1 2 3 4 5 6 7 8 United States District Court 9 Central District of California 10 Western Division 11 12 THERAGUN, INC., 20-03821 TJH (Ex) 13 Plaintiff, 14 v. Order 15 COMPLETE RECOVERY, et al., [56] 16 Defendants. 17 18 The Court has considered Plaintiff Theragun, Inc.’s [“Theragun”] motion for 19 default judgment, together with the moving papers. 20 On April 27, 2020, Theragun filed this action, alleging claims for federal 21 trademark infringement, false designation of origin, federal unfair competition, 22 common law trade dress infringement, and patent infringement. All defendants other 23 than Defendant Dezhou Create Fitness Equipment Co., Ltd. [“Dezhou”] have, since, 24 been dismissed. The following facts are as alleged in the First Amended Complaint. 25 Theragun, a Delaware corporation with its principal place of business in Beverley 26 Hills, California, develops, manufactures, and sells percussive therapy devices, such 27 as massage guns and attachments. In 2015, it obtained a federal trademark for 28 THERAGUN. Theragun has trade dress rights to the distinctive blue color of its 1 massage gun products, packaging, marketing, and advertising; consumers associate the 2 distinctive blue color with Theragun. Additionally, Theragun owns numerous design 3 patents for its products. 4 Dezhou, a Chinese limited company with an office in Shandong Province, China, 5 manufactures and sells massage gun products under the brand name CRIFT. Dezhou 6 sells its massage gun products on its brand page on the Alibaba website. Dezhou's 7 massage gun products, allegedly, use the same blue color and designs used by 8 Theragun, thereby infringing on Theragun's trade dress and design patents. 9 Additionally, Dezhou, allegedly, uses the THERAGUN trademark on its website. 10 The Court permitted Theragun to serve Dezhou by substitute service via email 11 and via Dezhou's website. On July 17, 2020, the Clerk of the Court entered Dezhou's 12 default. 13 Theragun, now, moves for default judgment against Dezhou. 14 Because Dezhou's default has been entered, the Court can accept as true the 15 factual allegations in the complaint, except for those allegations which relate to 16 damages. See TeleVideo Systems, Inc. v. Heidenthal, 826 F2d 915, 917-18 (9th Cir. 17 1987). 18 However, before the Court can enter a default judgment, it must ensure that it 19 has personal jurisdiction over Dezhou, a foreign defendant. See Mwani v. bin Laden, 20

(D.C. Cir. 2005). Theragun, as the plaintiff, bears the burden of 21 establishing a prima facie showing that the Court has personal jurisdiction over Dezhou. 22 See Mwani. However, Theragun "cannot simply rest on the bare allegations of its 23 complaint." See Schwarzenegger v. Fred Martin Moto Co.,

, 800 (9th 24 Cir. 2004). 25 Based on the allegations set forth in the First Amended Complaint, it appears that 26 Dezhou is a foreign defendant. A foreign defendant is subject to personal jurisdiction 27 based on its national contacts if: (1) The claims, here, arose under federal law; (2) The 28 foreign defendant is not subject to personal jurisdiction in any particular state; and (3) 1 || This Court's exercise of personal jurisdiction comports with due process. Pebble 2 || Beach Co. v. Caddy,

(9th Cir. 2007). This Court's exercise of 3 || personal jurisdiction over Dezhou would comport with due process if, inter alia, 4 || Dezhou purposefully directed its activities toward the United States, generally, or 5 || California, specifically. See Pebble Beach,

. 6 Theragun's allegations that relate to personal jurisdiction are as follows: (1) 7 "Theragun is informed and believes and thereon alleges that Defendants are 8 || manufacturing, using, selling, or offering for sale within the United States, or 9 || importing into the United States the infringing massage gun products. . . "; (2) 10 | "Theragun is further informed and believes and, based thereon, alleges that Defendants 11 || derive substantial revenue from the distribution, promotion, marketing, sale, offer for 12 || sale, or import of infringing products in or to this District"; (3) "Dezhou is, also, using 13 || Theragun's federally registered trademark . . . as part of its product name in its listings 14 || on Alibaba.com"; and (4) On its brand page on Alibaba . . . Dezhou states that its 15 || "products are selling well in North America." 16 The allegations set forth in Theragun's First Amended Complaint are threadbare 17 || and insufficient to establish personal jurisdiction, here, over Dezhou. See 18 || Schwarzenegger, 374 F.3d at 800. Accordingly, the Court shall deny the motion for 19 || default judgment without prejudice. See Mwani. 20 Accordingly, 21 Jt is Ordvyered that the motion for default judgment be, and hereby is, Denied 22 || without prejudice. 23 24 || Date: August 11, 2021 Law Oto ltiaflh 26 rp J. Hatter, Ar. 57 Senior United States District □□□□□ 28

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