MEMORANDUM-DECISION AND ORDERI. INTRODUCTION On July 20, 2017, Plaintiff Heartland Trademarks, Ltd., commenced this action against Defendant Dr. Flax LLC alleging trademark infringement, unfair competition, and deceptive business practices. See Dkt. No. 1. Presently before the Court is Plaintiff’s motion for default judgment and a permanent injunction, which was filed on September 19, 2017. See Dkt. No. 19. For the following reasons, Plaintiff’s motion is granted in part and denied in part.II. BACKGROUNDThe Court presumes the parties’ familiarity with the facts and procedural history of this case and, therefore, recites only those facts necessary to resolve the pending motion. For a fuller statement of the background in this case, the parties are directed to the Court’s August 1, 2017 Memorandum-Decision and Order (“August Order”). In the August Order, the Court granted Plaintiff’s motion for a temporary restraining order and temporarily enjoined Defendant, its agents, employees, and representatives from “(a) using any name or mark that is a colorable imitation of, a variation on, or is confusingly similar to Plaintiff’s FLAX mark; (b) using ‘Dr. Flax’ or any variation thereon as a name, trademark name, domain name, or in any other manner in order to offer, distribute, sell, advertise, or promote its goods.” Dkt. No. 12 at 14. The Court also ordered Defendant to respond to Plaintiff’s request for a preliminary injunction within fourteen days of the August Order. See id. After Defendant failed to respond within fourteen days, the Court granted Plaintiff’s application for a preliminary injunction.III. DISCUSSIONA. Default Judgment Standard“Generally, ‘Federal Rule of Civil Procedure 55 provides a two-step process that the Court must follow before it may enter a default judgment against a defendant.’” United States v. Carpineta, No. 14-CV-0517, 2015 WL 500815, *1 (N.D.N.Y. Feb. 5, 2015) (quotation omitted). “First, under Rule 55(a), when a party fails to ‘plead or otherwise defend…the clerk must enter the party’s default.’” Id. (quotation omitted) (citing Fed. R. Civ. P. 55(a)). “Second, under Fed. R. Civ. P. 55(b)(1), ‘[u]pon request of the plaintiff, a default judgment may be entered by the clerk when (1) the plaintiff’s claim against the defendant is for a sum certain, (2) the plaintiff has submitted an affidavit of the amount due, and (3) the defendant has been defaulted for failure to appear.’” Id.When entry by the clerk is inappropriate, “‘pursuant to Rule 55(b)(2), the party seeking default is required to present its application for entry of judgment to the court.’” United States v. Simmons, No. 10-CV-1272, 2008 WL 685498, *2 (N.D.N.Y. Mar. 2, 2012) (quotation omitted). “‘Notice of the application must be sent to the defaulting party so that it has an opportunity to show cause why the court should not enter a default judgment.’” Id. (quotation omitted); see also Fed. R. Civ. P. 55(b)(2).When seeking a default judgment, the Local Rules require the party to submit an affidavit attesting to the following:1. The party against whom it seeks judgment is not an infant or an incompetent person;2. The party against whom it seeks judgment is not in the military service, or if unable to set forth this fact, the affidavit shall state that the party against whom the moving party seeks judgment by default is in the military service or that the party seeking a default judgment is not able to determine whether or not the party against whom it seeks judgment by default is in the military service;3. The party has defaulted in appearance in the action;4. Service was properly effected under Fed. R. Civ. P. 4;5. The amount shown in the statement is justly due and owing and that no part has been paid except as set forth in the statement this Rule requires; and6. The disbursements sought to be taxed have been made in the action or will necessarily be made or incurred.N.D.N.Y. L.R. 55.2(a).“When a default is entered, the defendant is deemed to have admitted all of the wellpleaded factual allegations in the complaint pertaining to liability.” Bravado Int’l Grp. Merch. Servs. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). “While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation.” Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974) (citations omitted); see also Bravado Int’l, 655 F. Supp. 2d at 189-90 (citation omitted). “[E]ven upon default, a court may not rubber-stamp the non-defaulting party’s damages calculation, but rather must ensure that there is a basis for the damages that are sought.” Overcash v. United Abstract Grp., Inc., 549 F. Supp. 2d 193, 196 (N.D.N.Y. 2008) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). “The burden is on the plaintiff to establish its entitlement to recovery.” Bravado Int’l, 655 F. Supp. 2d at 189 (citing Greyhound Exhibitgroup, Inc., 973 F.2d at 158). “While ‘the court must ensure that there is a basis for the damages specified in a default judgment, it may, but need not, make the determination through a hearing.’” Id. at 190 (quotation omitted).B. Motion for a Default JudgmentPlaintiff’s motion for a default judgment complies with the requirements set forth in the Federal Rules of Civil Procedure and the Local Rules. On August 28, 2017, Plaintiff requested an entry of default against Defendant, and the Clerk of the Court entered default on August 29, 2017. See Dkt. Nos. 15, 16. Attached to the default motion, Plaintiff provides the declaration of Neal L. Slifkin, which states that Defendant is not an infant, an incompetent person, or a person in the military. See Dkt. No. 19-1 at
11-12. Additionally, Plaintiff provides proof of service against Defendant. See Dkt. No. 19-4.Plaintiff seeks a default judgment against Defendant on the following causes of action: (1) trademark infringement under the Lanham Act, (2) false designation of origin under the Lanham Act, (3) trademark infringement under New York law, and (4) deceptive trade practices under New York General Business Law §349. See Dkt. No. 19 at 4. Plaintiff requests a permanent injunction but does not seek money damages. 1. Lanham Act Claims“The standards for false designation of origin claims under Section 43(a) of the Lanham Act (15 U.S.C. §1125) are the same as for trademark infringement claims under Section 32 (15 U.S.C. §114).” Sola Franchise Corp. v. Solo Salon Studios Inc., No. 14-CV-946, 2015 WL 1299259, *7 (E.D.N.Y. Mar. 23, 2015) (quoting Van Praagh v. Gratton, 993 F. Supp. 2d 293, 306 (E.D.N.Y. 2014)). To prevail on both claims, a plaintiff must show “first, that its mark merits protection, and, second, that the defendant’s use of a similar mark is likely to cause confusion.” Id. (quoting Brennan’s, Inc. v. Brennan’s Rest., L.L.C., 360 F.3d 125, 129-30 (2d Cir. 2004)).In regard to the first prong, a certificate of registration with the PTO is “prima facie evidence that the mark is registered and valid (i.e., protectable), that the registrant owns the mark, and that the registrant has the exclusive right to use the mark in commerce.” Id. (quoting Lane Capital Mgmt., Inc. v. Lane Capital Mgmt., Inc., 192 F.3d 337, 345 (2d Cir. 1999)). Further, a registered mark becomes incontestable when the mark “has been in continuous use for five consecutive years subsequent to the date of…registration and is still in use in commerce.” 15 U.S.C. §1065. “An incontestable trademark ‘shall be conclusive evidence of the validity of the registered mark and of the registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce.’” Dress for Success Worldwide v. Dress 4 Success, 589 F. Supp. 2d 351, 358 (S.D.N.Y. 2008) (quoting 15 U.S.C. §1115(b)). Here, Plaintiff registered the FLAX mark with the PTO, has continuously used the mark in connection with the sale of FLAX goods for over twenty years, and has filed the necessary affidavit of continuous use with the PTO. See Dkt. No. 1-1 at 2-3; Dkt. No. 8-4 at5; Dkt. No. 8-5 at 9. Therefore, Plaintiff’s mark is entitled to protection.The second prong in analyzing a trademark infringement claim “turns on whether ordinary consumers ‘are likely to be misled or confused as to the source of the product in question because of the entrance in the marketplace of [the junior user's] mark.’” Guthrie Healthcare Sys. v. ContextMedia, Inc., 826 F.3d 27, 37 (2d Cir. 2016) (alteration in original) (quoting Playtex Prods., Inc. v. Ga.-Pac. Corp., 390 F.3d 158, 161 (2d Cir. 2004)). In the complaint, Plaintiff alleges that “Defendant’s use of Dr Flax, Dr. Flax, Doctor Flax, DoctorFlax, dr.flax, and @dr.flax, and the Dr. Flax Domain, in connection with the Infringing Goods has caused and is likely to continue to cause confusion.” Dkt. No. 1 at28. Indeed, Plaintiff has already been contacted by a licensee of the FLAX mark who “was aware of Dr. Flax and believed it was a subsidiary brand of FLAX.” Dkt. No. 8-4 at28. Furthermore, a review of photos comparing Defendant’s clothing with FLAX brand clothing shows that the two are identical — even the combinations of clothes and poses struck by the models are the same. See id. at
