OPINION AND ORDER Plaintiff Equibal, Inc. (“Equibal”), brings this action against defendants 365 Sun LLC doing business as Nutree Cosmetics (“365 Sun”), Nutree Professional Brazil (“Nutree Brazil”), Lance Thompson, Natalia Y. Likhacheva, Bruno Borges Garcia, and Chromus Comercial Eirelli (“Chromus”), alleging trademark infringement in violation of the Lanham Act and New York law, unfair competition and false designation of origin in violation of the Lanham Act, and violations of Sections 349 and 350 of the New York General Business Law. Plaintiff’s claims arise out of defendants’ alleged use of “NUTREE” and “NUTREE PROFESSIONAL” marks, which purportedly infringe on “NUFREE” and “NUFREE PROFESSIONALS” marks owned by plaintiff. Defendants 365 Sun, Thompson, and Likhacheva (collectively, the “U.S. Defendants”) bring two counterclaims against plaintiff for tortious interference with business relations and prospective business relations under New York law. Defendants Nutree Brazil, Garcia, and Chromus (collectively, the “Brazil Defendants”) have not yet been served. Now pending are plaintiff’s (i) motion to dismiss the U.S. Defendants’ counterclaims pursuant to Rule 12(b)(6) (Doc. #89); and (ii) motion to serve the Brazil Defendants by alternative means. (Doc. #98). For the reasons set forth below, the motion to dismiss is GRANTED and the motion to serve the Brazil Defendants by alternative means is GRANTED IN PART and DENIED IN PART. The Court has subject-matter jurisdiction pursuant to 28 U.S.C. §1331. BACKGROUND I. U.S. Defendants’ Relevant Allegations For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the U.S. Defendants’ counterclaims complaint, as well as in documents incorporated by reference or integral to the complaint, and draws all reasonable inferences in the U.S. Defendants’ favor, as summarized below. 365 Sun has marketed and distributed products “under the Nutree brand since 2016 and the mark and brand have been well-known and well-respected in the market.” (Doc. #85 at 11-15 (“Countercl. Compl.”) 5). These products include “hair restoration, hydration, treatments, [and] cosmetics” products, which are sold through Amazon.com and other platforms. (Id. 6). The U.S Defendants contend 365 Sun has a business relationship with the Brazil Defendants, of which plaintiff is aware. Nutree Brazil allegedly supplies some Nutree-branded products to 365 Sun, which distributes such products. According to the U.S. Defendants, defendant “Garcia is the applicant for a pending United States trademark registration application (the ‘Nutree Mark’).” (Countercl. Compl. 10). In addition, “365 Sun has developed and utilized labeling, logos and packaging for its marketing and advertising of the Nutree Products (the ‘Trade Dress’).” (Id. 12). “The Trade Dress and Nutree Mark” allegedly “have significant and valuable positive recognition among relevant consumers and prospective consumers of Nutree products.” (Id. 13). The U.S. Defendants contend plaintiff has engaged in several improper actions to interfere with their business relationships. First, they allege plaintiff “knowingly interfered with the Nutree Mark trademark application process by submitting a protest to said application” to the U.S. Patent and Trademark Office (“USPTO”), which “delay[ed] the trademark registration of the Nutree Mark and the legal protections resulting from trademark registration,” and thereby interfered with “U.S. Defendants’ prospective business relationships with its customers and prospective customers.” (Countercl. Compl.
15-16). Second, the U.S. Defendants claim plaintiff “knowingly attempted to impose pressure on” them and interfered with the U.S. Defendants’ business relationship with the Brazil Defendants “by forcing a settlement among all Parties to the instant case, the terms of which were not agreed and would be detrimental to the U.S. Defendants’ business relationships” with the Brazil Defendants, and “to 365 Sun’s business.” (Id. 17). Finally, the U.S. Defendants contend plaintiff “knowingly attempted to interfere with” their current and prospective business relationships by “obtaining an Entry of Default against the U.S. Defendants” in the instant action, “while settlement negotiations among the Parties were ongoing, and without providing notice to the U.S. Defendants that it was seeking an Entry of Default” against them. (Id. 18). II. Relevant Procedural History On August 13, 2021, plaintiff filed proofs of service as to the U.S. Defendants, indicating they were served on August 3, 2021 (Docs. ##7-9). The U.S. Defendants therefore had until August 24, 2021, to respond to the complaint. (Doc. #10). On August 17, 2021, plaintiff attempted to serve Garcia and Nutree Brazil by personal delivery in Brazil at the address on the NUTREE PROFESSIONAL trademark application; however, they were no longer at that address. (Doc. #24 21). On August 26, 2021, plaintiff unsuccessfully attempted to serve Garcia and Nutree Brazil at another address in Brazil. (Id. 22). On August 31, 2021, because none of the defendants had responded to the complaint or appeared in this action, the Court directed plaintiff to seek default as to all defendants by September 14, 2021, and thereafter to move, by order to show cause, for default judgment against each defendant by September 28, 2021. (Doc. #10). In addition, the Court warned, in bold typeface, “If plaintiff fails to satisfy either deadline, the Court may dismiss the case without prejudice for failure to prosecute or failure to comply with court orders” pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Id.). Pursuant to that Order, on September 14, 2021, plaintiff filed a proposed Clerk’s certificate of default as to the U.S. Defendants only. (Doc. #11). On September 17, 2021, the Court stayed plaintiff’s time to move for a default judgment, stating, “[i]f after all defendants have been served, all defendants are in default, the Court will establish deadlines for plaintiff to seek certificates of default as to defendants and to move by order to show cause for a default judgment as to any defendants remaining in default.” (Doc. #14). On September 17, 2021, the Clerk of Court issued a certificate of default as to the U.S. Defendants. (Doc. #15). On January 5, 2022, counsel for the U.S. Defendants, Mark Kimball, Esq., appeared in this action. (Doc. #21). Two days later, plaintiff filed a motion to (i) serve the Brazil Defendants by alternative means (the “First Request for Alternative Service”), and (ii) enforce a purported settlement agreement between the parties. (Doc. #22). Plaintiff proposed several alternative methods of service, including service on Curt Handley, Esq., the attorney of record listed on defendant Garcia’s “NUTREE PROFESSIONAL” trademark application. (Doc. #23 at 19). The U.S. Defendants opposed plaintiff’s motion on January 18, 2022. (Doc. #25). In support of the U.S. Defendants’ opposition, Mr. Kimball declared under oath that he did not represent Garcia or Nutree Brazil, had never had contact with them, and could not accept service on their behalf. (Doc. #26
