1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GS HOLISTIC, LLC, Case No. 2:22-cv-02086-WBS-CSK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

DENYING PLAINTIFF’S MOTION FOR

13 v. DEFAULT JUDGMENT 14 WALEED SMOKE SHOP INC d/b/a SMOKER’S GIFT SHOP, et al., 15 (ECF No. 52) Defendants. 16 17 Plaintiff GS Holistic, LLC asserts claims for “Federal Trademark Counterfeiting 18 and Infringement, 15 U.S.C. § 1114” and “Federal False Designation of Origin and Unfair 19 Competition, 15 U.S.C. § 1125(a)” against Defendants Waleed Smoke Shop Inc. d/b/a 20 Smoker’s Gift Shop and Waleed Abdul Rashid, seeking monetary damages, restitution, 21 an injunction, and other relief. First Amended Complaint (“FAC”) (ECF No. 25). 22 Defendants have not made an appearance in this action, and a Clerk’s Default was 23 entered on March 1, 2024 against Defendant Waleed Smoke Shop Inc. and on August 24 20, 2024 against Defendant Waleed Abdul Rashid. (ECF Nos. 34, 48.) Presently 25 pending before the Court is Plaintiff’s second motion for default judgment (ECF No. 52), 26 which was taken under submission without argument pursuant to Local Rules 230(c) and 27 28 1 (g).1 Plaintiff’s first motion for default judgment was denied without prejudice. 4/10/2023 2 Order (ECF No. 27). For the reasons stated below, the Court recommends Plaintiff’s 3 second motion for default judgment be DENIED. 4 I. BACKGROUND 5 A. Factual Background 6 The FAC alleges that since 2020, Plaintiff has marketed and sold glass infusers 7 and related accessories using the well-known “Stündenglass” trademark. FAC ¶ 7. 8 Plaintiff is the rightful owner of three federally registered trademarks: (1) U.S. Trademark 9 Registration Number 6,633,884 for “the standard character mark ‘Stündenglass’ in 10 association with goods further identified in registration in international class 011”; 11 (2) U.S. Trademark Registration Number 6,174,292 for “the design plus words mark ‘S’ 12 and its logo in association with goods further identified in the registration in international 13 class 034”; and (3) U.S. Trademark Registration Number 6,174,291 for “the standard 14 character mark ‘Stündenglass’ in association with goods further identified in registration 15 in international class 034.”2 FAC ¶ 11. 16 Plaintiff has used the Stündenglass trademarks in commerce continuously 17 throughout the United States since 2020. FAC ¶ 13. Plaintiff alleges the Stündenglass 18 trademarks are “distinctive to both the consuming public and the Plaintiff’s trade” and 19 that products branded with these trademarks are made from “superior materials” that are 20 “readily apparent to consumers” and “industry professionals.” Id. ¶ 14. Plaintiff alleges 21 the trademarks are exclusive to it and appear clearly on its products, packaging and 22

23 1 This motion is referred to the undersigned pursuant to Local Rule 302(c)(19) and 28 U.S.C. § 636(b)(1)(A). 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 advertisements and that it has expended substantial time, money, and other resources 2 in developing, advertising, and otherwise promoting and protecting its trademarks. 3 Id. ¶¶ 15, 17. Plaintiff alleges it has 3,000 authorized stores in the United States, 4 including in California, selling its products using the Stündenglass trademarks and 5 reaching a vast array of consumers throughout the country. Id. ¶ 20. Plaintiff alleges its 6 products using the Stündenglass trademarks have a higher sales value than non- 7 Stündenglass branded products and because of this, its products are targeted by 8 counterfeiters. Id. ¶¶ 21-22. 9 The FAC alleges Defendants have, and continue to, offer for sale counterfeit 10 products using the Stündenglass trademarks, including reproductions, counterfeits, 11 copies and/or colorable imitations of one or more of the Stündenglass trademarks, 12 without the consent of Plaintiff. FAC ¶¶ 26-28. Specifically, the FAC alleges that on 13 October 20, 2022, Plaintiff’s investigator “purchased a Glass Infuser with Stündenglass 14 [tradem]arks affixed to it” from Defendants for $324.73 and that “it was a Counterfeit 15 product in that it displayed” the three Stündenglass trademarks. Id. ¶ 31. Plaintiff alleges 16 Defendants’ “Counterfeit Good contained all three of [Plaintiff’s] [trade]marks” and that 17 Defendants’ use of the “Counterfeit [trademarks] is “substantially indistinguishable” or 18 “identical” to Plaintiff’s trademarks. Id. ¶ 32. Plaintiff further alleges Defendant Rashid 19 “authorized, directed, and/or participated in” Defendant Waleed Smoke Shop’s “offer for 20 sale, in commerce, of the Counterfeit Goods” and that Defendant Rashid’s “acts were a 21 moving, active, and conscious force behind” Defendant Waleed Smoke Shop’s 22 infringement of the Stündenglass trademarks. Id. ¶ 34. Plaintiff alleges the use of the 23 counterfeit good “began after the registration of the Stündenglass trademarks” without 24 the consent of Plaintiff. Id. ¶ 35. 25 Plaintiff contends it has suffered losses and damage to the goodwill and 26 reputation of its trademarks because of Defendants’ acts, which “was, and is, likely to 27 cause confusion or to cause mistake and/or deceive consumers who purchase the 28 Counterfeit Goods.” FAC ¶¶ 37-38, 45-47. Plaintiff prays for statutory and treble 1 damages; costs; an order enjoining Defendants’ sale of any counterfeit product using 2 Plaintiff’s Stündenglass trademarks and an order for destruction of products bearing the 3 Stündenglass trademarks; and an accounting and disgorgement of profits/restitution, 4 among other relief. FAC at 17-19. 5 B. Procedural Posture 6 Plaintiff filed a complaint on November 17, 2023, asserting claims against 7 Defendants for Federal Trademark Counterfeiting and Infringement, 15 U.S.C. § 1114 8 and Federal False Designation of Origin and Unfair Competition, 15 U.S.C. § 1125(a). 9 Compl. (ECF No. 1.) On March 29, 2023, Plaintiff requested the entry of default as to 10 Defendants, which the Clerk of the Court entered on April 5, 2023. (ECF Nos. 11, 13.) 11 On April 10, 2023, Magistrate Judge Kendall J. Newman denied without prejudice 12 Plaintiff’s motion for default judgment, vacated the defaults entered against each 13 Defendant, and granted Plaintiff an opportunity to file an amended complaint to address 14 the deficiencies identified. 4/10/2023 Order (ECF No. 27). Specifically, the April 10, 2023 15 Order denied Plaintiff’s motion for default judgment for failure to satisfy the second and 16 third Eitel factors because the complaint did not sufficiently allege the elements for 17 Defendants’ use of Plaintiff’s trademarks and the likelihood of confusion required to 18 establish claims for trademark infringement and false designation of origin. 4/10/2023 19 Order at 4-6. On January 15, 2024, Plaintiff filed the operative First Amended Complaint 20 against Defendants alleging the same claims as his initial complaint. See FAC. 21 On February 27, 2024, Plaintiff requested the entry of default as to Defendant 22 Waleed Smoke Shop, which the Clerk of the Court entered on March 1, 2024. (ECF Nos. 23 33, 34.) On February 27, 2024, the district judge granted Plaintiff’s first extension of time 24 to perfect service on Defendant Rashid. (ECF No. 32.) On April 22, 2024, the district 25 judge granted Plaintiff’s second extension of time to perfect service on Defendant 26 Rashid. (ECF No. 39.) On May 23, 2024, the district judge granted Plaintiff’s third 27 extension of time to perfect service on Defendant Rashid. (ECF No. 43.) On August 12, 28 2024, Plaintiff requested the entry of default as to Defendant Rashid, which the Clerk of 1 the Court entered on August 20, 2024. (ECF Nos. 45, 48.) 2 On December 30, 2024, Plaintiff filed its second motion for default judgment. 3 (ECF No. 50.) On January 2, 2025, the district judge directed Plaintiff to comply with 4 Local Rules 302(c)(19), and re-notice the motion for default judgment before the 5 undersigned. (ECF No. 51.) On January 27, 2025, Plaintiff filed the pending motion for 6 default judgment. Pl. Second Mot.(ECF No. 52.) On March 5, 2025, the undersigned 7 issued a Minute Order vacating the hearing because Plaintiff had not served Defendants 8 with the pending motion for default judgment and ordered Plaintiff to file a proof of 9 service that Defendants were served with the correct motion with the correct hearing 10 date and with a copy of the Minute Order. (ECF No. 55.) On March 11, 2025, Plaintiff 11 filed a certificate of service that Defendant Waleed Smoke Shop was served with the 12 pending motion for default judgment by mail on March 10, 2025. (ECF No. 56.) The 13 certificate of service did not indicate Defendant Rashid was served with the pending 14 motion or that Defendants were served with a copy of the 3/5/2025 Minute Order. (Id.) 15 Defendants did not respond to the motion for default judgment. See Docket. 16 II. LEGAL STANDARDS 17 Under Federal Rule of Civil Procedure 55, default may be entered against a party 18 against whom a judgment for affirmative relief is sought who fails to plead or otherwise 19 defend against the action. See Fed. R. Civ. P. 55(a). However, this default does not 20 automatically entitle the plaintiff to a judgment. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. 21 Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citations omitted). The decision to grant or deny 22 the entry of default judgment is within the district court’s discretion. NewGen, LLC v. 23 Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016). 24 In determining whether to enter default judgment, courts consider the following 25 factors: 26 1. the possibility of prejudice to the plaintiff; 27 2. the merits of the substantive claim(s); 28 3. the sufficiency of the complaint; 1 4. the amount of money at stake in the lawsuit; 2 5. whether there are any disputes of material fact; 3 6. whether the defendant’s default was due to excusable neglect; and 4 7. the strong policy favoring decisions on the merits. 5 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The Ninth Circuit has long 6 disfavored default judgments, counseling that cases be decided on the merits “whenever 7 reasonably possible.” Id. at 1472. 8 Once a default is entered, all well-pled allegations in the complaint regarding 9 liability are deemed true. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 10 2002). “On the other hand, a defendant is not held to admit facts that are not well- 11 pleaded or to admit conclusions of law.” United States v. Cathcart, 2010 WL 1048829, at 12 *4 (N.D. Cal. Feb. 12, 2010) (citation omitted). “[I]t follows from this that facts which are 13 not established by the pleadings of the prevailing party, or claims which are not well- 14 pleaded, are not binding and cannot support the judgment.” Danning v. Lavine, 572 F.2d 15 1386, 1388 (9th Cir. 1978). Necessary facts not contained in the pleadings and claims 16 which are legally insufficient are not established by default. DIRECTV, Inc. v. Hoa 17 Huynh, 503 F.3d 847, 854 (9th Cir. 2007). Further, a plaintiff’s allegations regarding 18 damages are not deemed true at default, and the plaintiff bears the burden to prove 19 damages with evidence. See Fed. R. Civ. P. 55(b)(2)(C); Geddes v. United Fin. Grp., 20 559 F.2d 557, 560 (9th Cir. 1977). 21 III. DISCUSSION 22 A. Jurisdiction 23 When default judgment is sought, the “district court has an affirmative duty to look 24 into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 25 712 (9th Cir. 1999) (citations omitted). The Court has subject matter jurisdiction over this 26 action pursuant to 28 U.S.C. § 1331 because it arises under federal trademark law, 27 15 U.S.C. § 1051, et seq. In addition, the Court has personal jurisdiction over Defendant 28 Rashid, who is alleged to be a California resident (FAC ¶ 6), and Defendant Waleed 1 Smoke Shop, who is alleged to be a California corporation with a principal place of 2 business in California (FAC ¶ 5). The Court’s jurisdiction analysis is not a finding that the 3 claims are sufficiently pled. 4 B. Default Judgment 5 1. Service of Complaint 6 In reviewing a motion for default judgment, the Court must determine whether 7 Defendants were properly served with the summons and complaint. Fed. R. Civ. P. 4(c). 8 Under California law, “[a] summons may be served on a corporation by delivering a copy 9 of the summons and the complaint” on an authorized agent by personal delivery. 10 Cal. Civ. Proc. §§ 415.10, 416.10. On January 17, 2024, a third-party process server 11 properly served Defendant Waleed Smoke Shop with the FAC and summons. (ECF No. 12 27.) In addition, Rule 4(e) of the Federal Rules of Civil Procedures allows for service of 13 an individual by “delivering a copy of the summons and of the complaint to the individual 14 personally.” Fed. R. Civ. P. 4(e)(2)(A). On July 8, 2024, a third-party process server 15 personally served Defendant Rashid with the FAC and summons. (ECF No. 44.) 16 2. Eitel Factors 17 For the following reasons, the Court finds that the Eitel factors weigh against 18 granting default judgment against Defendants. Specifically, the Court finds the FAC is 19 deficient in several respects and fails to state a claim under the second and third Eitel 20 factors. Moreover, Plaintiff has failed to cure the deficiencies identified in the April 10, 21 2023 Order where Plaintiff failed to sufficiently establish Defendants’ use of Plaintiff’s 22 trademarks and the likelihood of confusion elements required to establish claims for 23 trademark infringement and false designation of origin. 4/10/2023 Order at 4-6. 24 The second and third Eitel factors, which are often analyzed together, consider 25 the substantive merits of a plaintiff's claim and the sufficiency of its pleadings. PepsiCo, 26 Inc., 238 F. Supp. 2d at 1175. The issue on default judgment is “whether the allegations 27 in the complaint are sufficient to state a claim on which the [plaintiff] may recover.” 28 Danning, 572 F.2d at 1388. In reviewing a default judgment, a court must take the well- 1 pleaded factual allegations of the complaint as true. Cripps v. Life Ins. Co. of N. Am., 980 2 F.2d 1261, 1267 (9th Cir. 1992). “However, necessary facts not contained in the 3 pleadings, and claims which are legally insufficient, are not established by default.” Id. 4 Plaintiff asserts two claims in this action: (1) trademark counterfeiting and 5 infringement under 15 U.S.C. § 1114, and (2) false designation of origin and unfair 6 competition under 15 U.S.C. § 1125(a). FAC at 14-17. The Court addresses each in turn. 7 a) Trademark Infringement and Counterfeiting 8 To state a claim for trademark infringement, a plaintiff must adequately allege it is 9 the owner of a valid, protectable mark, and the alleged infringer is using a similar mark 10 that is likely to confuse. See Grocery Outlet Inc. v. Albertson’s Inc., 497 F.3d 949, 951 11 (9th Cir. 2007). Courts determine the likelihood of confusion by considering: (1) the 12 strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) the 13 evidence of actual confusion; (5) the marketing channels used; (6) the type of goods and 14 degree of care consumers are likely to exercise in purchasing them; (7) the intent of the 15 defendant in selecting the mark; and (8) the likelihood that the parties will expand their 16 product lines. Lodestar Anstalt v. Bacardi & Co. Ltd., 31 F.4th 1228, 1252 (9th Cir. 2022) 17 (citing AMF Incorporated v. Sleekcraft Boats, 599 F.2d 341, 348-54 (9th Cir. 1979), 18 abrogated on other grounds by Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792 19 (9th Cir. 2003)). When analyzing a claim brought under a counterfeiting theory, courts 20 need not engage in a likelihood of confusion analysis because a defendant who 21 “deliberately copies the dress of his competitors already in the field…raises a 22 presumption that customers will be deceived.” Louis Vuitton Malletier, S.A. v. Akanoc 23 Sols., Inc., 658 F.3d 936, 946 (9th Cir. 2011) (citations omitted). Instead, courts examine 24 whether the defendant used a non-genuine mark identical to or substantially 25 indistinguishable from the plaintiff’s registered, genuine mark, and the genuine mark was 26 registered for use on the same goods to which the infringer applied the non-genuine 27 mark. Id. 28 First, the FAC adequately alleges the existence of one or more valid trademarks 1 to support Plaintiff’s claim for trademark infringement and counterfeiting. The FAC 2 alleges Plaintiff owns the following three registered trademarks: (1) U.S. Trademark 3 Registration Number 6,633,884 for “the standard character mark ‘Stündenglass’ in 4 association with goods further identified in registration in international class 011”; 5 (2) U.S. Trademark Registration Number 6,174,292 for “the design plus words mark ‘S’ 6 and its logo in association with goods further identified in the registration in international 7 class 034”; and (3) U.S. Trademark Registration Number 6,174,291 for “the standard 8 character mark ‘Stündenglass’ in association with goods further identified in registration 9 in international class 034.” FAC ¶ 11. Registration of a mark on the Principal Register in 10 the Patent and Trademark Office constitutes prima facie evidence of the validity of the 11 registered mark. Applied Info. Scis. Corp. v. eBAY, Inc., 511 F.3d 966, 970 (9th Cir. 12 2007). However, even accepting all well-pled factual allegations as true as required for 13 default judgment motions, the FAC does not allege sufficient facts to support plausible 14 allegations that Defendants used Plaintiff’s trademarks in an infringing or counterfeiting 15 manner. 16 Second, despite being expressly warned that its prior complaint was deficient, the 17 FAC continues to be deficient and lacks sufficient factual allegations to plausibly 18 conclude Defendants used Plaintiff’s trademarks. See 4/10/2023 Order; see also GS 19 Holistic, LLC v. J’s Smoke Shop, 2024 WL 1054899, at *2 (E.D. Cal. Mar. 11, 2024) 20 (denying motion for default judgment where, among other things, plaintiff failed to specify 21 which of its three trademarks was used); GS Holistic, LLC v. Pudasaini, 2024 WL 22 710890, at *4 (N.D. Cal. Feb. 21, 2024) (same); GS Holistic, LLC v. Bubbles Smoke 23 Shop, 2023 WL 6787773, at *3 (C.D. Cal. Sept. 5, 2023) (same). The FAC states that on 24 October 20, 2022, Plaintiff’s investigator “observed that [Defendant’s location] had an 25 excess of Glass Infusers which displayed the Stündenglass Trademarks” and that the 26 “investigator purchased a Glass Infuser with a Stündenglass Marks affixed to it, from 27 [Defendant Waleed Smoke Shop], for a cost of $324.73[.]” FAC ¶ 31. Although Plaintiff 28 alleges that all three trademarks were applied to the glass infuser purchased at 1 Defendants’ store, and includes photographs of these trademarks, Plaintiff fails to 2 address how one single product could infringe on two different international classes of 3 goods. While Plaintiff’s motion provides that Defendant’s glass infuser includes all three 4 trademarks and that “Plaintiff’s products are both glass infusers” that can be “used either 5 for smoking purposes or infusing foods and drinks” this does not adequately address 6 how all three trademarks are on Defendant’s single product. Pl. Second Mot.at 16. In 7 addition, review of the photographs attached to the FAC indicate Defendant’s product is 8 utilized for smoking and does not indicate it can be used as a food and beverage infuser. 9 See FAC (ECF No. 52-6). Plaintiff also does not address this discrepancy, which is 10 problematic given Plaintiff seeks damages for infringement as to all three trademarks. 11 Thus, the FAC is deficient for lack of necessary facts. See DIRECTV, 503 F.3d at 854; 12 see also GS Holistic, LLC v. J’s Smoke Shop, 2024 WL 1054899, at *2 (denying motion 13 for default judgment where, among other things, plaintiff failed to specify which of its 14 three trademarks was used); GS Holistic, LLC v. Pudasaini, 2024 WL 710890, at *4) 15 (same); GS Holistic, LLC v. Bubbles Smoke Shop, 2023 WL 6787773, at *3 (same). 16 Third, the FAC alleges Plaintiff’s investigator purchased a glass infuser with 17 Stündenglass trademarks “affixed to it” from Defendants and that “it was a Counterfeit 18 product in that it displayed the Infringing Marks [].” FAC ¶ 31. As pled, the FAC is vague 19 and conclusory as to the process Plaintiff’s investigator undertook to confirm the 20 similarities in the trademarks and does not clarify, as other courts have noted, whether 21 Defendants are merely reselling Plaintiff’s products and therefore not a counterfeit 22 product, which would not constitute an infringement. See GS Holistic, LLC v. Ravens 23 Smoke Shop, Inc., 2023 WL 5504964, at *5 (citing NEC Electronics v. CAL Circuit Abco, 24 810 F.2d 1506, 1509 (9th Cir. 1987) (noting that the sale of a genuine trademarked 25 product by an unauthorized seller is not a violation of the Lanham Act)); see also GS 26 Holistic, LLC v. Bubbles Smoke Shop, 2023 WL 6787773, at *5 (same). Further, mere 27 assertions that the glass infuser sold by Defendant is “a Counterfeit product in that it 28 displayed the Infringing Marks” are conclusory and not taken as true. See Paulsen v. 1 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009) (the court is not required to accept as true 2 legal conclusions in a complaint “merely because they are cast in the form of factual 3 allegations”); see also GS Holistic, LLC v. Cigarette Outlet Smoke Shop, 2024 WL 4 519783, at *2 (E.D. Cal. Feb. 9, 2024) (denying plaintiff’s motion for default judgment for, 5 among other reasons, the complaint’s reliance on conclusory statements that “the Glass 6 Infuser [defendant] sold to Plaintiff’s investigator was a Counterfeit Good with an 7 Infringing Mark affixed to it”). 8 Fourth, although the FAC alleges Defendant’s “use of the counterfeit 9 Stündenglass Trademarks began after the registration of the Stündenglass Trademarks” 10 (FAC ¶ 35), it does not allege when this use allegedly began—much less provide any 11 other details about Defendants’ allegedly infringing actions. The Court cannot supply 12 necessary facts that are omitted from the FAC. See DIRECTV, 503 F.3d at 854; see also 13 GS Holistic, LLC v. Puff+ LLC, 2024 WL 659362, at *3 (E.D. Cal. Feb. 16, 2024) 14 (rejecting plaintiff’s default judgment motion where the complaint lacked details regarding 15 the defendant’s alleged use where only one instance was alleged); GS Holistic, LLC v. 16 Ashes Plus Nine, 2023 WL 5993055, at *4 (N.D. Cal. Aug. 25, 2023) (same). 17 Fifth, the FAC does not allege sufficient facts to support a plausible claim for 18 infringement as to a consumer’s likelihood of confusion. The FAC makes conclusory 19 allegations stating that Defendants “used images and names identical to or confusingly 20 similar to the Stündenglass Marks, to confuse customers and aid in the promotion and 21 sales of Counterfeit Goods”, the “Infringing Goods travel in identical channels of trade 22 and are sold to identical consumers as Stündenglass genuine goods”, and that the 23 “Infringing Marks affixed to the Counterfeit Goods that [Defendant Waleed Smoke Shop] 24 has distributed, provided, marketed, advertised, promoted, offered for sale, and/or sold, 25 is confusingly identical or similar to the Stündenglass Marks that [Plaintiff] affixes to its 26 Glass Infusers.” FAC ¶¶ 39-41. Such conclusory allegations lacking in factual support 27 are insufficient for purposes of default judgment. See Paulsen, 559 F.3d at 1071; 28 DIRECTV, 503 F.3d at 854; see also GS Holistic, LLC v. Bubbles Smoke Shop, 2023 1 WL 6787773, at *4 (denying default judgment because the complaint failed to allege 2 facts supporting a Sleekcraft analysis and relied on conclusory statements about the 3 likelihood of confusion). While Plaintiff’s motion makes passing reference to the 4 Sleekcraft factors and provides photographs (see Pl. Second Mot.at 15 and ECF No. 52- 5 6), like many other cases that have been brought by Plaintiff, there is no effort to apply 6 the applicable legal standards to this case. See, e.g., GS Holistic, LLC v. Linda, 2023 7 WL 8878140, at *3 (E.D. Cal. Dec. 22, 2023) (denying motion for default judgment 8 where, among other things, the motion relied on similarly conclusory assertions about 9 the likelihood of confusion). 10 Finally, as to the alleged sale of a counterfeit good, the FAC fails to state a claim 11 because it does not adequately allege that Defendants sold a counterfeit product. 12 Instead, the FAC relies on wholly conclusory allegations, such as allegations that 13 Defendants’ glass diffuser “was a Counterfeit product in that it displayed the Infringing 14 Marks.” FAC ¶ 31. Nor does the FAC explain the types of goods Defendants have sold in 15 the past, other than one glass infuser sold to Plaintiff’s investigator on October 20, 2022. 16 Id. Thus, the FAC is deficient on Plaintiff’s counterfeit theory as well. See GS Holistic, 17 LLC v. J’s Smoke Shop, 2024 WL 1054899, at *2 (rejecting counterfeit theory on default 18 judgment motion because of the complaint’s failure to allege facts supporting the claim 19 and otherwise reliance on conclusory assertions that defendant’s goods were 20 counterfeit). 21 b) False Designation of Origin and Unfair Competition 22 To establish a claim for false designation of origin under 15 U.S.C. § 1125(a), a 23 plaintiff must show the defendant used a false designation of origin in interstate 24 commerce that is likely to cause confusion, mistake, or deception as to the origin, 25 sponsorship, or approval of defendants’ goods or services. Freecycle Network, Inc. v. 26 Oey, 505 F.3d 898, 902 (9th Cir. 2007). Claims for false designation of origin, as a type 27 of unfair competition claim, are analyzed similarly to infringement claims because the 28 “ultimate test” for these claims are the same: the public’s likelihood of confusion. Jada 1 Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 632 (9th Cir. 2008) (using the same likelihood of 2 confusion test to analyze trademark infringement and false designation of origin claims); 3 see also Brookfield Commc’ns, Inc. v. W. Coast Ent. Corp., 174 F.3d 1036, 1046 (9th 4 Cir. 1999) (considering false designation of origin claim as one of “unfair competition”); 5 Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111, 1122-23 6 (6th Cir. 1996) (“[F]alse designation is simply a species of unfair competition.”) (citing 7 McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 923 (Fed. Cir. 1995)). 8 Here, the Court has already determined the FAC is deficient on the likelihood of 9 confusion element for the infringement claim. Plaintiff relies on the exact same 10 allegations for its false designation of origin claim. Pl. Second Mot.at 14-17. Thus, the 11 result is the same for the false designation of origin claim brought under 15 U.S.C. 12 § 1125(a). See Jada, 518 F.3d at 632; see also GS Holistic, LLC v. J’s Smoke Shop, 13 2024 WL 1054899, at *3 (denying default judgment motion on plaintiff’s false designation 14 claim on the same grounds as on the infringement claim—for failure of the complaint to 15 state sufficient claims and failure on the merits); GS Holistic, LLC v. Puff N Go Gift Shop 16 LLC, 2023 WL 4146232, at *5 (N.D. Cal. June 22, 2023) (same). 17 For the foregoing reasons, Plaintiff has failed to establish the second and third 18 Eitel Factors and its motion for default judgment should be denied for failure to state a 19 claim under 15 U.S.C. §§ 1114 and 1125(a). 20 C. Federal Actions Related to Plaintiff’s Stündenglass Trademarks 21 Plaintiff has brought many similar, if not identical, claims about its Stündenglass 22 trademarks against other defendants. See GS Holistic, LLC v. Mr Vape Smoke Shop, 23 2024 WL 4545885, at *3 (E.D. Cal. Oct. 22, 2024) (collecting cases). Numerous courts in 24 the Ninth Circuit have found vague and conclusory allegations made by Plaintiff to be 25 insufficient to grant default judgment. See GS Holistic, LLC v. Puff+ LLC, 2024 WL 26 659362, at *3 (collecting cases where motion for default judgment was denied due to GS 27 Holistic’s wholly insufficient pleadings and motion); GS Holistic, LLC v. Kings 28 Smokeshop, 2024 WL 150217, at *2 (E.D. Cal. Jan. 12, 2024) (denying motion for 1 default judgment because the complaint “has not satisfied the second and third Eitel 2 factors; i.e., the merits of plaintiff’s substantive claim and the sufficiency of the 3 complaint”); GS Holistic, LLC v. Ashes Plus Nine, 2023 WL 5993055, at *5 (“[T]his Court 4 and other district courts in this Circuit have found similar (if not almost identical) 5 allegations by GS Holistic equally insufficient”); GS Holistic, LLC v. Ravens Smoke 6 Shop, Inc., 2023 WL 5504964, at *4 (C.D. Cal. July 10, 2023) (“As currently pled, these 7 factual allegations are vague and conclusory, and need not be accepted as true.”); GS 8 Holistic, LLC v. Alien Smoke Shop, 2023 WL 3402589, at *1 (C.D. Cal. Mar. 17, 2023) 9 (“Plaintiff’s allegations of infringement here are insufficient to support a finding that 10 defendants willfully infringed plaintiff’s trademarks”). 11 The undersigned is aware that other courts—including those in this district—have 12 granted motions for default judgment on substantially similar complaints and motions 13 filed by this Plaintiff. See GS Holistic, LLC v. AA 110, 2024 WL 2848455, at *7 (E.D. Cal. 14 June 5, 2024) (granting motion for default judgment in part, but limiting damages to 15 $5,000), report and recommendation adopted sub nom. 2024 WL 3396380 (E.D. Cal. 16 July 12, 2024); GS Holistic, LLC v. Nasher, 2024 WL 1994702, at *1 (E.D. Cal. May 6, 17 2024) (same); GS Holistic, LLC v. Habib’s Disc., 2023 WL 8644103, at *7 (E.D. Cal. Dec. 18 14, 2023) (granting motion for default and awarding $75,000 in damages), report and 19 recommendation adopted sub nom. 2024 WL 495139 (E.D. Cal. Feb. 8, 2024). The 20 undersigned respectfully disagrees, and follows the approach of the many courts that 21 have denied similar motions for default judgment brought by GS Holistic. See, e.g., GS 22 Holistic, LLC v. Puff+ LLC, 2024 WL 659362, at *3; GS Holistic, LLC v. Kings 23 Smokeshop, 2024 WL 150217, at *2; GS Holistic, LLC v. Ashes Plus Nine, 2023 WL 24 5993055, at *5; GS Holistic, LLC v. Ravens Smoke Shop, Inc., 2023 WL 5504964, at *4; 25 GS Holistic, LLC v. Alien Smoke Shop, 2023 WL 3402589, at *1. 26 D. Failure to State a Claim 27 District courts have discretion whether to enter a default judgment. Aldabe v. 28 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Where a complaint fails to state a claim, 1 default judgment may not be entered. See Aldabe, 616 F.2d at 1092 (affirming the 2 district court’s denial of default judgment where plaintiff’s claims lacked merit); DirecTV, 3 Inc., 503 F.3d at 854-56 (holding “[t]he district court properly refused to grant default 4 judgment” where a plaintiff’s complaint was not well-pleaded and instead provided only 5 “legal conclusions” that were “not held to have admitted through default.”). Accordingly, 6 because Plaintiff has failed to state a claim as to trademark counterfeiting and 7 infringement under 15 U.S.C. § 1114, and false designation of origin and unfair 8 competition under 15 U.S.C. § 1125(a), the Court recommends default judgment be 9 DENIED. 10 E. Dismissal without Leave to Amend 11 Plaintiff has failed to cure the deficiencies of its claims despite being informed of 12 the deficiencies and being provided ample opportunity to do so. See 4/10/2023 Order. 13 Accordingly, the Court finds further amendment would be futile. See Zucco Partners, 14 LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (affirming district court’s 15 dismissal with prejudice “where the plaintiff has previously been granted leave to amend 16 and has subsequently failed to add the requisite particularity to its claims, ‘the district 17 court’s discretion to deny leave to amend is particularly broad.’“). Here, Plaintiff’s FAC 18 continues to rely on conclusory allegations that are insufficient to state a claim despite 19 awareness of the applicable legal standards and deficiencies in its prior pleading. 20 Therefore, the Court recommends Plaintiff’s FAC be DISMISSED without leave to 21 amend. 22 IV. CONCLUSION 23 For the reasons set forth above, it is HEREBY RECOMMENDED that: 24 1. Plaintiff’s motion for default judgment (ECF No. 52) be DENIED; 25 2. The First Amended Complaint (ECF No. 25) be DISMISSED without leave to 26 amend; and 27 3. The Clerk of the Court be directed to close this action. 28 These findings and recommendations are submitted to the United States District 1 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 2 | 14 days after being served with these findings and recommendations, any party may file 3 || written objections with the Court and serve a copy on all parties. This document should 4 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 5 || reply to the objections shall be served on all parties and filed with the Court within 14 6 | days after service of the objections. Failure to file objections within the specified time 7 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 8 || 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 9 10 | Dated: July 21, 2025 C i $ 11 CHI SOO KIM 12 | 4, gsho2086.22 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16