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Anytime Fitness, LLC v. Michael Roberts and Mraenterprises

April 23, 2013

ANYTIME FITNESS, LLC,
PLAINTIFF,
v.
MICHAEL ROBERTS AND MRAENTERPRISES, DEFENDANTS.



The opinion of the court was delivered by: Susan Richard Nelson United States District Court Judge

ORDER GRANTING ANYTIME FITNESS, LLC'S MOTION FOR ENTRY OF DEFAULT JUDGMENT

The above-entitled action came on for hearing before the undersigned on April 10, 2013, pursuant to Plaintiff Anytime Fitness, LLC's Motion for Entry of Default Judgment [Doc. No. 9] against Defendants Michael Roberts and MRA Enterprises. Glenna L. Gilbert, Esq. appeared on behalf of the Plaintiff. The Defendants have not answered the Complaint or otherwise defended in this action.

Based upon all of the files, records, and proceedings herein and the arguments of counsel, the Court being duly advised in the premises now makes the following:

FINDINGS OF FACT

1. Plaintiff Anytime Fitness, LLC ("Anytime Fitness") personally served Defendants Michael Roberts and MRA Enterprises (collectively, "Defendants") with a copy of the Summons and Complaint on November 27, 2012 when it personally served Michael Roberts, individually and as owner of MRA Enterprises.

2. Defendants have failed to answer, plead, or otherwise respond to Anytime Fitness's Complaint.

3. The Clerk of Court entered default against Defendants on December 28, 2012.

4. Anytime Fitness provides a service that enables its franchisees and employees to access electronic mail offered over the Internet. Anytime Fitness establishes email accounts for its franchisees and employees under the anytimefitness.com domain name. Users can send and receive emails through their email accounts. The majority of Anytime Fitness's franchisees use their Anytime Fitness email accounts as their primary tool for communicating via the Internet with their respective customers, prospective customers, vendors and other businesses, and Anytime Fitness's corporate offices.

5. Between May 2011 and June 2012, Defendants sent at least 8,337 unsolicited commercial email messages to Anytime Fitness franchisees and employees that use Anytime Fitness's email service ("Defendants' unsolicited commercial email messages").

6. None of Defendants' unsolicited commercial email messages contained a clear and conspicuous notice that they were advertisements.

7. None of Defendants' unsolicited commercial email messages sent in the months of May 2011, September 2011, October 2011, November 2011, January 2012, February 2012, March 2012, and June 2012 advised recipients of their right to opt out or decline to receive further commercial messages from Defendants.

8. None of Defendants' unsolicited commercial email messages contained a valid physical postal address for Defendants.

9. Anytime Fitness is the sole owner and licensor of the ANYTIME FITNESS trademark for health and fitness club services.

10. Anytime Fitness has extensively and continuously used its ANYTIME FITNESS trademark throughout the United States since 2002.

11. The ANYTIME FITNESS trademark has been registered on the Principal Register of the United States Patent and Trademark Office since February 10, 2004.

12. Anytime Fitness is the sole owner and licensor of the trademark

(known as the "Running Man Logo") for health and fitness club services.

13. Anytime Fitness has extensively and continuously used the Running Man Logo trademark throughout the United States since 2002.

14. The Running Man Logo trademark has been registered on the Principal Register of the United States Patent and Trademark Office since October 2, 2007.

15. Defendants repeatedly used the ANYTIME FITNESS trademark in Defendants' unsolicited commercial email messages to advertise and promote the products and services offered by Defendants.

16. Defendants used the Running Man Logo trademark in its unsolicited commercial email messages sent in May 2011 to advertise and promote Defendants' products and services.

17. Defendants used the ANYTIME FITNESS trademark in website postings posted in July 2012, August 2012, and September 2012 that advertised Defendants' products and services.

18. None of Defendants' uses of the ANYTIME FITNESS trademark and Running Man Logo trademark were authorized by Anytime Fitness.

19. Anytime Fitness sent a cease and desist letter to Defendants on May 24, 2011 ("first cease and desist letter"). The first cease and desist letter notified Defendants that their use of the ANYTIME FITNESS trademark and the Running Man Logo trademark constituted trademark infringement and demanded that Defendants immediately terminate their use of Anytime Fitness's trademarks.

20. Anytime Fitness sent a second cease and desist letter to Defendants on September 7, 2011 ("second cease and desist letter"). The second cease and desist letter again notified Defendants of their trademark infringement and demanded that Defendants ...


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