United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION GRANTING DAMAGES, ATTORNEY'S FEES, AND COSTS TO PLAINTIFF
GLEN H. DAVIDSON, Senior District Judge.
On August 6, 2013, Plaintiff filed this action against Defendants, asserting the following claims under the Lanham Act, 60 Stat. 427, as amended, 15 U.S.C. § 1051 et seq. :  trademark infringement (15 U.S.C. § 1114(1)(a));  false designation of origin (15 U.S.C. § 1125(a));  a violation of the Anticybersquatting Consumer Protection Act ("ACPA") (15 U.S.C. § 1125(c)); and  trademark dilution(15 U.S.C. § 1125(c)). See Pl.'s Compl. . On August 15, 2013, Plaintiff personally served its summons and complaint upon Defendant Chance Wiygul individually, and served Defendant Columbus Crossfitness, LLC by and through its registered agent Chance Wiygul. Neither Defendant filed an answer or otherwise responded to Plaintiffs complaint or the motion for default judgment. Thus, the Court granted Plaintiffs motion for default judgment and for permanent injunction. See Ct.'s Order  & Mem. Op.  Granting Mot. Default J. & Permanent Injunction. The Court deferred ruling on the amount of damages, attorney's fees, and costs, finding that such damages, attorney's fees, and costs were neither sums certain nor sums that could be made certain by computation, and thus, that a hearing was necessary as provided by Rule 55(b)(2) of the Federal Rules of Civil Procedure. Accordingly, a hearing to determine damages, attorney's fees, and costs was held on May 29, 2014. Defendants failed to appear. Subsequent to the hearing, Plaintiff requested and was granted leave to file amended affidavits and documentation supporting its request for damages, attorney's fees, and costs, on the ground that the earlier requests had mathematical errors. Upon due consideration, the Court finds as follows:
Defendants, by failing to answer or otherwise respond to Plaintiffs complaint, have admitted the well pleaded allegations of the complaint and are precluded from contesting the established facts on appeal. Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (citations omitted). According to Plaintiffs allegations, which the Court must accept as true, Plaintiff has developed a revolutionary fitness training regimen that it licenses to affiliates who have received appropriate particularized training and a certificate from Plaintiff. Defendants offered fitness training services under the names "CrossFitness" and "CrossFitness 24/7" to offer and promote their services, despite that neither Defendant is a CrossFit affiliate and CrossFit has never authorized Defendants' use of the CrossFit Marks or infringing terms. Defendants offer services on the Internet through its website and Facebook page which describe Defendants' exercise programs by using the infringing terms. Defendants' use of the infringing terms created the false impression that Defendants are licensed CrossFit affiliates and/or certified CrossFit trainers, which created consumer confusion. In sum, Defendants have violated the previously stated provisions of the Lanham Act.
In the complaint, Plaintiff requested the following damages award:
(a) an amount equal to the actual damages suffered by [Plaintiff] as a result of the infringement of its proprietary trademark and in excess of $100, 000;
(b) an amount equal to the profits earned by Defendants as a result of their infringement;
(c) an amount equal to three times the monetary award assessed in view of Defendants' willful and wanton infringement;
(d) in the alternative as may be elected by [Plaintiff], pursuant to Lanham Act Section 35, 15 U.S.C. § 1117(c), statutory damages for each of Defendants' willful acts of infringement;
(e) pre-judgment interest and post-judgment interest; [and]
(f) an award of punitive damages for intentional and willful acts[.]
Pl.'s Compl.  at 11.
In its motion for default judgment and in the hearing, Plaintiff concedes that it cannot precisely calculate its actual damages and Defendants' profits resulting from Defendants' unlawful infringement of Plaintiff's mark. However, Plaintiff believes that a conservative, reasonable estimate of profits and treble damages, given the willful conduct of the Defendants, is $61, 131.80, as Plaintiff asserts that Defendants' past and ongoing conduct is damaging to Plaintiff's reputation and goodwill, and further supports the requested amount. See Pl.'s Mem. Br. Supp. Mot. Default J.  at 23.
Under the Lanham Act, actual damages may include injury to Plaintiff's goodwill and business reputation. 15 U.S.C. § 1125(c). Courts have discretion to award damages for a violation of the Lanham Act up to three times the amount of actual damages. 15 U.S.C. § 1117(a). The Fifth Circuit recognizes that "[g]reat latitude is given [to] the district court in awarding damages under the Lanham Act." Martin's Herend Imports, Inc. v. Diamond & Gem Trading USA, Co., 112 F.3d 1296, 1304 (5th Cir. 1997). Furthermore, the Fifth Circuit notes that enhancement of a damages award "could, consistent with the principles of equity' [ ], provide proper redress to an otherwise undercompensated plaintiff where imprecise damage ...