N.D. Ga.

Defendant Preserves Litigation by Successfully Opening Default In Trademark Infringement Battle

King v. God is Dope, LLC et al, Civil Action No. 1:22-cv-03926-LMM (N.D. Ga., Apr. 10, 2023)

Defendant God is Dope, LLC, succeeded in setting aside default to file an answer in Steven King’s (but not that Stephen King) trademark and unfair competition action, preserving their day in court.

In the Complaint, King alleges the Defendant infringes his mark by using the phrase “God is Dope” without authorization. King further alleges the United States Patent and Trademark Office granted him a valid trademark on the word mark, “IF LOVE IS A DRUG. . .GOD IS DOPE.” Order, at 1. Defendant failed to file a timely response to King’s Complaint, and the Court entered default. Id. at 2. In response, Defendant motioned to set aside default within two weeks of the Court’s entry.


U.S. Reg. No. 4,666,740

Judge Leigh Martin May’s decision to set aside default transformed into a procedural battle, specifically keying in on issue preclusion.

Defendant argued that the claims King brought were litigated and rejected in a prior proceeding before the USPTO Trial and Appeal Board. Id. at 4. In fact, Defendants asserted that “Plaintiff wrongly concealed [the] prior proceeding and that Plaintiff’s failure to address the proceeding could be interpreted as attempts to defraud [the] Court.” Id. (internal quotations omitted).

In response, Plaintiff argued that the USPTO’s ruling had a limited preclusive effect because “he only lost in that . . . proceeding on a technicality (failing to respond to a show cause order) rather than on the merits.” Id. at 4-5.

The Court ultimately found that Defendant adequately showed good cause to set aside default under Fed. R. Civ. P. 55(c), noting, “Plaintiff’s claims may be much more limited than the Complaint sets them out to be,” if the Defendant’s assertions are correct. See id. at 5. The Court elaborated on this point:

“[w]hile Defendants have not fully explained the circumstances of the default, the Court finds there to be good cause shown to allow the case to proceed on the merits. The Court does not find that Defendant’s default was willful or culpable, in part because Defendants appear to have acted quickly to remedy the default by obtaining counsel of record, filing their proposed answer, and filing this motion to set aside default. Additionally, Defendants’ prompt action in response to the default has limited any prejudice to Plaintiff, as it does not appear there has been substantial delay that could create future discovery issues or otherwise unnecessarily complicate the case.”

Id. at 6.

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