The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 CONCESIONARIA VUELA Case No.: 3:25-cv-2284-GPC-SBC
COMPAÑÍA DE AVIACIÓN S.A.P.I
12
DE C.V., a Mexican stock corporation, ORDER RE: PLAINTIFFS’ MOTION
13 and CONTROLADORA VUELA FOR DEFAULT JUDGMENT
COMPAÑÍA DE AVIACIÓN, S.A.B.
14
DE C.V., a Mexican stock corporation, [ECF No. 19]
15
Plaintiffs,
16
v.
17
ELAINE BROWN SELAN and
18 CONCESIONARIA VUELA
COMPAA DE AVIACIN, S.A.P.I.
19
DE C.V., a California nonprofit
20 corporation, and CONTROLADORA
VUELA COMPANIA DE
21
AVIACION, S.A.B. DE C.V., a
22 California nonprofit corporation,
23 Defendants.
24
25 On November 26, 2025, Plaintiffs Concesionaria Vuela Compañía de Aviación
26 S.A.P.I de C.V. and Controladora Vuela Compañía de Aviación, S.A.B. de C.V.
27
1 (collectively, “Plaintiffs”) filed a Complaint alleging federal and California trademark
2 and trade name infringement. ECF No. 1 (“Compl.”). Plaintiffs filed a motion for default
3 judgment on February 23, 2026. ECF No. 19. No opposition has been filed. ECF No. 21.
4 Based on the reasoning below, the Court will give Plaintiffs an opportunity to withdraw
5 the motion and amend the complaint within 21 days of the filing of this order. Otherwise,
6 the Court will GRANT in part Plaintiff’s motion for default judgment.
7 I. BACKGROUND
8
Plaintiffs operate a commercial airline, offering flights within North America and
9
to Central and South America. Compl. ¶ 12. In 2009, Plaintiffs entered the US
10
commercial flight market under Plaintiff Concesionaria’s corporate and trade name
11
“Concesionaria Vuela Compania de Aviacion SAPI de CV” (“U.S. Trade Name”) and
12
collective global trade name “Volaris” (“Global Trade Name”). Id. ¶ 13. Since entering
13
the market, Plaintiffs have “consistently used and registered to conduct business, through
14
[P]laintiff Concesionaria, under the U.S. Trade Name in various jurisdictions throughout
15
the United States.” Id. On April 18, 2011, Plaintiff Concesionaria filed and obtained a
16
certificate of qualification to conduct business as an out-of-state stock corporation in the
17
State of California under the U.S. Trade Name. Id.
18 Plaintiffs have used the VOLARIS Mark in commerce throughout the United
19 States since August 26, 2009. Id. ¶ 19. Specifically, “Plaintiff advertises and promotes
20 their air transportation services under the VOLARIS Mark through their website and
21 social media throughout the United States.” Id. ¶ 23.
22 On November 17, 2009, Plaintiff Concesionaria was granted U.S. Registration No.
23 3712524. Id. ¶ 17. That registration is for the mark VOLARIS in standard characters (the
24 “VOLARIS Mark”) in connection with “[a]ir transportation services for the carriage of
25 passengers, mail, freight and cargo; packaging articles for transportation; storage of cargo
26 and general merchandise goods; coordinating travel arrangement for individuals and for
27
1
groups.” Id. ¶ 16, Ex. 2. On August 8, 2019, the registration was assigned to Plaintiff
2
Controladora. Id. ¶ 17.
3
On March 2, 2021, U.S. Registration No. 6283810 was granted to Plaintiff
4
Controladora. Id. ¶ 18. That registration is for the VOLARIS Mark in connection with
5
“[a]ir transportation services; aeronautical transportation services; information regarding
6
transportation; transportation of passengers; piloting services; aircraft rental;
7
transportation services, namely, airline transportation services, transportation reservation
8
services, and transportation consulting services.” Id. ¶ 16, Ex. 3.
9
Defendant Concesionaria was formed on February 15, 2023. Id. ¶ 31. Upon
10 Plaintiffs’ information and belief, Defendant Selan electronically executed and filed the
11 Articles of Incorporation with the California Office of the Secretary of State. Id. This
12 formed a nonprofit mutual benefit corporation under the laws of the State of California,
13 using “Concesionaria Vuela Compaa de Aviacin, S.A.P.I. de C.V.” (“Concesionaria
14 Infringing Name”) as the corporation name. Id. Defendant Selan is listed as the registered
15 agent for service of process in the Articles of Incorporation. Id.
16 Defendant Controladora was also formed on February 15, 2023. Id. ¶ 32. Upon
17 Plaintiffs’ information and belief, Defendant Selan electronically executed and filed the
18 Articles of Incorporation with the California Office of the Secretary of State. Id. This
19 formed a nonprofit mutual benefit corporation under the laws of the State of California
20 using “Controladora Vuela Compania de Aviacion, S.A.B. de C.V.” (the “Controladora
21 Infringing Name”, and together with the Concesionaria Infringing Name, the “Infringing
22 Names”) as the corporation name. Id. Like Defendant Concesionaria CA, Defendant
23 Selan is also listed as the registered agent for service of process in the Articles of
24 Incorporation. Id.
25 The Articles of Incorporation for both Defendant Concesionaria and Defendant
26 Controladora (together, “Entity Defendants”) provide that the mailing address of the
27
1
entities and their registered agent, Defendant Selan, is 416 W San Ysidro Blvd, L-1958,
2
San Ysidro, CA 92173, and that the principal office address is 30 N Gould, Suite R,
3
Sheridan, WY, 82801. Id. ¶ 34.
4
Defendants Selan, Concesionaria, and Controladora (collectively, “Defendants”)
5
also began using a mark (the “Infringing Mark”) similar to Plaintiff’s VOLARIS Mark in
6
U.S. commerce. Id. ¶ 30.
7
On May 9, 2024, Plaintiffs’ counsel sent a letter to the Office of the California
8
Secretary of State, informing the Office of Defendant Selan’s actions. Id. ¶ 36. On June
9
21, 2024, the Legal Affairs Unit of the California Secretary of State Business Programs
10 Division responded that the Entity Defendants were both in good standing, that Plaintiff’s
11 U.S. Trade Name was distinguishable from Defendant Concesionaria’s corporate name,
12 and that the matter could only be resolved through a private civil lawsuit or by another
13 state or local agency. Id.
14 On June 12, 2024, while awaiting a response from the California Secretary of
15 State, Plaintiffs sent a cease-and-desist letter to Defendant Selan at the registered agent
16 address, “demanding she cease her unauthorized uses of Plaintiff’s U.S. Trade Name and
17 the trade name of [P]laintiff Controladora and file appropriate documents to dissolve” the
18 Entity Defendants. Id. ¶ 37. Plaintiffs have received no response. Id. ¶ 38.
19 Plaintiffs allege that Defendants’ infringing acts have resulted in confusion. In at
20 least one instance, a party wishing to serve Plaintiff Concesionaria with a complaint
21 served the complaint on Defendant Selan via mail. Id. ¶ 39. Plaintiff Concesionaria never
22 received a copy of the complaint and had no notice of the matter until a hearing date was
23 already set. Id.
24 On November 26, 2025, Plaintiffs filed a complaint alleging (1) federal trademark
25 infringement under Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1), (2) federal
26 trade name infringement, unfair competition, false representation, and false designation
27
1
of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), (3) California
2
trademark infringement, Cal. Bus. & Prof. Code § 14200 et seq., (4) California trade
3
name infringement, Cal. Bus. & Prof. Code § 14400 et seq., (5) California unfair
4
competition, Cal. Bus. & Prof. Code § 17200 et seq., and (6) California false advertising,
5
Cal. Bus. & Prof. Code § 17500 et seq. Id. ¶¶ 43, 58, 63, 73, 81, 84.
6
On December 17, 2025, the Court granted Plaintiffs’ motion authorizing service of
7
summons through alternative means. ECF No. 10. As to Defendant Concesionaria and
8
Defendant Controladora, the Court authorized service upon the California Secretary of
9
State in accordance with Section 1702 of the California Corporations Code. Id. As to
10 Defendant Selan, the Court approved service by publication in the San Diego Union-
11 Tribune in accordance with Cal. Gov't Code § 6064.
12 On January 23, 2026, Plaintiffs sought entry of default against the Entity
13 Defendants. ECF Nos. 13, 14. On January 26, 2026, Plaintiffs obtained a clerk’s entry of
14 default against Defendants. ECF No. 15. On February 19, 2026, Plaintiffs sought entry of
15 default against Defendant Selan. ECF No. 17. On February 20, 2026, Plaintiffs obtained a
16 clerk’s entry of default against Defendants. ECF No. 18. On February 23, 2026, Plaintiffs
17 filed a motion for default judgment against Defendants. ECF No. 19. No opposition has
18 been filed. ECF No. 21.
19 II. LEGAL STANDARD
20 Federal Rule of Civil Procedure 55 governs default judgment, a process which
21 requires two steps. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (noting the
22 two-step process required by Rule 55); see also Symantec Corp. v Global Impact, 559 F.3d
23 922, 923 (9th Cir. 2009) (same). First, under Rule 55(a) “when a party against whom a
24 judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
25 failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R.
26
27
1 Civ. P. 55(a). Second, the Plaintiff may seek a default judgment under Rule 55(b). Fed. R.
2 Civ. P. 55(b).
3 At the default judgment stage, the factual allegations of the complaint—excluding
4 damages—are deemed admitted by the non-responding parties. Amazon Content Servs.
5 LLC v. DeBarr, 793 F. Supp. 3d 1242, 1250 (C.D. Cal. 2025); see also Fair Hous. of Marin
6 v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (“With respect to the determination of liability
7 and the default judgment itself, the general rule is that well-pled allegations in the
8 complaint regarding liability are deemed true.”). “However, a defendant is not held to
9 admit facts that are not well-pleaded or to admit conclusions of law.” DIRECTV, Inc. v.
10 Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (citation and quotation omitted)). “[I]t
11 follows from this that facts which are not established by the pleadings of the prevailing
12 party, or claims which are not well-pleaded, are not binding and cannot support the
13 judgment.” Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978).
14 The decision to grant or deny default judgment is within the discretion of the district
15 court. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d
16 1090, 1092-92 (9th Cir. 1980). The Ninth Circuit has enumerated seven factors for courts
17 to consider “in exercising discretion as to the entry of default judgment:”
18 (1) the possibility of prejudice to the plaintiff,
19 (2) the merits of the plaintiff’s substantive claim,
20 (3) the sufficiency of the complaint,
21 (4) the sum of money at stake in the action,
22 (5) the possibility of a dispute concerning material facts,
23 (6) whether the default was due to excusable neglect, and
24 (7) the strong policy underlying the Federal Rules of Civil Procedure favoring
25 decisions on the merits.
26 Eitel, 782 F.2d at 1471–72.
27
1 “If the court determines that the allegations in the complaint are sufficient to
2 establish liability, it must then determine the amount and character of the relief that should
3 be awarded.” Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 920 (C.D.
4 Cal. 2010) (quotations omitted). However, the scope of relief is limited; a “default
5 judgment must not differ in kind from, or exceed in amount, what is demanded in the
6 pleadings.” Fed. R. Civ. P. 55(a). “In determining damages, a court can rely on the
7 declarations submitted by the plaintiff or order a full evidentiary hearing.” Philip Morris
8 USA Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). “[A] default
9 judgment for money may not be entered without a hearing unless the amount claimed is a
10 liquidated sum or capable of mathematical calculation.” Davis v. Fendler, 650 F.2d 1154,
11 1161 (9th Cir. 1981).
12 III. DISCUSSION
13 a. Jurisdiction and Service
14 As a threshold matter, the Court is obligated to review the question of jurisdiction
15 sua sponte. WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc);
16 see also Gupta v. Thai Airwys Intern., Ltd., 487 F.3d 759, 764 (9th Cir. 2007).
17 Subject Matter Jurisdiction. There are two bases for federal subject matter
18 jurisdiction: (1) federal question jurisdiction under 28 U.S.C. § 1331 and (2) diversity
19 jurisdiction under 28 U.S.C. § 1332. As relevant here, federal question jurisdiction is
20 established if “federal law creates the cause of action.” Empire Healthchoice Assurance,
21 Inc. v. McVeigh, 547 U.S. 677, 690 (2006); Cook Inlet Region, Inc. v. Rude, 690 F.3d
22 1127, 1130 (9th Cir. 2012). Where a state law claim does not fall under federal question
23 or diversity jurisdiction, Section 1367(a) grants supplemental jurisdiction over claims
24 “that are so related to claims in the action within such original jurisdiction that they form
25 part of the same case or controversy under Article III of the United States Constitution.”
26 28 U.S.C. § 1367.
27
1 The allegations in the complaint are sufficient to establish subject matter
2 jurisdiction because there is federal question jurisdiction over the first two claims and
3 supplemental jurisdiction over the remaining claims. Plaintiffs’ first two causes of action
4 arise under the Lanham Act, a federal law; thus, the Court has subject matter jurisdiction
5 pursuant to 28 U.S.C. § 1331 over those claims. The remaining claims arise under state
6 law, in particular the California Business and Professions Code, which do not provide for
7 federal question jurisdiction. However, those claims stem from the same case or
8 controversy as the Lanham Act claims. Thus, the Court has supplemental jurisdiction
9 over the state law claims pursuant to 28 U.S.C. § 1367(a). See Lewis v. Heritage
10 Auctions, Case No. 2:25-cv-00748-AH-(PDx), 2025 WL 2376708 (C.D. Cal. Jul. 8,
11 2025) (holding that because the plaintiff’s state law claims are “factually related and part
12 of the same case or controversy” as the Lanham Act claims, the district court has
13 supplemental jurisdiction over all of plaintiff’s state law claims).
14 Personal Jurisdiction. “For an individual, the paradigm forum for the exercise of
15 general jurisdiction is the individual's domicile.” Goodyear Dunlop Tires Operations,
16 S.A. v. Brown, 564 U.S. 915, 924 (2011). For a corporation, the place of incorporation
17 and the principal place of business establish general personal jurisdiction. Daimler AG v.
18 Bauman, 571 U.S. 117, 137 (2014).
19 Here, Entity Defendants’ place of incorporation is California. ECF No. 19-1
20 (“Mot.”) at 10.1 Defendant Selan listed an address located in this district, and Plaintiffs’
21 efforts did not reveal any alternative addresses. Id. Thus, the Court can exercise general
22 personal jurisdiction over the defendants.
23 Personal Service. A federal court does not have jurisdiction over a defendant
24 unless the defendant has been served properly under Fed. R. Civ. P. 4. Direct Mail
25
26
27 1 Page numbers are based on the CM/ECF pagination.
1 Specialist, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988).
2 However, “Rule 4 is a flexible rule that should be liberally construed so long as a party
3 receives sufficient notice of the complaint.” United Food & Commercial Workers Union
4 v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.1984).
5 Here, the Entity Defendants were properly served by alternative means pursuant to
6 Federal Rule of Civil Procedure 4(h)(1)(A), which allows for service on a corporation by
7 following Rule 4(e)(1).2 See ECF No. 16; Fed. R. Civ. P. 4(h)(1)(A). Further, Defendant
8 Selan was properly served pursuant to Rule 4(e)(1). Id.
9 b. The Eitel Factors
10 Applying the seven Eitel factors, the Court finds default judgment is warranted in
11 favor of Plaintiffs.
12 i. Prejudice to the Plaintiff
13 Under the first factor, the Court must examine whether Plaintiff will be prejudiced
14 if the Court denies default judgment. See Eitel, 782 F.2d at 1471. This factor weighs in
15 favor of default judgment “when a defendant has failed to appear or defend against a suit,
16 and the plaintiffs could not otherwise seek relief.” Vietnam Reform Party v. Viet Tan-
17 Vietnam Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal. 2019) (citations omitted);
18 see Amazon Content Servs. LLC v. DeBarr, 793 F. Supp. 3d 1242, 1251 (C.D. Cal. 2025)
19 (“Prejudice can be shown if denying default judgment would leave a plaintiff without a
20 remedy.”) Here, Defendants have made no appearance. Thus, Plaintiff would be
21
22
23
2 Federal Rule of Civil Procedure 4(e)(1) allows service pursuant to “state law of serving
24 a summons in an action brought in courts of general jurisdiction in the state where the
25 district is located.” Fed. R. Civ. P. 4(e)(1). The December 17, 2025 Court order
authorizing alternative service relied on Section 1702 of the California Corporations
26 Code for service on the Defendant corporations through the Secretary of State and Cal.
27 Gov't Code § 6064 for service by publication on Defendant Selan. ECF No. 10.
1 prejudiced absent a default judgment as there would be no remedy. This factor weighs in
2 favor of default.
3 ii. Substantive Claims and Sufficiency of the Complaint
4 The second and third Eitel factors “require that Plaintiff’s allegations state a claim
5 upon which it may recover.” Adobe Systems Inc. v. Kern, No. 09-CV-1076-CW(JL), 2009
6 WL 5218005, at *3 (N.D. Cal. Nov. 24, 2009); see also Danning v. Lavine, 572 F.2d 1386,
7 1388 (9th Cir.1978) (stating that the issue is whether the allegations in the complaint state
8 a claim upon which plaintiff can recover). “In considering the sufficiency of the complaint
9 and the merits of the plaintiff's substantive claims, facts alleged in the complaint not
10 relating to damages are deemed to be true upon default.” Bd. of Trs. of Sheet Metal Workers
11 v. Moak, No. 11-CV-4620-CW, 2012 WL 5379565, at *2 (N.D. Cal. Oct. 31, 2012).
12 Plaintiff alleges two violations of the Lanham Act, 15 U.S.C. § 1051 et seq., and
13 four violations of the California Business and Professions Code.
14 1. Claim 1: Federal Trademark Infringement
15 Plaintiffs’ first claim against Defendants alleges federal trademark infringement in
16 violation of the Lanham Act, 15 U.S.C. § 1114(1). To prevail on a claim of trademark
17 infringement under this section, a plaintiff must demonstrate (1) that it “owns a valid
18 mark, and thus a protectable interest” and (2) that the defendant's “use of the mark ‘is
19 likely to cause confusion, or to cause mistake, or to deceive.’” Lahoti v. VeriCheck, Inc.,
20 586 F.3d 1190, 1196 (9th Cir. 2009) (quoting KP Permanent Make–Up, Inc. v. Lasting
21 Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005)).
22 Here, Plaintiffs have properly alleged it owns a valid mark. Specifically, Plaintiffs
23 provided evidence that the “VOLARIS” mark is federally registered by the USPTO.
24 Compl. ¶¶ 16-18, Exs. 2-3; see also 15 U.S.C. § 1115(a) (registration of a mark on the
25 principal register is prima facie evidence of the validity, ownership, and exclusive right to
26 use the registered mark).
27
1 As for the second prong, the Court must evaluate whether “the similarity of the
2 marks is likely to confuse customers about the source” of goods and services. GoTo.com,
3 Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir. 2000). To assess confusion, courts
4 consider the Sleekcraft factors: (1) strength of the mark; (2) proximity of the goods; (3)
5 similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used;
6 (6) type of goods and degree of care likely to be exercised by the purchaser; (7)
7 defendant's intent in selecting the mark; and (8) likelihood of expansion of the product
8 lines. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 349 (9th Cir. 1979).
9 “When the goods produced by the alleged infringer compete for sales with those of
10 the trademark owner, infringement usually will be found if the marks are sufficiently
11 similar that confusion can be expected.” Id. at 348. However, “[i]f the goods are totally
12 unrelated, there can be no infringement because confusion is unlikely.” Id.; see
13 also eAcceleration Corp. v. Trend Micro, Inc., 408 F. Supp. 2d 1110, 1117 (W.D. Wash.
14 2006) (“[E]ven where the marks are identical, ‘there may be no consumer confusion—
15 and thus no trademark infringement—if the alleged infringer is in a different geographic
16 area or in a wholly different industry.’” (quoting Brookfield, 174 F.3d at 1054)).
17 Here, the court cannot adequately assess whether Defendants’ use of the alleged
18 infringing mark creates a likelihood of consumer confusion. Plaintiffs have made no
19 attempt to identify the infringing mark or “establish the types of goods or services that
20 [Defendants] actually sell[] or advertise[].” Monster Energy Co. v. Pelmir Enter. Inc.,
21 No. 2:22-CV-00524-LK, 2023 WL 3075653, at *5 (W.D. Wash. Apr. 25, 2023). Instead,
22 Plaintiff merely alleges that the Defendants “began using a mark (the ‘Infringing Mark’)
23 confusingly similar to Plaintiffs’ ‘VOLARIS’ Mark in U.S. commerce.” Compl. ¶ 30.
24 Without plausible allegations describing the “confusingly similar” mark or establishing
25 the types of goods Defendants use the VOLARIS mark to sell, the Court cannot evaluate
26 the Sleekcraft factor on the relatedness of the parties’ goods or services. See,
27
1 e.g., Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 633 (9th Cir. 2005) (in
2 considering whether goods or services are related, the court must consider “whether
3 customers are ‘likely to associate’ the two product lines” and “whether the buying public
4 could reasonably conclude that the products came from the same source”
5 (quoting Dreamwerks Prod. Grp., Inc. v. SKG Studio, 142 F.3d 1127, 1131 (9th Cir.
6 1998))). Similarly, without plausible allegations, the Court cannot adequately assess other
7 Sleekcraft factors, such as the degree of care a consumer would use in purchasing the
8 parties’ products, the convergence of the parties’ marketing channels, or the similarity of
9 the parties’ trademarks. See Surfvivor Media, 406 F.3d at 634 (noting that the degree of
10 consumer care varies based on the type of good or service at issue); Pom Wonderful LLC
11 v. Hubbard, 775 F.3d 1118, 1130 (9th Cir. 2014) (“In assessing marketing channel
12 convergence, courts consider whether the parties’ customer bases overlap and how the
13 parties advertise and market their products.”); GoTo.com, 202 F.3d at 1206.
14 Accordingly, the Court concludes that Plaintiffs have failed to adequately plead a
15 claim for trademark infringement under 15 U.S.C. § 1114.
16 2. Claim 2: Federal Trade Name Infringement, Unfair Competition,
17 False Representation, and False Designation of Origin
18 The claims of false designation of origin, unfair competition, trade name
19 infringement, and trademark infringement are established with identical elements. See
20 New West Corp. v. NYM Co., 595 F.2d 1194, 1201 (9th Cir. 1979); Fed'n of Telugu
21 Associations of S. California v. Telugu Ass'n of S. California, No. 14-CV-1278-RSW-
22 LASX, 2016 WL 1588479, at *8 (C.D. Cal. Apr. 20, 2016) (“The elements to establish
23 the claims of false designation of origin, unfair competition, and trademark infringement
24 are ‘identical.’”); Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1178 (9th Cir.
25 1988) (“The ‘ultimate test’ for unfair competition is exactly the same as for trademark
26 infringement: ‘whether the public is likely to be deceived or confused by the similarity of
27
1 the marks.’” (quoting New W. Corp. v. NYM Co. of Cal., 595 F.2d 1194, 1201 (9th Cir.
2 1979))); Cloudclinic LLC v. TheraPetic Sols., Inc., No. 17-CV-1293-JLS (NLS), 2018
3 WL 9538569, at *7 (S.D. Cal. May 21, 2018).
4 Plaintiffs’ second claim against Defendants alleges federal trade name
5 infringement, unfair competition, false representation, and false designation of origin in
6 violation of the Lanham Act, 15 U.S.C. § 1125(a). “To prevail on its common law trade
7 name infringement claim, Plaintiff show that (1) it has a valid, protectable trademark or
8 trade name, and (2) Defendant[s’] use of the mark is likely to cause confusion.” Fed’n of
9 Telugu Ass’ns of Southern Ca. v. Telugu Ass’n of Southern Ca., No. CV 14-1278 RSWL
10 (Asx), 2016 WL 1588479, at *7 (C.D. Cal. Apr. 20, 2016) (citing Applied Info. Scis.
11 Corp. v. eBAY, Inc., 511 F.3d 966, 969 (9th Cir. 2007).
12 “[T]he first element . . . is comprised of two sub-parts: the mark’s protectability
13 and the plaintiff’s ownership of the mark.” Id. at *5. A mark’s protectability depends on
14 its distinctiveness within five categories: (1) generic, (2) descriptive, (3) suggestive, (4)
15 arbitrary, or (5) fanciful. S. California Darts Ass'n v. Zaffina, 762 F.3d 921, 929 (9th Cir.
16 2014). Descriptive marks only become protectable if the mark acquires secondary
17 meaning in the market by becoming distinctive as used in connection with the plaintiff’s
18 goods or services. See id.
19 In this case, Plaintiffs allege that their U.S. Trade Name Concesionaria Vuela
20 Compania de Aviacion SAPI de CV is arbitrary or fanciful because U.S. consumers with
21 less than a conversational level of fluency in Spanish will perceive the Trade Name as an
22 arbitrary or fanciful phrase.3 Compl. ¶ 14. Plaintiffs also allege the U.S. Trade Name has
23
24
25 3 “Under the doctrine of foreign equivalents, foreign words from common languages are
translated into English to determine genericness, descriptiveness, as well as similarity of
26 connotation in order to ascertain confusing similarity with English word marks.” Palm
27 Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
1 acquired distinctiveness through its “widespread, continuous, and exclusive uses” in
2 commerce over time. Id. ¶ 15. Specifically, Plaintiffs have been using the U.S. Trade
3 Name since 2009, have regularly conducted business under this trade name, and have
4 filed documents to conduct business in the State of California under the U.S. Trade
5 Name. Id. ¶ 13. Based on the factual allegations of ownership and use in commerce,
6 Plaintiffs have sufficiently alleged common-law trademark rights in the U.S. Trade
7 Name.
8 With respect to Plaintiff Controladora Vuela Compania De Avacion, S.A.B. DE
9 C.V., Plaintiff alleges that it owns a majority of the issued and outstanding stock in
10 Plaintiff Concesionaria and provides services in California though its subsidiary
11 Concesionaria. Id. ¶8. Plaintiff Controladora also “is the owner of two U.S. Trademark
12 Registrations for the mark VOLARIS which marks it licenses to Plaintiff Concessionaria
13 for exclusive use in the United States.” Id. Both of the Plaintiffs share “Vuela Compania
14 De Avacion” in their names. Given that the Court has already found that Concesionaria is
15 sufficiently distinctive to garner trade name protection, the Court further holds that the
16 shared trade name is similarly and sufficiently distinctive so as to attain secondary
17 meaning for Plaintiff Controladora. Thus, both Plaintiffs have sufficiently alleged a
18 violation of 15 U.S.C. § 1125(a).
19 As before, the second prong requires the Court to evaluate whether “the similarity
20 of the marks is likely to confuse customers about the source” of goods and services.
21 GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir. 2000). To assess
22
23
1377 (Fed. Cir. 2005) (citing In re Sarkli, Ltd., 721 F.2d 353 (Fed. Cir. 1983)). “The
24 doctrine should be applied only when it is likely that the ordinary American purchaser
25 would stop and translate the word into its English equivalent.” Id. (cleaned up). Plaintiffs’
allegation, paired with the fact that “VOLARIS” is the mark used to identify Plaintiff’s
26 services to the public, prevents the Court from applying the doctrine of foreign
27 equivalents. Compl. ¶ 20.
1 confusion, courts consider the Sleekcraft factors: (1) strength of the mark; (2) proximity
2 of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing
3 channels used; (6) type of goods and degree of care likely to be exercised by the
4 purchaser; (7) defendant's intent in selecting the mark; and (8) likelihood of expansion of
5 the product lines. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 349 (9th Cir. 1979).
6 Application of the Sleekcraft factors when determining likelihood of confusion “is a fluid
7 [test] and the plaintiff need not satisfy every factor, provided that strong showings are
8 made with respect to some of them.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d
9 625, 631 (9th Cir. 2005).
10 Here, the Court finds Plaintiffs have made a strong showing with respect to some
11 of the Sleekcraft factors. As for the third factor, the corporate name of Defendant
12 Concesionaria CA and Controladora CA are nearly identical to the Plaintiffs Trade
13 Names. Standing alone, Plaintiffs’ Trade Name, “Concesionaria Vuela Compania de
14 Aviacion S.A.P.I. de C.V.,” and Defendants’ corporate name, “Concesionaria Vuela
15 Compaa de Aviacin S.A.P.I. de C.V.,” are visually and auditorily the same except the
16 removal of three inconspicuous letters within two words of the U.S. Trade Name. See
17 Sleekcraft, 599 F.2d at 351 (holding that “Sleekcraft” and Slickcraft” are similar in sight,
18 sound, and meaning, thus the similarity of the marks factor cuts towards a finding of
19 likelihood of confusion). Further, Plaintiffs’ Trade Name, “Controladora Vuela
20 Compania de Aviacion S.A.B. de C.V.,” and Defendants’ corporate name, “Controladora
21 Vuela Compania de Aviacion S.A.B. de C.V.,” are exactly the same.
22 With respect to the fourth factor, Plaintiffs have alleged at least one instance of
23 actual confusion resulting from similar marks. In particular, a party wishing to serve
24 Plaintiff Concesionaria with a complaint instead served such complaint on Defendant
25 Selan, despite not being a registered agent or affiliated with Plaintiffs. Compl. ¶ 39. As a
26 result, Plaintiffs never received a copy of the complaint. Id.
27
1 In terms of the seventh factor, “[a]n inference of confusion [is] deemed appropriate
2 where a mark is adopted with the intent to deceive the public.” Brookfield Communs.,
3 Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1059 (9th Cir. 1999) (citing E. & J. Gallo
4 Winery v. Gallo Cattle Co., 967 F.2d 1280, 1293 (9th Cir. 1992). Plaintiffs allege that
5 Defendant Selan has filed articles of incorporation with the California Secretary of State
6 for over 350 nonprofit mutual benefit corporations with the same agent, mailing address,
7 principal office address, and purpose provided as the Entity Defendants. Compl. ¶ 35.
8 The majority of these articles were filed between February 9, 2023, and February 16,
9 2023, and all the nonprofit mutual benefit corporations formed by Defendant Selan have
10 a corporation name that is the trade name of a legitimate and existing for-profit business
11 entity. Id. Thus, Plaintiffs allege that “Defendants’ acts are willful with the deliberate
12 intent to trade on the goodwill of Plaintiff’s U.S. Trade Name.” Id. ¶ 40. Plaintiffs have
13 sufficiently alleged facts showing Defendants knowingly adopted a mark similar to
14 Plaintiffs’ Trade Names.
15 Accordingly, this Court finds Plaintiffs have made a strong showing of a likelihood
16 of confusion and, therefore, have sufficiently asserted a meritorious claim for federal trade
17 name infringement under 15 U.S.C. § 1125(a).
18 3. California Trademark Infringement, Trade Name Infringement,
19 Unfair Competition, and False Advertising
20 Plaintiffs’ four remaining claims against Defendants alleges trademark
21 infringement, trade name infringement, unfair competition and false advertising in
22 violation of the California Business and Professions Code.
23 As to the first three California claims, the Ninth Circuit has “consistently held that
24 state common law claims of unfair competition and actions pursuant to California
25 Business and Professions Code § 17200 are ‘substantially congruent’ to claims made
26 under the Lanham Act.” Seltzer v. Green Day, Inc., 725 F.3d 1170, 1180 n. 1 (9th
27
1 Cir.2013) (quoting Cleary v. News Corp., 30 F.3d 1255, 1262–63 (9th Cir.1994)); see
2 also Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 632 (9th Cir. 2008) (finding that
3 California state law trademark infringement claims are subject to the same test as federal
4 claims under the Lanham Act). As this Court finds Plaintiffs sufficiently asserted a claim
5 of trade name infringement, false designation of origin, and unfair competition claims
6 under the Lanham Act, this Court similarly finds Plaintiffs have established its claims for
7 trade name infringement and unfair competition under California Business and
8 Professions Code § 17200. Likewise, as the Court finds that Plaintiffs failed to
9 adequately plead federal trademark infringement, this Court similarly finds Plaintiffs
10 have failed to establish its claim for California trademark infringement.
11 As to the fourth, false advertising claim, “Plaintiffs must prove that Defendant[s]
12 made a ‘statement,’ in connection with the sale of personal property, ‘which is untrue or
13 misleading, and which is known, or which by the exercise of reasonable care should be
14 known, to be untrue or misleading.’” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp 2d
15 1172, 1176 (C.D. Cal. 2002) (quoting Cal. Bus. Prof. Code § 17500). Here, Plaintiffs do
16 not allege an instance of the Entity Defendants or Defendant Selan selling or attempting
17 to sell personal property or services of any kind. Thus, Plaintiffs did not adequately allege
18 a claim of false advertising under Cal. Bus. & Prof. Code § 17500.
19 iii. The Sum of Money at Stake in the Action
20 Under the fourth Eitel factor, “the court must consider the amount of money at stake
21 in relation to the seriousness of Defendant's conduct.” PepsiCo, Inc. v. California Sec.
22 Cans, 238 F. Supp. 2d 1172, 1176 (C.D. Cal. 2002). Essentially, the court must evaluate
23 whether relief sought is proportional to the harm caused. See Landstar Ranger, Inc. v. Parth
24 Enters., Inc., 725 F. Supp. 2d 916, 921 (C.D. Cal. 2010). “Default judgment is disfavored
25 where the sum of money at stake is too large or unreasonable in relation to defendant's
26 conduct.” Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1012 (C.D. Cal. 2014). However,
27
1 when “the sum of money at stake is tailored to the specific misconduct of the defendant,
2 default judgment may be appropriate.” Bd. of Trs. v. Core Concrete Const., Inc., No. 11-
3 CV-2532-LB, 2012 WL 380304, at *4 (N.D.Cal. Jan. 17, 2012) (citations omitted).
4 Here, the Plaintiffs have abandoned their original claims for monetary damages.
5 Mot. at 16. Plaintiffs only seek to enjoin Defendants from “further impersonation of
6 Plaintiffs and/or infringement of Plaintiffs’ intellectual property.” Id. at 19. Since Plaintiffs
7 are only seeking injunctive relief, this factor favors granting default judgment. See
8 PepsiCo, Inc., 238 F. Supp.2d at 1176-77 (finding that seeking injunctive relief from the
9 continued use of the plaintiff’s trademarks on Defendant’s counterfeit products and no
10 monetary relief cuts in favor of default judgment).
11 iv. The Possibility of Dispute Concerning Material Facts
12 The fifth Eitel factor examines the likelihood of dispute between the parties
13 regarding the material facts surrounding the case. See Alameda Elec. Distributors, Inc. v.
14 Eco Eng'g Inc., 808 F.Supp.3d 1014, 1031 (N.D. Cal. Nov. 4, 2025). “Where a plaintiff
15 has filed a well-pleaded complaint, the possibility of dispute concerning material facts is
16 remote.” Wecosign, Inc. v. IFG Holdings, Inc., 845 F. Supp. 2d 1072, 1082 (C.D. Cal.
17 2012); see also Landstar Ranger, 725 F. Supp. 2d at 921–22 (“Since [plaintiff] has
18 supported its claims with ample evidence, and defendant has made no attempt to challenge
19 the accuracy of the allegations in the complaint, no factual disputes exist that preclude the
20 entry of default judgment.”). In addition, the defendant is “deemed to have admitted all
21 well-pleaded factual allegations” in the complaint upon entry of default. DIRECTV, Inc. v.
22 Hoa Huynh, 503 F.3d 847, 851 (9th Cir. 2007).
23 Here, Plaintiff has set forth adequate allegations to support violations of the
24 Lanham Act and the California Business and Professions Code, and the Plaintiff has
25 obtained an entry of default. Accordingly, this factor weighs in favor of default judgment.
26 / / /
27
1 v. Whether Default was Due to Excusable Neglect
2 The sixth Eitel factor examines whether Defendants’ failure to respond can be
3 attributed to excusable neglect. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
4 1986). This factor weighs in favor of entry of default judgment where the defendant was
5 properly served. Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 922
6 (C.D. Cal. 2010). Here, Defendants were properly served but have failed to appear and
7 defend. ECF Nos. 11, 12, 16. Further, there is nothing in the record suggesting this failure
8 is based on excusable neglect. Thus, this factor supports default judgment.
9 vi. Policy Favoring Deciding a Case on the Merits
10 “Cases should be decided upon their merits whenever reasonably possible.” Eitel,
11 782 F.2d at 1472. However, “deciding the case on the merits is impossible where a party
12 refuses to participate.” Vietnam Reform Party v. Viet Tan - Vietnam Reform Party, 416 F.
13 Supp. 3d 948, 970 (N.D. Cal. 2019). Thus, “Rule 55(a) allows a court to decide a case
14 before the merits are heard if defendant fails to appear and defend.” Landstar Ranger,
15 725 F. Supp. 2d at 922. Because Defendants have forfeited the opportunity to defend
16 themselves on the merits by failing to appear and respond, “[t]his factor thus weighs
17 against, but does not preclude, entry of default judgment.” Vietnam Reform Party, 416 F.
18 Supp. 3d at 970.
19 vii. Conclusion as to the Eitel Factors
20 In assessing all the factors, the Court concludes that the Eitel factors weigh in favor
21 of default judgment for Causes of Action 2, 4, and 5.
22 c. Relief Sought
23 After establishing liability, the plaintiff must demonstrate the relief sought is
24 appropriate. Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). A “default
25 judgment must not differ in kind from, or exceed in amount, what is demanded in the
26 pleadings.” Fed. R. Civ. P. 54(c). Plaintiffs seek injunctive relief compelling Defendants
27
1 “prohibit further impersonation of Plaintiffs and/or infringement of Plaintiffs’ intellectual
2 property . . .” Mot. at 19.
3 “Injunctive relief is the remedy of choice for trademark infringement and unfair
4 competition cases, since there is no adequate remedy at law for the injury caused by a
5 defendant's continuing infringement.” Century 21 Real Estate Corp. v. Sandlin, 846 F.2d
6 1175, 1180 (9th Cir. 1988). Under the Lanham Act, the Court has the power to grant
7 injunction according to the rules of equity, and on such terms as the court deems
8 reasonable, to prevent the violation of a mark holder’s rights. 15 U.S.C. § 1116(a). A
9 plaintiff is not entitled to an injunction as a matter of course, but where a mark holder
10 demonstrates ongoing infringement of its marks, an injunction is appropriate. PepsiCo,
11 Inc. v. California Sec. Cans, 238 F. Supp. 2d 1172, 1177-78 (C.D. Cal. 2002).
12 Here, Plaintiffs have established that Defendants’ use of the U.S. Trade Name is
13 both likely to cause confusion and has continued to cause actual confusion to those
14 seeking litigation against Plaintiffs. ECF No. 19-2 ¶ 8.4 Without injunctive relief,
15 Plaintiffs will likely continue to suffer irreparable harm through Defendants’ use of their
16 U.S. Trade Name. See PepsiCo, 238 F.Supp.2d at 1178. Accordingly, injunctive relief is
17 appropriate.
18 IV. CONCLUSION
19 While the above analysis shows merit in three of the claims, the remaining three
20 claims concerning Plaintiffs’ trademarks and false advertising are not supported by the
21 current complaint. The Court will thus give Plaintiffs the option of voluntarily
22 withdrawing the motion for default judgment and filing an amended complaint within 21
23
24
25 4 The declaration provides: “Since the filing of the instant action, Plaintiffs learned that
two additional small-claims plaintiffs have mistakenly served Selan with process based
26 on the mistaken assumption that Selan was the authorized registered for Plaintiffs, and
27 the Entity Defendants were affiliated with Plaintiffs.” See also ECF Nos. 19-3, 19-4.
1 || days of this order. Plaintiffs’ amended complaint and any renewed motion for default
2 ||judgment must address the issues raised in this order. If Plaintiffs do not wish to
3 || withdraw the motion for default judgment within 21 days, Plaintiffs must notify the
4 || Court, and the Court will subsequently GRANT in part Plaintiffs’ motion for default
5 || judgment.
6 IT IS SO ORDERED.
7 Dated: May 7, 2026 2
8 Hon. athe Cae
9 United States District Judge
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27 21
28 3:25-cv-2284-GPC-SBC