PHILADELPHIA – After a default judgment was entered against him, a judge later set it aside and ordered that a Tennessee-based proprietor of rib spices and seasonings has the opportunity to respond to claims of trademark infringement levied by potato chip manufacturer Utz Quality Foods.
Utz initially filed a complaint on Feb. 28 in the U.S. District Court for the Eastern District of Pennsylvania, against Troy Long of Fayetteville, Tenn. and his company, Dirty South BBQ, of Winchester, Tenn.
According to the complaint, Dirty South is infringing on Utz’s trademark, which Utz’s corporate predecessor acquired in 2011 by buying Zappe Endeavors. Since 1987, Zappe made and sold “Dirty” brand potato chips.
Utz stated the product line is worth several million dollars.
“Utz’s ‘Dirty’ marks are strong. They are inherently distinctive and represent the exceedingly valuable goodwill of Utz,” the company said.
According to the complaint, Long started selling “Dirty South BBQ” products in April 2014 and more recently launched a line of “Dirty” pork rinds. Dirty South BBQ has products in more than 100 grocery stores in Tennessee, Alabama and Utah.
According to Utz, it sent Dirty South BBQ a cease-and-desist letter in May 2019, explaining Long had “at least constructive knowledge of Utz’s rights” to the word “Dirty” when he began using it and sought his own legal protection.
As of April 7, Utz filed a request for a default judgment to be entered against Long, for receiving no response to the litigation by the specified deadline of April 1.
“On Feb. 28, plaintiff filed the complaint against defendants. On March 23, plaintiff filed the summonses returned executed reflecting that, on March 11, both of the defendants were served with the complaint. The deadline for both of the defendants to answer or otherwise respond to the complaint was April 1,” the default request motion stated.
“To date, neither of the defendants have filed an answer or other responsive pleading, request an extension of time to respond to the complaint, or filed any other document reflecting their intent to defend this action.”
Such a default judgment was entered against the defendants on April 8.
Long filed a response to the litigation which substantially denied Utz’s trademark infringement claims and which was dated March 23, but not officially entered on the record until April 14.
On April 20, Long filed a motion to set aside the default judgment.
“Entry of default was made against defendants, Dirty South BBQ Co. LLC and Timothy Troy Long a.k.a Troy Long, on April 7, 2020, despite the COVID-19 pandemic. Even though plaintiff is located in the Middle District of Pennsylvania, it brought this trademark lawsuit here against these Tennessee-domiciled defendants, with venue and personal jurisdiction premised only on Utz’s counsel of record making a single purchase from Dirty South BBQ’s Web site,” the motion read.
“Under Federal Rule of Civil Procedure 55(c), Dirty South BBQ and Timothy Troy Long request that the entry of default be set-aside and the case dismissed for improper venue or lack of personal jurisdiction.”
On May 4, U.S. District Court Judge Wendy Beetlestone granted the motion and ordered that the defendants have until May 18 to otherwise respond to the complaint.
For counts of unfair competition under the Lanham Act, federal trademark infringement and infringement of trade name, the plaintiff is seeking the court to strip Long’s trademark registration for Dirty South BBQ Co.
The plaintiff is represented by Camille M. Miller of Cozen O’Connor, in Philadelphia.
The defendant did not secure legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-01146
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com