.) Therefore, the Court 9 analyzes specific jurisdiction alone. 10 Specific jurisdiction attaches to “a narrower class of claims” than those subject to 11 general jurisdiction. Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 359 12 (2021). To hale a nonresident defendant into court under a specific jurisdiction theory, the 13 defendant must have sufficient “minimum contacts” with the forum to comport with due 14 process; that is, the defendant's “suit-related conduct must create a substantial connection 15 with the forum State.” Walden v. Fiore, 571 U.S. 277, 284 (2014). In determining whether 16 specific jurisdiction applies, courts undertake a three-prong analysis: “(1) the defendant 17 must either ‘purposefully direct his activities’ toward the forum or ‘purposefully avail 18 himself of the privileges of conducting activities in the forum’; (2) the claim must be one 19 which arises out of or relates to the defendant's forum-related activities; and (3) ‘the 20 exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be 21 reasonable.’” Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th Cir. 22 2017) (quoting Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002)). “The 23 plaintiff bears the burden of satisfying the first two prongs of the test.” Schwarzenegger v. 24 Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). If the plaintiff meets its burden, 25 the defendant then bears the burden of showing that the exercise of jurisdiction would be 26 unreasonable. Id. 27 Sometimes where a court otherwise does not have personal jurisdiction over a party 28 as to a particular claim, the court may choose to assert pendent jurisdiction over that claim. 1 To do so, the claim subject to pendent jurisdiction must arise out of a common nucleus of 2 operative facts with a claim in the same suit over which the court has specific jurisdiction. 3 Action Embroidery Corp., 368 F.3d at 1180. 4 i. Consent to Personal Jurisdiction: Breach of Contract Claims 5 Plaintiff’s breach of contract claims are alleged against only the Viljoen Defendants. 6 From the outset, Plaintiff notes that the Viljoens consented to this Court’s jurisdiction 7 regarding claims concerning the Agreements when they signed the Agreements, which 8 each contained a forum selection clause. (ECF No. 17 at 17–18 n.2.) Indeed, Tammy Taylor 9 (“Taylor”) attests that she signed the Distribution Agreement and the License Agreement 10 along with the Viljoens. (ECF No. 17-1, Taylor Decl. ¶¶ 10, 12.) Plaintiff has included 11 copies of these Agreements as Exhibits 24 (the Distribution Agreement) and 25 (the 12 License Agreement). The Distribution Agreement forum selection clause reads, “each 13 party irrevocably submits to the exclusive jurisdiction of the federal and state courts located 14 in the State of California for the purposes of any action or proceeding arising out of or 15 relating to this Agreement.” (ECF No. 20, Ex. 24 at § 14(b).) The License Agreement 16 employs identical language. (Id., Ex. 25 at § 11.2.) 17 “Forum selection clauses are presumptively valid.” Melendez v. Vaiana, No. EDCV 18 16-2516 JGB (SPx), 2017 WL 8183139, at *3 (C.D. Cal. Oct. 19, 2017) (citing M/S Bremen 19 v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972)); see also Argueta v. Banco Mexicano, S.A., 20 87 F.3d 320, 325 (9th Cir. 1996) (“Although Bremen is an admiralty case, its standard has 21 been widely applied to forum selection clauses in general.”) The Ninth Circuit has further 22 recognized that the acceptance of a forum selection clause constitutes consent to personal 23 jurisdiction in the identified forum. S.E.C. v. Ross, 504 F.3d 1130, 1149 (9th Cir. 2007). 24 The Court sees no reason to find the Agreements’ forum selection clauses as 25 anything other than valid. Accordingly, this Court has personal jurisdiction over each of 26 the Viljoens as to the breach of contract claims. 27 28 1 ii. Specific Jurisdiction: Federal Claims 2 Plaintiff claims there is specific personal jurisdiction over all Defendants for the 3 federal claims through nationwide jurisdiction, which is governed by Rule 4(k)(2). To 4 satisfy Rule 4(k)(2), the plaintiff must show: (1) that the claim against the defendant arises 5 under federal law, (2) that the defendant is not subject to personal jurisdiction in any one 6 state’s courts of general jurisdiction, and (3) that the exercise of personal jurisdiction 7 comports with due process. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1159 (9th Cir. 8 2006). 9 The first two factors are easily met—Plaintiff alleges federal claims and Defendants 10 are not subject to any court of general jurisdiction in the United States. The Viljoens are 11 citizens of South Africa and Tammy Taylor Global Franchising has its principal place of 12 business and is incorporated there. Rule 4(k)(2)’s third factor, due process, requires a 13 harder look. 14 To determine whether the exercise of personal jurisdiction comports with due 15 process under Rule 4(k)(2), the Court looks at the following factors: (1) whether the 16 defendant has engaged in purposeful activities or transactions with the United States, with 17 an act that shows defendant purposefully availing itself of the privileges of doing business 18 in the United States, and thereby invoking the benefits and protections of its laws; 19 (2) whether the claim arises out of activities that are related to the United States; and 20 (3) whether the exercise of jurisdiction must comport with notions of fair play and 21 substantial justice. Lang Van, Inc. v. VNG Corp., 40 F.4th 1034, 1041 (9th Cir. 2022). 22 Contrary to Plaintiff’s arguments, due process is not satisfied if the defendant simply 23 knows the plaintiff has ties to the forum and the defendant harms the plaintiff. Walden, 571 24 U.S. at 290. 25 a. Purposeful Direction 26 An analysis “under the ‘purposeful availment or direction’ prong of the specific 27 jurisdiction test turns on the nature of the underlying claims.” Ayla, LLC v. Alya Skin Pty. 28 Ltd., 11 F.4th 972, 979 (9th Cir. 2021) (citing Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1 1142 (9th Cir. 2017)). Claims based in tort require a purposeful direction analysis, and 2 trademark claims like the ones asserted here are considered “tort-like for personal 3 jurisdiction purposes.” Ayla, LLC, 11 F.4th at 979 (citation omitted). Courts determining 4 purposeful direction use the Calder effects test to decide whether a defendant has 5 purposefully directed activities toward a forum state. Burri L. PA v. Skurla, 35 F.4th 1207, 6 1213 (9th Cir. 2022) (citing Calder v. Jones, 465 U.S. 783, 788–89 (1984)). 7 The Calder effects test is a three-part test requiring that the defendant have 8 “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm 9 that the defendant knows is likely to be suffered in the forum state.” Mavrix Photo, Inc. v. 10 Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011) (citation omitted). All three 11 components must be met for a defendant to have purposefully directed its activities toward 12 the forum state. Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 577 (9th Cir. 2018). 13 Rather than considering a defendant’s contacts with just one state, in a Rule 4(k)(2) analysis 14 the Court considers each defendant’s contacts with the nation “as a whole.” Holland Am. 15 Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 462 (9th Cir. 2007) (citing Pebble Beach 16 Co., 453 F.3d at 1159). 17 The Court requested and received supplemental briefing as to whether Defendants’ 18 contacts related to each of the federal claims were sufficient to survive the Calder effects 19 test. (ECF Nos. 21–22, 26.) The Court has no concerns that Defendants acted intentionally 20 in every relevant respect in this case and no concerns that they caused harm knowing it 21 would be suffered in the United States, given that Plaintiff is based in the United States. 22 Therefore, the first and third elements of Calder are satisfied and the analysis turns on the 23 second element: express aiming. 24 Defendants have expressly aimed at the United States. The Viljoens entered into two 25 contracts here with Plaintiff, opting into the jurisdiction of California courts and have 26 registered a trademark here. Further, all Defendants have advertised the Website through a 27 billboard in the United States (ECF No. 5 ¶ 35; ECF No. 20, Ex. 29), have used the Website 28 to sell the allegedly infringing products into the United States (ECF No. 5 ¶ 61), and have 1 geotagged a location in the United States in their Instagram post highlighting the billboard 2 (ECF No. 20, Ex. 29). The sale of products on the Website into the United States is of 3 particular importance to the analysis. 4 As early as 1997, the Ninth Circuit held that the mere passive nationwide 5 accessibility of a website is not enough to show express aiming at a forum state. Cybersell, 6 Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997). However, a defendant may expressly 7 aim at a forum where it has an interactive website and “something more to indicate that the 8 defendant purposefully (albeit electronically) directed [its] activity in a substantial way to 9 the forum state.” Id. at 418. 10 This “something more” has taken various shapes in the intervening years since 11 Cybersell. For instance, in Rio Properties, Inc. v. Rio International Interlink, the panel 12 found “something more” where the web-based defendant directly targeted the forum 13 through radio and print advertisements in the forum. 284 F.3d 1007, 1020–21 (9th Cir. 14 2002). Then, in Mavrix Photo, the court found the “something more” where the Ohio- 15 headquartered defendant exploited the California market for its own commercial gain and 16 cultivated a nationwide audience in addition to selling products into California. 647 F.3d 17 at 1229–30. Most relevant to this case, the Ninth Circuit in Herbal Brands found the 18 “something more” for express aiming where defendants, in their regular course of business, 19 sold a physical product via an interactive website and caused that product to be delivered 20 into the forum state. Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th 1085, 1094 (9th Cir. 21 2023), cert. denied, 144 S. Ct. 693 (2024). That the sales of the products were not random 22 or isolated, and that the defendant’s online storefront permitted a “high volume of sales 23 throughout the [United States],” constituted express aiming. Id. at 1094–95. 24 If Defendants had appeared in this case, the Court would be able to order discovery 25 as to the precise scope of the Website’s sales and thus develop the kind of factual record 26 before the panel in Herbal Brands. Because Defendants have refused to appear here, 27 though, Plaintiff and the Court are deprived of this information. That Defendants’ Website 28 1 sold products into the United States is enough on its own to demonstrate express aiming 2 even apart from the Viljoen Defendants’ additional contacts with the United States. (ECF 3 No. 5 ¶ 61); see Rodriguez v. Aquatic Sales Sols. LLC, 735 F. Supp. 3d 1208, 1224 (C.D. 4 Cal. 2024) (holding that because the defendant operated an interactive website and sold 5 products into California, the defendant expressly aimed at California); see also Swarts v. 6 Home Depot, Inc., 689 F. Supp. 3d 732, 742 (N.D. Cal. 2023) (holding there was express 7 aiming at California where the plaintiff could show that the defendant sold a physical 8 product to him in the forum through its interactive website). 9 Having found that the Viljoen Defendants acted intentionally, expressly aimed at the 10 United States, and caused harm in the United States, the Court finds Defendants 11 purposefully directed their conduct at the United States. 12 b. Arise Out of or Relate to Forum Activities 13 The second prong of the minimum contacts inquiry considers whether the plaintiff’s 14 claims “‘arise out of or relate to the defendant’s contacts with the forum.’” Ford Motor 15 Co., 141 S. Ct. at 1025 (quoting Bristol-Myers Squibb Co. v. Superior Ct. of California, 16 San Francisco Cnty., 582 U.S. 255, 262 (2017)). “The first half of that standard asks about 17 causation; but the back half, after the ‘or,’ contemplates that some relationships will 18 support jurisdiction without a causal showing.” Id. at 1026. Each of Plaintiff’s federal 19 claims arises out of and relates to Defendants’ contacts with the forum, the United States. 20 The trademark infringement and counterfeiting all occur on the Website that permits sale 21 of these infringing products into the United States. (ECF No. 20, Ex. 30.) The trademark 22 cancellation claim arises out of a trademark the Viljoen Defendants registered with the 23 United States Patent and Trademark Office. (Id., Exs. 36–37.) Accordingly, this element 24 of due process is satisfied. 25 26

27 2 As an aside, that the Website uses a “.za” domain name instead of a “.com” domain name bears little relevance on this analysis because it “does not establish to whom the website is directed.” Pebble 28 1 c. Reasonableness 2 Once the plaintiff satisfies the first two prongs of the due process analysis, “the 3 burden then shifts to the defendant to ‘present a compelling case’ that the exercise of 4 jurisdiction would not be reasonable.” Schwarzenegger, 374 F.3d at 802 (quoting Burger 5 King Corp., 471 U.S. at 476–78). Defendants have not appeared and have not objected to 6 the exercise of personal jurisdiction over them. By failing to appear in this matter, 7 Defendants have thus conceded that the exercise of personal jurisdiction over them is 8 reasonable. Yelp Inc. v. Catron, 70 F. Supp. 3d 1082, 1094 (N.D. Cal. 2014); Ripple Servs., 9 Inc. v. Betur Inc., No. 23-CV-06215-LJC, 2024 WL 5396570, at *2 (N.D. Cal. Dec. 5, 10 2024), report and recommendation adopted, No. 23-CV-06215-JSC, 2025 WL 908042 11 (N.D. Cal. Feb. 4, 2025). Nonetheless, the Court has considered this factor and finds that 12 the exercise of personal jurisdiction is reasonable. The Court does so by balancing the 13 following factors: 14 (1) the extent of a defendant’s purposeful interjection; (2) the burden on the defendant in defending in the forum; (3) the extent 15 of conflict with the sovereignty of the defendant’s state; (4) the 16 forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the 17 importance of the forum to the plaintiff’s interest in convenient 18 and effective relief; and (7) the existence of an alternative forum.

19 Rio Properties, Inc., 284 F.3d at 1021. The balance of these factors shows that the exercise 20 of personal jurisdiction is reasonable. Defendants purposefully directed their activities at 21 the United States. There is no evidence of any burden on Defendants in defending 22 themselves in this Court or conflicts with the sovereignty of a foreign state. The United 23 States has an interest in ensuring that Plaintiff’s valid intellectual property rights are 24 protected, and this forum can efficiently resolve the conflict. Last, Plaintiff has an interest 25 in obtaining convenient and effective relief in this Court where there are no alternative fora 26 identified. The Court finds the exercise of personal jurisdiction over Defendants to be 27 reasonable and that the Court has specific jurisdiction over Defendants as to Plaintiff’s 28 federal claims. 1 iii. Pendent Jurisdiction: Common-law Trademark Claim 2 Plaintiff alleges Defendants infringed upon Plaintiff’s common-law trademark of the 3 Oval Double T Mark. For the Court to exercise personal jurisdiction over Defendants as to 4 this claim, Plaintiff must demonstrate why a court in California would have jurisdiction 5 over Defendants as to this claim. Instead of analyzing contacts with the nation as a whole, 6 the Court considers contacts only with California, the forum state. See Schwarzenegger, 7 374 F.3d at 800–01. 8 Here, Plaintiff alleges virtually no contacts by Defendants with California apart from 9 the Viljoen Defendants signing the two Agreements with Plaintiff, a California company. 10 However, the claim for breach of a common-law trademark is not related to these contacts, 11 nor does it arise out of these contacts. Because Plaintiff also alleges no contacts by Tammy 12 Taylor Global Franchising with California, this Court does not have independent personal 13 jurisdiction over any of Defendants as to Plaintiff’s common-law trademark claim. 14 Nonetheless, the Court finds it has personal jurisdiction over this claim through the 15 doctrine of pendent personal jurisdiction. “A court may assert pendent personal jurisdiction 16 over a defendant with respect to a claim for which there is no independent basis of personal 17 jurisdiction so long as it arises out of a common nucleus of operative facts with a claim in 18 the same suit over which the court does have personal jurisdiction.” Action Embroidery 19 Corp., 368 F.3d at 1180. “Pendent personal jurisdiction is typically found where one or 20 more federal claims for which there is nationwide personal jurisdiction are combined in the 21 same suit with one or more state or federal claims for which there is not nationwide 22 personal jurisdiction.” Id. 23 The common-law trademark infringement claim has a common nucleus of operative 24 fact with the federal claims over which this Court has nationwide personal jurisdiction. The 25 counterfeit products bearing Plaintiff’s federally registered trademarks also bore Plaintiff’s 26 common-law Oval Double T Mark. (ECF No. 20, Exs. 21–22.) This Court therefore 27 exercises its discretion to assert pendent personal jurisdiction over this claim against all 28 Defendants. 1 Upon finding that the procedural requirements are satisfied, a district court has 2 discretion to enter default judgment where appropriate. Aldabe v. Aldabe, 616 F.2d 1089, 3 1092 (9th Cir. 1980). 4 B. The Eitel Factors 5 “A defendant’s default does not automatically entitle the plaintiff to a court-ordered 6 judgment.” PepsiCo, Inc. v. California Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 7 2002). In exercising discretion, a court must consider the Eitel factors. Eitel v. McCool, 8 782 F.2d 1470, 1471–72 (9th Cir. 1986). 9 Upon consideration of Plaintiff’s FAC and the materials provided by Plaintiff in 10 support of the application for default judgment, the Court finds that the Eitel factors 11 strongly favor default judgment against Defendants. 12 1. Possibility of Prejudice to the Plaintiff 13 The first Eitel factor asks the Court to consider the possibility of prejudice to the 14 plaintiff. A defendant’s failure to respond or otherwise appear in a case prejudices a 15 plaintiff’s ability to pursue its claims on the merits. Here, Plaintiff will suffer prejudice 16 with no recourse to prevent further infringement or recover from the alleged contractual 17 breaches. See Levi Strauss & Co. v. Toyo Enter. Co., 665 F. Supp. 2d 1084, 1095 (N.D. 18 Cal. 2009) (finding this factor satisfied where trademark plaintiff alleged inability “to 19 prevent continued infringement and dilution”); see also Aspen Am. Ins. Co. v. Morrow, 643 20 F. Supp. 3d 941, 949 (D. Alaska 2022) (finding a possibility of prejudice to the plaintiff in 21 a breach of contract claim because “[w]ithout entry of default judgment, Defendant could 22 escape liability”). As a result, this factor weights in favor of default judgment. 23 2. Substantive Merits of Plaintiff’s Claims and Sufficiency of the 24 Complaint 25 The second and third factors focus on the merits of Plaintiff’s substantive claims and 26 the sufficiency of the complaint. See Eitel, 782 F.2d at 1471. These factors, often analyzed 27 together, require courts to determine whether a plaintiff has “state[d] a claim on which [it] 28 may recover.” PepsiCo, Inc., 238 F. Supp. 2d at 1175. Such analysis examines each claim’s 1 plausibility. “A claim has facial plausibility when the plaintiff pleads factual content that 2 allows the court to draw the reasonable inference that the defendant is liable for the 3 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 4 v. Twombly, 550 U.S. 544, 556 (2007)). “Where the allegations in a complaint are not ‘well- 5 pleaded,’ liability is not established by virtue of the defendant’s default and default 6 judgment should not be entered.” See Adobe Sys., Inc. v. Tilley, No. C09-1085 PJH, 2010 7 WL 309249, at *3 (N.D. Cal. Jan. 19, 2010). 8 If a district court has “serious reservations” about the merits of a plaintiff’s claims 9 based on the pleadings, these factors weigh in favor of denying default judgment. See Eitel, 10 782 F.2d at 1472. Courts often consider these factors to be “the most important.” Vietnam 11 Reform Party v. Viet Tan - Vietnam Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal. 12 2019) (citation omitted). As detailed below, these two factors weigh in favor of default 13 judgment as to all claims alleged in the FAC. 14 i. Breaches of Contract Alleged Against the Viljoens 15 The Agreements both invoke California law as the law of the contract. (FAC, Ex. J 16 § 14(b), Ex. K § 11.2.) In California, “the elements of a cause of action for breach of 17 contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for 18 nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” 19 Oasis W. Realty, LLC v. Goldman, 250 P.3d 1115, 1121 (Cal. 2011). Plaintiff demonstrates 20 the facial plausibility of its breach of contract claims against Melany and Peet Viljoen, 21 sufficiently alleging that the Viljoens breached both the Distribution Agreement and the 22 License Agreement. 23 Plaintiff provides copies of the signed Agreements and alleges it performed all of 24 the required material terms and conditions of the Agreements. (ECF No. 5 ¶¶ 49, 55.) 25 Plaintiff’s claims for breach of contract have facial plausibility because Plaintiff pleads 26 factual content that the Viljoens continued to use Plaintiff’s various marks and sold 27 products and franchises after Plaintiff had terminated the Agreements. (See, e.g., id. ¶ 35 28 (alleging the Viljoens started Tammy Taylor Global Franchising, which runs the Website 1 advertising franchises and nail and salon products under various TTN marks).) Such 2 continued use of Plaintiff’s marks after termination of the Agreements is a clear breach of 3 each of the Agreements. (Id., Ex. J § 11; id., Ex. K § 8.3.) Further, Plaintiff demonstrates 4 its harm from these breaches—customers submitted comments to Plaintiff complaining 5 about the Viljoens’ management and franchising practices in Africa. (ECF No. 20, Exs. 6 26–27.) In sum, these factors weigh in favor of entry of default judgment for Plaintiff as to 7 the claims for breach of contract alleged against the Viljoens. 8 ii. Trademark Infringement and False Designation of Origin 9 Alleged Against All Defendants 10 Plaintiff brings claims for trademark infringement under 15 U.S.C. § 1114, false 11 designation of origin under 15 U.S.C. § 1125(a), and common-law trademark infringement. 12 Claims of trademark infringement under 15 U.S.C. § 1114 and false designation of origin 13 under 15 U.S.C. § 1125(a) “are subject to the same test.” Jada Toys, Inc. v. Mattel, Inc., 14 518 F.3d 628, 632 (9th Cir. 2008); Century 21 Real Est. Corp. v. Sandlin, 846 F.2d 1175, 15 1178 (9th Cir. 1988). California common-law trademark claims are also evaluated by the 16 same standards as federal trademark claims. Grupo Gigante SA De CV v. Dallo & Co., 391 17 F.3d 1088, 1100 (9th Cir. 2004). Because they share the same analysis, the Court analyzes 18 the substantive merits of these claims together. 19 To successfully assert a claim for trademark infringement, a plaintiff must plausibly 20 allege (1) that it owns a valid, protectable mark; (2) that defendant used the mark without 21 consent; and (3) that use of the mark is likely to cause confusion. 15 U.S.C. § 1114(1); 22 Century 21 Real Est. Corp., 846 F.2d 1175. “The critical determination is whether an 23 alleged trademark infringer’s use of a mark creates a likelihood that the consuming public 24 will be confused as to who makes what product.” Jada Toys, Inc., 518 F.3d at 632 (citing 25 Brother Recs., Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir. 2003)) (citation modified). 26 To the first element, a plaintiff’s federal registration of a trademark is “prima facie 27 evidence that the plaintiff owns a valid trademark.” Blumenthal Distrib., Inc. v. Comoch 28 Inc., 652 F. Supp. 3d 1117, 1128 (C.D. Cal. 2023) (citation omitted). Here, TTN argues 1 the U.S. Registered Marks are valid and protectable, and, in support of this argument, TTN 2 provides the Court with the federal registration numbers and certificates of the U.S. 3 Registered Marks. (ECF No. 5, Exs. A–D.) As such, TTN adequately establishes that its 4 U.S. Registered Marks are valid and protectable. Blumenthal, 652 F. Supp. 3d at 1128. 5 Plaintiff similarly alleges that the Oval Double T Mark is valid and protectable by alleging 6 and showing that it has priority of use—Plaintiff employed the Oval Double T Mark as 7 early as 2011 and has continued to use it ever since. (ECF No. 5 ¶¶ 22, 25; ECF No. 20, 8 Exs. 21–23); Sengoku Works Ltd. v. RMC Int’l, Ltd., 96 F.3d 1217, 1219 (9th Cir.), as 9 modified, 97 F.3d 1460 (9th Cir. 1996) (“[T]he party claiming ownership [of the mark] 10 must have been the first to actually use the mark in the sale of goods or services.”). As to 11 the second element, TTN claims Defendants do not have permission to use TTN’s U.S. 12 Registered Marks or Oval Double T Mark, yet Defendants have used these marks, and thus 13 the second element is met. 14 Plaintiff also satisfies the third element. A likelihood of confusion is presumed when 15 the offending mark is counterfeit or virtually identical to a protected mark and it is used on 16 an identical product or service. Louis Vuitton Malletier, S.A. v. Akanoc Sols., Inc., 658 F.3d 17 936, 945 (9th Cir. 2011). Here, the U.S. Registered Marks and Oval Double T Mark are 18 virtually identical with those used by Defendants and are used with identical products and 19 services. The FAC thus successfully alleges the final element and successfully alleges 20 trademark infringement under 15 U.S.C. § 1114, common-law trademark infringement, 21 and false designation of origin under 15 U.S.C. § 1125(a), which weighs in favor of 22 entering default judgment on these claims. 23 The Court notes, however, that this factor does not weigh in favor of default 24 judgment as to any claim related to Tammy Taylor’s South African Mark. The Lanham 25 Act does not apply extraterritorially and only applies to commerce Congress may lawfully 26 regulate. Abitron Austria GmbH v. Hetronic Int’l, Inc., 600 U.S. 412, 419–21 (2023). The 27 Court is unconvinced, therefore, that it has the power to adjudicate any dispute related to a 28 1 South African trademark used in South Africa, but Plaintiff is free to renew its Motion as 2 to the South African Mark if it disagrees. 3 iii. Counterfeiting Alleged Against All Defendants 4 To prevail on its trademark counterfeiting claim, Plaintiff must prove that the 5 Viljoens reproduced one or more of Plaintiff’s registered marks and applied such 6 reproduction to labels, signs, prints, packages, wrappers, receptacles, or advertisements 7 intended to be used in commerce upon or in connection with the sale, distribution, or 8 advertising of goods or services on or in connection with which such use is “likely to cause 9 confusion . . . or to deceive.” 15 U.S.C. § 1114(1)(b). 10 The FAC properly alleges the elements for this cause of action by laying out the 11 identity of Plaintiff’s U.S. Registered Marks (ECF No. 5, Exs. A–D), the likelihood of 12 confusion between the U.S. Registered Marks and Defendants’ products (see supra), and 13 that the products and services sold by Defendants are not connected with Plaintiff (ECF 14 No. 5 ¶ 40). The FAC further alleges that Plaintiff’s reputation and goodwill has been 15 damaged by the inferior quality of the counterfeit products and services. Accordingly, this 16 factor weighs in favor of entering default judgment as to this claim. 17 iv. Cancellation of Registered Trademark Alleged Against the 18 Viljoen Defendants 19 Courts have the power to cancel trademark registrations under the Lanham Act. 15 20 U.S.C. §§ 1064, 1119. Plaintiff cites fraud, priority, and likelihood of confusion as reasons 21 for this Court to cancel the Viljoens’ trademark registration of the Oval Double T Mark. 22 (ECF No. 5 ¶ 83.) 23 “Cancellation of registration is proper when (1) there is a valid ground why the 24 trademark should not continue to be registered and (2) the party petitioning for cancellation 25 has standing.” Star-Kist Foods, Inc. v. P.J. Rhodes & Co., 735 F.2d 346, 348 (9th Cir. 26 1984). The second element is clearly met because Tammy Taylor Nails has established its 27 use of the Oval Double T Mark continuously in commerce since 2011. (ECF No. 5 ¶ 22); 28 see Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1226 (9th Cir. 2008) 1 (acknowledging that “ownership of an unregistered trademark . . . is sufficient to establish 2 standing under the Lanham Act”). 3 Plaintiff principally rests its claim for cancellation of the Viljoens’ trademark 4 registration on grounds of fraud. “To succeed on a claim for cancellation based on fraud, 5 [the moving party] must adduce evidence of (1) a false representation regarding a material 6 fact; (2) the registrant’s knowledge or belief that the representation is false; (3) the 7 registrant’s intent to induce reliance upon the misrepresentation; (4) actual, reasonable 8 reliance on the misrepresentation; and (5) damages proximately caused by that reliance.” 9 Hokto Kinoko Co. v. Concord Farms, Inc., 738 F.3d 1085, 1097 (9th Cir. 2013) (citing 10 Robi v. Five Platters, Inc., 918 F.2d 1439, 1444 (9th Cir. 1990)). “A false representation 11 in the original trademark application . . . may be grounds for cancellation if all five 12 requirements are met.” Id. (citing J. Thomas McCarthy, McCarthy on Trademarks and 13 Unfair Competition § 20:58 (4th ed. 2005)). A party moving to cancel a registered 14 trademark bears “a heavy burden.” Id. 15 The FAC properly alleges the elements of this cause of action. The Viljoens, in their 16 Federal Trademark Registration Application, represented that the Oval Double T Mark was 17 first used in commerce on January 21, 2023. (ECF No. 5, Ex. L; ECF No. 20, Ex. 36 at 18 174.) This is false. Plaintiff first used this mark in commerce beginning in 2011 and has 19 used it continuously since then. (ECF No. 5 ¶ 22.) The Viljoens were aware of this because 20 they signed the Agreements with Plaintiff in 2017 and 2018, years before the Viljoens 21 attempted to register the Oval Double T Mark in 2023. (Id. ¶¶ 10, 45.) The Viljoens sought 22 to induce the United States Patent and Trademark Office’s reliance on this 23 misrepresentation in granting the Viljoens the trademark. It was reasonable for the United 24 States Patent and Trademark Office to rely on the Viljoens’ representations in their signed 25 application. Plaintiff sufficiently alleges harm by stating it believes it has been damaged 26 by this fraudulent registration of its own Oval Double T Mark. (Id. ¶ 103); see Jun-En 27 Enters. v. Lin, No. CV 12-2734 PSG (SSX), 2014 WL 12580253, at *7 (C.D. Cal. Aug. 28 27, 2014); see also La Canada Ventures, Inc. v. MDalgorithms, Inc., No. 22-CV-07197- 1 RS, 2024 WL 40205, at *5 (N.D. Cal. Jan. 3, 2024) (finding a counterclaimant adequately 2 pled a claim for cancellation of a trademark registration on the basis of fraud where the 3 counterclaimant alleged it was damaged by the registration). 4 Plaintiff thus sufficiently alleges each of its claims against each Defendant (apart 5 from any claim related to the South African Mark) and therefore these factors weigh in 6 favor of default judgment for the Plaintiff. 7 3. The Sum of Money at Stake in the Action 8 According to the fourth Eitel factor, the court must consider “the sum of money at 9 stake in the action.” Eitel, 782 F.2d at 1471. Default judgment is warranted when Plaintiff’s 10 requested damages are “proportional to the harm caused by defendant’s conduct.” Landstar 11 Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 921 (C.D. Cal. 2010). Where the 12 sum of money at stake is substantial, default judgment is discouraged. Blumenthal Distrib., 13 Inc. v. Comoch Inc., 652 F. Supp. 3d 1117, 1130 (C.D. Cal. 2023). 14 Here, Plaintiff requests $22,176,000, plus attorney’s fees and costs, in favor of 15 Tammy Taylor Nails, Inc. and against Defendants, jointly and severally. (ECF No. 17 at 16 34.) This is a substantial sum. However, Plaintiff has pinned this sum to a damages expert’s 17 model, which assumes that Defendants’ actions have precluded Plaintiff from embarking 18 on a planned United States-focused franchising program. (ECF No. 17-28, Schulze Decl.), 19 This factor is thus neutral toward default judgment. See Silver Screen Films Inc. v. 20 Hollywood Media Venture, LLC, No. 2:22-CV-08901-SB-SSC, 2024 WL 1136526, at *3 21 (C.D. Cal. Feb. 9, 2024) (holding that because the conduct alleged was “egregious” and 22 damages sought were tailored to the conduct, this factor was neutral despite the plaintiff 23 requesting “millions”). 24 4. Possibility of Dispute Concerning Material Facts 25 The fifth Eitel factor asks the Court to consider whether there is a possibility of 26 dispute concerning material facts. Eitel, 782 F.2d at 1471–72. Where, as here, a defendant 27 has not filed an answer or otherwise responded to the operative complaint, it leaves the 28 court without any facts in dispute. “In such cases, courts routinely find that no factual 1 dispute exists, and that therefore, this Eitel factor weighs in favor of granting default 2 judgment.” Indian Hills Holdings, LLC v. Frye, 572 F. Supp. 3d 872, 889 (S.D. Cal. 2021). 3 As noted, no Defendant has responded or otherwise appeared in this case. 4 Accordingly, there is no dispute concerning material facts and this factor thus weighs in 5 favor of granting default judgment. 6 5. Possibility of Excusable Neglect 7 The sixth Eitel factor considers whether a defendant’s default may have resulted 8 from excusable neglect. Eitel, 782 F.2d at 1472. Where a defendant is “properly served 9 with the Complaint, the notice of entry of default, as well as the papers in support of the 10 instant motion,” the default “cannot be attributed to excusable neglect.” Shanghai 11 Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D. Cal. 2001). In this 12 case, as discussed above, the Court finds each Defendant was properly served with each of 13 Plaintiff’s filings in the case. This sixth Eitel factor thus weighs in favor of default 14 judgment. 15 6. Policy Favoring Decision on the Merits 16 “Cases should be decided upon their merits whenever reasonably possible.” Eitel, 17 782 F.2d at 1472. This factor weighs against default judgment. 18 However, the other Eitel factors outweigh this policy because of Defendants’ failure 19 to appear or otherwise answer Plaintiff’s Complaint makes a decision on the merits 20 impossible. Therefore, default judgment is appropriate. 21 C. Plaintiff’s Requested Relief 22 1. Damages 23 While the Court must accept Plaintiff’s well pleaded facts in the FAC as true, 24 Plaintiff must prove damages. TeleVideo Sys. Inc., 826 F.2d at 917–18. The damages 25 sought in default judgment may not exceed those requested in the pleadings. Fed. R. Civ. 26 P. 54(c). 27 28 1 i. Lost profits 2 Plaintiff seeks lost profits damages as compensation for Defendants’ trademark 3 infringement as well as the breach of contract claims and calculates the damages to be 4 $22,176,000. (ECF No. 17 at 16, 29–31, 34.) The requested amount does not exceed that 5 requested in the FAC. (ECF No. 5 at 19 (seeking $100,000,000).) Plaintiff seeks this 6 amount by claiming that Defendants ran the agreed-upon franchises in South Africa so 7 terribly that the destruction of the Tammy Taylor reputation reached around the world to 8 the United States and now TTN can no longer embark on its planned United States-based 9 franchising program. (ECF No. 17 at 30–31.) Plaintiff therefore seeks from Defendants all 10 the hypothetical profits of the first ten years of this hypothetical program, should it have 11 launched in the United States. (Id.) 12 However, Plaintiff introduces no evidence of the core premise upon which it bases 13 its damages request: any damage to the brand’s reputation in the United States that would 14 be so extensive as to preclude all domestic franchising possibilities for the next ten years. 15 (ECF No. 17-28, Schulze Decl. ¶ 12.) While Plaintiff introduces ample evidence of the 16 damage to TTN’s name in South Africa (ECF No. 20, Ex. 26), it introduces no evidence of 17 any damage to its name and Marks in the United States as a result of the Viljoens’ breaches 18 of the Agreements and infringement beyond TTN’s founder saying the business’s 19 reputation in the United States has also been harmed (ECF No. 17-1, Taylor Decl. ¶ 24). 20 This is unreasonable. 21 Plaintiff’s request for damages in the form of lost profits is thus denied without 22 prejudice. 23 ii. Statutory damages 24 “TTN requests the maximum statutory damages, amounting to $4,000,000 for 25 Defendants’ counterfeit infringement of TAMMY TAYLOR and TAMMY TAYLOR 26 NAILS.” (ECF No. 17 at 27.) Again, this is in line with Plaintiff’s request in the FAC. 27 (ECF No. 5 at 20.) Plaintiff also moves for an award of post-judgment interest. (ECF No. 28 17 at 11, 34.) 1 In the case of willful counterfeit infringement, the Court may award statutory 2 damages of not more than $2,000,000 per counterfeit mark per type of good or service sold. 3 15 U.S.C. § 1117(c)(2); Columbia Pictures Television, Inc. v. Krypton Broad. of 4 Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 2001) (“If statutory damages are elected, 5 the court has wide discretion in determining the amount of statutory damages to be 6 awarded, constrained only by the specified maxima and minima.” (citation modified)). 7 Defendants’ counterfeit infringement was clearly willful as the Viljoen Defendants, 8 by virtue of signing the Agreements, were aware of at least the two U.S. Registered Marks. 9 Further, the infringement appears to be ongoing and involves a number of products and 10 services. (ECF No. 20, Exs. 28–34.) As Plaintiff has satisfied each element, the Court 11 grants Plaintiff’s motion for statutory damages and awards Plaintiff $4,000,000 for 12 Defendants’ counterfeiting of Plaintiff’s U.S. Registered Marks, “TAMMY TAYLOR” 13 and “TAMMY TAYLOR NAILS.” However, Plaintiff’s request for post-judgment interest 14 is denied as it is incongruous with the relief requested in the FAC. (See ECF No. 5 at 21 15 (requesting an award of “prejudgment interest”).) 16 2. Cancellation of the Viljoen Defendants’ Registered Mark 17 Plaintiff also requests that the Court issue an order cancelling the Viljoens’ 18 registration for the Oval Double T Mark. (Id. ¶¶ 82–104.) As discussed above, Plaintiff 19 successfully alleges this claim and therefore this relief is granted. 20 3. Permanent Injunction 21 Plaintiff requests an injunction pursuant to this Court’s power under 15 U.S.C. 22 § 1116. (Id. at 20.) Specifically, Plaintiff requests the Court enjoin and restrain 23 Defendants and their agents, servants, and employees from further acts of unfair competition or infringement, including, 24 without limitation, directly or indirectly using the Marks, or any 25 other mark similar to the Marks;

26 (Id.) Plaintiff asks that the injunction require “that Defendants deliver to TTN for 27 destruction all signs, products, advertisements, literature, and any other promotional 28 material, which feature the Marks or any other trademarks confusingly similar to the 1 Marks;” shut down the website; cease selling any products that infringe on Plaintiff’s 2 marks; and cease selling any franchises or license agreements to any third parties 3 that concern or use the marks or purport to be associated with TTN. (Id. at 20–21.) 4 A plaintiff seeking permanent injunctive relief must demonstrate: “(1) that it has 5 suffered an irreparable injury; (2) that remedies available at law, such as monetary 6 damages, are inadequate to compensate for that injury; (3) that, considering the balance of 7 hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that 8 the public interest would not be disserved by a permanent injunction.” eBay, Inc. v. 9 MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 10 Here, the eBay factors support issuing a permanent injunction regarding Plaintiff’s 11 common-law trademark and U.S. Registered Marks. Plaintiff is entitled to “a rebuttable 12 presumption of irreparable harm” because the Court has found a Lanham Act violation. 15 13 U.S.C. § 1116. By failing to appear, Defendants have not rebutted this presumption in any 14 way. Given Defendants’ conduct and the need to avoid public confusion, the Court finds 15 that the remaining eBay factors likewise support the imposition of an injunction against 16 further infringement. The Court therefore grants the request for a permanent injunction, 17 limited to the common-law Oval Double T Mark and the U.S. Registered Marks and all 18 related marks. 19 4. Attorney’s Fees and Costs 20 The Court also finds that attorney’s fees and costs are appropriate in this case based 21 the willfulness of Defendants’ infringement as evidenced by their signing of the License 22 and Distribution Agreements (and therefore awareness of the marks). The Lanham Act 23 permits recovery of attorney fees to the prevailing party in “exceptional cases.” 15 U.S.C. 24 § 1117(a); see also Discovery Commc'ns, Inc. v. Animal Planet, Inc., 172 F. Supp. 2d 1282, 25 1291–92 (C.D. Cal. 2001) (for the purposes of recovering attorney’s fees, “[a] case is 26 exceptional if the defendant has acted in bad faith or with willful and deliberate conduct” 27 and “a case may be considered exceptional where the defendants disregard the proceedings 28 and do not appear.”) 1 Although Plaintiff is certainly entitled to attorney’s fees and costs, the Court 2 presumes the numbers before it are not final in this case while Plaintiff determines whether 3 it will renew its request for lost profits damages. The Court therefore denies without 4 prejudice the request for attorney’s fees and costs at this juncture. Should Plaintiff request 5 damages again, it may re-file its Motion for Attorney’s Fees and Costs. If Plaintiff chooses 6 not to renew its request for lost profits damages, it may simply renew its Motion for 7 Attorney’s Fees and Costs. 9 As explained above, Plaintiff’s Motion to Seal is GRANTED. Plaintiff’s Motion for 10 Default Judgment as to each of its claims is GRANTED IN PART where the claims relate 11 to Plaintiff’s U.S. Registered Marks and common-law Oval Double T Mark, as well as 12 Plaintiff’s claims for breach of contract, but the Motion is DENIED IN PART without 13 prejudice where the claims relate to Plaintiff’s South African Mark. Plaintiff’s request for 14 $22,176,000 in lost profits is DENIED, but its request for $4,000,000 in statutory damages 15 is GRANTED. Plaintiff’s request for attorney’s fees and costs is DENIED without 16 prejudice. Plaintiff’s request for a permanent injunction is GRANTED and the Court 17 hereby ORDERS AND ENJOINS as follows: 18 (1) The Court hereby CANCELS Melany Viljoen’s and Peet Viljoen’s U.S. Trademark 19 Registration No. 7,322,502, such that it shall no longer be registered with the United 20 States Patent and Trademark Office and will be null and void. 21 (2) Further, the Court ENTERS the following PERMANENT INJUNCTION3 against 22 Defendants and each of their officers, agents, servants, employees, and attorneys, 23 and all others in active concert or participation with them who receive actual notice 24 of this Order: 25 26 3 The language of this injunction derives from the proposed judgment Plaintiff lodged with the 27 Court’s efile account when it filed the initial Motion for Default Judgment. The Court does not adopt the proposed language in its entirety as the Court has no grounds to determine it has the jurisdiction to address 28 1 a. Defendants shall not directly or indirectly use and shall immediately cease the 2 use of the names “Tammy Taylor” or “Tammy Taylor Nails,” or of TTN’s 3 Oval Double T Mark; 4 b. Defendants shall not operate or hold themselves or their nail care business out 5 to the public or others as being sponsored by, approved by, affiliated with, 6 authorized by, or connected with, TTN, nor shall Defendants make any 7 written or oral statement holding themselves or their nail care business out as 8 “Tammy Taylor,” “Tammy Taylor Nails,” or as being in any way connected 9 with TTN; 10 c. Defendants shall not offer for sale, solicit sales, advertise, or sell any products 11 or services in any medium under any mark, name, symbol, logo, or other 12 indicia that incorporates or is confusingly similar to “Tammy Taylor” or 13 “Tammy Taylor Nails”; 14 d. Defendants shall not offer for sale, solicit sales, advertise, or sell any nail care 15 products, services, or retail stores in any medium, under any mark, name, 16 symbol, logo, or other indicia that is likely to cause confusion or to cause 17 mistake or to deceive persons into the erroneous belief that Defendants’ 18 products or services originate from TTN, or that Defendants or their agents 19 are authorized by TTN or are endorsed by TTN or are sponsored by TTN, or 20 are connected in some way with TTN; 21 e. Defendants shall contact any domain name registrar, social media website, 22 such as Instagram or Facebook, to abandon all domain names or Instagram 23 handles or Facebook profiles containing the words “Tammy Taylor,” 24 “Tammy Taylor Nails,” or any of TTN’s marks, including, without limitation 25 the domain name http://tammytaylornails.co.za. Defendants shall remove or 26 delete any reference to TTN or use of “Tammy Taylor” or “Tammy Taylor 27 Nails” from their social media, including from Instagram and Facebook. 28 Defendants shall contact any internet service provider to purge any domain 1 name server information from any web site addresses which have been used 2 to promote Defendants’ previous connection with TTN and contact any search 3 engines to delete references to their formerly TTN-connected nail care 4 businesses; and 5 f. Defendants shall remove and destroy any and all existing signage in their 6 possession containing the TTN name or marks, and all existing printed 7 materials in their possession bearing the TTN name and marks, including but 8 not limited to, business cards, stationery, envelopes, labels, signs, prints, 9 packages, advertisements, forms, contracts, promotional items and any other 10 materials in Defendants’ possession, custody or control, that identify 11 Defendants or their nail care business as operating under the names “Tammy 12 Taylor,” “Tammy Taylor Nails,” and any and all proofs, plates, and any other 13 means for making such material. 14 Should Plaintiff wish to renew its Motion for Default Judgment as to the South 15 || African Mark or its request for damages in the form of lost profits, such request must be 16 || filed no later than July 16, 2025. 17 Plaintiff's counsel is hereby directed to serve a copy of this Order on Defendants. 19 20 DATED: June 25, 2025 yatta Bahan te 1 H n. Cynthia Bashant, Chief Judge United States District Court 22 23 24 25 26 27 28 —|Q_