Cambridge Pavers, Inc. v. Armorproof Paving & Masonary LI, Inc. et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CAMBRIDGE PAVERS, INC.,
Plaintiff,
-against-
ARMORPROOF PAVING & MASONRY
LI, INC., and THOMAS J. O’LEARY,
Defendants.
REPORT AND
RECOMMENDATION
24-CV-7784(MKB)(SIL)
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STEVEN I. LOCKE, United States Magistrate Judge:
Presently before the Court in this trademark infringement action, on referral
from the Honorable Margo K. Brodie for Report and Recommendation, is Plaintiff
Cambridge Pavers, Inc.’s (“Plaintiff” or “Cambridge Pavers”) motion for a default
judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure (“Fed. R. Civ.
P.”). See Docket Entry (“DE”) [13]. By way of a Complaint dated November 7, 2024,
Plaintiff commenced this action against Defendants Armorproof Paving & Masonry
LI, 	Inc. 	(“Armorproof”) 	and 	Thomas 	J. 	O’Leary 	(“O’Leary” 	and 	together,
“Defendants”). 	See Complaint (“Compl.”), DE [1]. 	On January, 15, 2025, Plaintiff
filed an Amended Complaint (“Am. Compl.”), DE [7], which is the operative pleading
in this action. 	Cambridge Pavers does not seek monetary damages and, instead, is
only moving for permanent injunctive relief against Armorproof.1 DE [13]. For the
1 In its first, second, fourth, sixth, and seventh causes of action, Plaintiff asserts that it is entitled to
“treble damages, statutory damages, disgorgement of profits, [and] attorneys’ fees and costs.” See Am.
Compl. ¶¶ 23, 31, 38, 47, 54. Nevertheless, in its memorandum of law in support of its motion for a
default judgment, as well as its proposed judgment, Plaintiff only seeks injunctive relief. See DE [13-
1], [13-3]. Accordingly, the Court considers any claim for monetary relief to be abandoned.
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reasons set forth herein, the Court respectfully recommends that Plaintiff’s motion
be denied.
I. 	BACKGROUND
A. 	Facts2
Plaintiff is a New Jersey corporation with a business address at Base of Jerome
Avenue, Lyndhurst, New Jersey 07071. 	Am. Compl. ¶ 1. 	Cambridge Pavers is “a
leading manufacturer of paving stones in the United States.” Id. at ¶ 5. Armorproof
is a New York corporation with an address of 1069 Main Street, Suite 214, Holbrook,
New York 11741. 	Id. at ¶ 2. 	Defendant O’Leary is an officer, shareholder, or
otherwise holds an interest in Armorproof.3 Id. at ¶ 3. 	Armorproof “market[s] and
sell[s] and offer[s] for sale a variety of concrete and asphalt products and services . .
. .” Id. ¶ 12. To this end, although Plaintiff alleges that it and Defendant sell similar
products, it does not allege that they serve the same geographical area, nor does
Plaintiff allege that the parties provide services for the same clientele. 	Rather,
Cambridge 	Pavers 	alleges 	that 	it 	is 	located 	in 	Lyndhurst, 	New 	Jersey, 	and
Armorproof is located in Holbrook, New York, id. at ¶¶ 1-2, and that Defendant
provides services using marks that are confusingly similar to Plaintiff’s registered
trademarks. Id. at ¶¶ 13-15.
2 Unless stated otherwise, the following facts are taken from the Amended Complaint and are accepted
as true for purposes of the instant motion.
3 Plaintiff does not seek a default judgment against O’Leary and there is no indication that Plaintiff
served O’Leary with the Summons, Complaint, or Amended Complaint. DE [13]. Accordingly, the
Court only considers potential relief with respect to Armorproof.
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Since as early as 1995, Cambridge Pavers has used the marks “CAMBRIDGE
PAVERS” 	and “ARMORTEC” 	(together, 	the 	“Marks”) 	to 	distinguish 	its 	goods,
including “paving stones with a hardfacing top surface.” 	Id. at ¶ 6. 	Plaintiff owns
the trademarks registered under both U.S. Trademark Registration No. 3,094,763 for
“ARMORTEC” 	(the 	“Armortec 	Mark”) 	and 	U.S. 	Trademark 	Registration 	No.
6,620,469 	for 	“CAMBRIDGE 	PAVINGSTONES 	WITH 	ARMORTEC 	&
WALLSTONES” (the “Cambridge Mark”). Id. at ¶¶ 8-11. Both Marks are “valid and
subsisting.” Id. at ¶¶ 9, 11. The registered Armortec Mark is:
See Declaration of Joseph E. Sutton (“Sutton Decl.”), DE [13-2], at Ex. A. 	The
registered Cambridge Mark is:
Id.
Plaintiff alleges that, similar to itself, Armorproof “market[s] . . . and offer[s]
for sale a variety of concrete and asphalt products and services, including, paving
stones under the name ARMORPROOF PAVING & MASONRY.” Am. Compl. ¶ 12.
Nothing resembling either of Plaintiff’s Marks appears on Armorproof’s website. To
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the contrary, the only logo or insignia that Plaintiff identifies on Defendant’s website
is the following:
Sutton Decl. Ex. B. To this end, the registration form of the Cambridge Mark states
that “[t]he letter ‘O’ in ‘ARMORTEC’ is in the form of a helmet design.” Id. at Ex. A.
While not stated in the registration form, the same is true for the Armortec Mark.
Id. In contrast, despite having 3 “O”s in its name, Armorproof does not, at any point,
rely upon a similar logo to represent the letter “O.” 	Moreover, whereas Plaintiff
alleges that it is based in Lyndhurst, New Jersey, see Am. Compl. ¶¶ 1-2, the
Armorproof Mark specifically references Long Island, New York, which Plaintiff
concedes is the geographical region where Armorproof is based. Sutton Decl. Ex. B;
Am. Compl. ¶ 2. Cambridge Pavers also does not allege a geographical overlap of the
promotion of its service area between itself and Armorproof or an overlap in clientele.
Cambridge Pavers alleges that Defendant purchases Plaintiff’s products “from
Plaintiff’s authorized distributors and dealers” and resells them “using marks
confusingly similar to Plaintiff’s marks without authorization to deceive and confuse
customers that Defendants are associated with or sponsored by Plaintiff.” 	Am.
Compl. ¶ 13. 	Cambridge Pavers does not specifically identify any distributor or
dealer from which it or Armorproof purchases products for resale, nor does Cambridge
Pavers 	allege 	that Defendant 	actually 	uses 	either the 	Armortec Mark 	or the
Cambridge Mark on its website or other promotional materials. 	Id. 	Instead,
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Cambridge Pavers alleges generally that Defendant uses marks that are “confusingly
similar to Plaintiff’s marks without authorization, to trade on Plaintiff’s goodwill, to
deceive customers and to cause damage to Plaintiff’s reputation . . . .” Id. at ¶ 15.
B. 	Procedural Background
On November 7, 2024, Plaintiff commenced this action against Armorproof and
O’Leary, alleging causes of action for: (1) federal trademark infringement pursuant
to 15 U.S.C. § 1051 et seq.; (2) false designation of origin pursuant to 15 U.S.C. §
1125(a); (3) dilution of Plaintiff’s Marks in violation of 15 U.S.C. § 1125(c); (4) unfair
competition in violation of New York common law; (5) statutory unfair competition
pursuant to N.Y. Gen. Bus. Law § 360-1; and (6) deceptive acts or practices in
violation of N.Y. Gen. Bus. Law § 349. 	Compl. ¶¶ 16-47. 	Plaintiff served the
Summons and Complaint on Armorproof on December 13, 2024. DE [6]. There is no
indication that Plaintiff served O’Leary.
On January, 15, 2025, Plaintiff filed its Amended Complaint, which is the
operative pleading in this action. 	DE [7]. 	The Amended Complaint contains
substantially similar factual allegations, but includes an additional cause of action
for cyberpiracy in violation of the Anti-Cybersquatting Consumer Protection Act of
1999, 15 U.S.C. § 1125(d). 	Am. Compl. ¶¶ 48-54. 	On February 20, 2025, Plaintiff
served the Amended Complaint on Armorproof. DE [8]. Again, there is no indication
that Plaintiff served the Amended Complaint on O’Leary and Plaintiff only seeks a
default judgment against Armorproof. DE [11-2].
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On March 27, 2025, after Armorproof failed to respond to the Amended
Complaint, Plaintiff requested that the Clerk of the Court enter a Certificate of
Default against Armorproof. 	DE [11]. 	On April 3, 2025, the Clerk of the Court
entered a Certificate of Default against Armorproof pursuant to Fed. R. Civ. P. 55(a).
DE [12]. On May 13, 2025, Cambridge Pavers filed the instant motion for a default
judgment in which it seeks permanent injunctive relief as against Armorproof. 	DE
[13]. 	On May 9, 2025, Judge Brodie referred Plaintiff’s motion to this Court for a
Report and Recommendation. See Electronic Order dated May 9, 2025.
II. 	LEGAL STANDARD
Motions for default judgment are governed by Fed. R. Civ. P. 55, which
provides for a two-step process. See Fed. R. Civ. P. 55; Priestley v. Headminder, Inc.,
647 F.3d 497, 504-05 (2d Cir. 2011). Initially, the moving party must obtain a
certificate of default from the Clerk of the Court. See Fed. R. Civ. P. 55(a). Once the
certificate of default is issued, the moving party may apply for entry of a default
judgment. Id. at 55(b). Where a default occurs, the well-pleaded factual allegations
set forth in a complaint relating to liability are deemed true. 	Vermont Teddy Bear
Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004); see Fed. R. Civ. P.
8(b)(6) (“An allegation – other than one relating to the amount of damages – is
admitted if a responsive pleading is required and the allegation is not denied.”).
A 	plaintiff 	seeking 	a 	default 	judgment 	must 	demonstrate 	that 	its
“uncontroverted allegations, without more, establish the defendant’s liability on each
asserted cause of action.” 	Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 83
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(E.D.N.Y. 2012). In determining whether to grant a motion for default judgment, the
court has the “responsibility to ensure that the factual allegations, accepted as true,
provide a proper basis for liability and relief.” 	Ferrera v. Tire Shop., No. 14-CV-
4657(FB)(LB), 	2015 	WL 	3562624, 	at 	2* 	(E.D.N.Y 	Apr. 	6, 	2015) 	(Report 	and
Recommendation), adopted by 2015 WL 3604078 (E.D.N.Y. June 5, 2015) (internal
quotation marks and citation omitted). 	Accordingly, prior to entering a default
judgment, the court must determine whether the plaintiff’s allegations establish the
defendant’s liability as a matter of law. 	Bricklayers & Allied Craftworkers Loc. 2,
Albany N.Y. Pension Fund v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 187
(2d Cir. 2015) (internal quotation omitted). Once liability has been established “[t]he
court must also determine the amount of damages, actual or statutory that may be
assessed.” Lyons P’ship, L.P. v. D&L Amusement & Ent., Inc., 702 F. Supp. 2d 104,
111. (E.D.N.Y. 2010). Accordingly, “liability does not automatically attach from the
well-pleaded allegations of the complaint, as it remains the court’s responsibility to
ensure that the factual allegations, accepted as true, provide a proper basis for
liability and relief.” 	Santander Bank, N.A. v. Bison Expedite Inc., No. 23-CV-
6233(NRM)(ST), 2025 WL 1640545, at *2 (E.D.N.Y. Jan. 30, 2025) (quoting Rolls-
Royce PLC v. Rolls-Royce USA, Inc., 688 F. Supp. 2d 150, 153 (E.D.N.Y. 2010)).
III. 	DISCUSSION
Plaintiff seeks a default judgment permanently enjoining Armorproof from
further infringing upon Plaintiff’s Marks. 	See Memorandum of Law in Support of
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Motion for Entry of Default Judgment (“Pl.’s Mem.”), DE [13-1], at 7. For the reasons
set forth herein, the Court respectfully recommends that the motion be denied.
A. 	Federal Trademark Infringement, False Designation of Origin,
Dilution and New York Common Law and Statutory Unfair
Competition
The Court simultaneously addresses Plaintiff’s claims for alleged violations of
the Lanham Act claim pursuant to 15 U.S.C. § 1114(1), false designation of origin
pursuant to 15 U.S.C. § 1125(a) and trademark infringement and unfair competition,
both arising under New York common law, as courts “employ substantially similar
standards when analyzing” these claims. 	TRU Kids Inc. v. Zaza R Us, No. 23-CV-
2260(OEM)(LB), 2023 WL 9232949, at *8 (E.D.N.Y. Dec. 11, 2023) (quoting Deep
Foods Inc. v. Deep Foods, Inc, 419 F. Supp. 3d 568, 578 (W.D.N.Y. 2019)); see Van
Praagh v. Gratton, 993 F. Supp. 2d 293, 301 (E.D.N.Y. 2014) (“Courts employ
substantially similar standards when analyzing claims for trademark infringement
under the Lanham Act, 15 U.S.C. § 1114(1)(a); false designation of origin under the
Lanham Act,15 U.S.C. § 1125(a); trademark infringement under New York common
law; and unfair competition under New York common law.”); see also Juul Labs, Inc.
v. EZ Deli Grocery Corp I, No. 21 Civ. 2615(MKB)(VMS), 2022 WL 1085406, at *5
(E.D.N.Y. Feb. 10, 2022) (Report and Recommendation), adopted by 2022 WL 819152
(E.D.N.Y. Mar. 18, 2022) (“Claims for false designation of origin and 	trademark
infringement are both governed by the same legal standard.”) (internal quotation
omitted); Am. Auto. Ass’n, Inc. v. Limage, No. 15 Civ. 7386(NGG)(MDG), 2016 WL
4508337, at *2 (E.D.N.Y. Aug. 26, 2016) (observing that claims for false designation
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of origin and trademark infringement under the Lanham Act “are both governed by
the same legal standard”).
Likewise, claims for common law unfair competition under New York law are
analyzed under a similar standard as Federal trademark infringement claims.
FoxMind Canada Enters. Ltd. v. YoYo Lip Gloss, Inc., No. 22-CV-5349(HG)(MMH),
2025 WL 819867, at *8 (E.D.N.Y. Mar. 15, 2025) (holding that the plaintiff “satisfied
the New York law unfair competition standard because [the defendant’s] use of the
Infringing Mark include[d] a presumption of bad faith . . .”); BTL Indus., Inc. v.
Versalini Beauty & Spa Salon, No. 23-CV-8617(LJL), 2024 WL 3342293, at *5
(S.D.N.Y. July 8, 2024) (“The ‘elements of an unfair competition claim under New
York law are identical to the elements of an unfair competition claim under the
Lanham Act, save that the plaintiff must also show bad faith by the infringing
party.’”) (quoting Fischer v. Forrest, 286 F. Supp. 3d 590, 617 (S.D.N.Y. 2018));
Fullsend, Inc. v. Cannafellas, Inc., No. 22-CV-2515(ENV)(ARL), 2023 WL 2970458,
at *4 (E.D.N.Y. Jan. 31, 2023). Finally, “[t]he standards for trademark infringement
and dilution under New York’s common law of unfair competition ‘are essentially the
same as’ under the Lanham Act.” 	Kensington Pub. Corp. v. Gutierrez, No. 05 Civ.
10529(LTS)(ALP), 2009 WL 4277080, at *7 (S.D.N.Y. Nov. 10, 2009). 	Accordingly,
“cases analyze federal and state dilution claims under the same standards . . . .”) Car-
Freshener Corp. v. D&J Distrib. & Mfg., Inc., No. 14-CV-391(PKC), 2014 WL
3900564, at *4 (S.D.N.Y. Aug. 8, 2014).
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The Lanham Act – and therefore the additional trademark protection statutes
referenced 	above 	– 	protects 	against 	the 	infringement 	and 	counterfeiting 	of
trademarks. 	15 U.S.C. §§ 1114(1)(a)-(b); 15 U.S.C. § 1125(a). 	To prevail on a
trademark infringement claim, the “plaintiff must show that (1) he or she has a valid
mark that is entitled to protection, and (2) the defendant’s actions are likely to cause
confusion as to the origin or sponsorship of the defendant’s goods.” Capri Sun GmbH
v. Am. Beverage Corp., 595 F. Supp. 3d 83, 144 (S.D.N.Y. 2022). 	Accordingly, the
relevant consideration is “whether the defendant’s use [is] likely to cause confusion
as to the origin or sponsorship of the defendant’s goods.” Id. (quoting Int’l Info. Sys.
Sec. Certification Consortium, Inc. v. Sec. Univ., LLC, 823 F.3d 153, 161 (2d Cir.
2016)) (alterations omitted); see Whirlpool Props. v. Menpin Supply Corp., No. 19 Civ.
2722(ENV)(JO), 2020 U.S. Dist. LEXIS 183459, at *7 (E.D.N.Y. Sep. 30, 2020) (citing
Mitchell Grp. USA LLC v. Udeh, No. 14 Civ. 5745(DLI)(JO), 2017 WL 9487193, at *3
(E.D.N.Y. Mar. 8, 2017)) (further citations omitted). In analyzing these claims, courts
consider the factors enumerated in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d
492 (2d Cir. 1961), including:
(1) the strength of the plaintiff’s mark; (2) the degree of similarity
between the plaintiff’s and defendant’s marks; (3) the competitive
proximity of the products sold under the marks; (4) the likelihood that
the plaintiff will bridge the gap; (5) actual confusion; (6) the defendant’s
good faith, or lack thereof, in adopting its mark; (7) the quality of the
defendant’s 	product; 	and 	(8) 	the 	sophistication 	of 	the 	plaintiff’s
customers.
The Court need not evaluate each and every Polaroid factor, and Plaintiff’s
allegations, 	even 	accepted 	as 	true, 	fail 	to 	establish 	a 	claim 	for 	trademark
infringement under federal or state law. 	Guthrie Healthcare Sys. v. ContextMedia,
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Inc., 826 F.3d 27, 44 (2d Cir. 2016) (observing that that a Court need not analyze each
Polaroid factor in evaluating trademark infringement). 	While there is no plausible
dispute based upon Plaintiff’s allegations that the parties sell similar products, see
Hypnotic Hats, Ltd. v. Wintermantel Enters., LLC, 335 F. Supp. 3d 566, 586 (S.D.N.Y.
2018) (observing that “[t]he fact that both companies sell the same type of product . .
. counts somewhat in favor of market proximity”), Plaintiff’s allegations remain
deficient and denial is appropriate.
Neither the Armortec Mark nor the Cambridge Mark appear on Armorproof’s
website in any capacity, nor does Plaintiff identify any other use of the Marks by
Defendant. 	Sutton Decl. Exs. A, B. 	While Plaintiff’s allegations, accepted as true,
demonstrate that both Cambridge Pavers and Armorproof arguably sell similar
products – namely, “a variety of concrete and asphalt paving stones,” see Am. Compl.
¶¶ 6, 12 – they sell them in substantially different markets with no apparent overlap,
and the only similarity between the marks is the presence of the word “Armor.” 	To
this end, Plaintiff primarily refers to itself as “Cambridge Pavers” and offers no
allegations of instances in which it refers to itself as “Armortec” or how use of the
name “Armorproof” would cause confusion with Plaintiff’s product, which is sold in a
different state under a different name and using a distinct website. Accordingly, the
mere use of the word “Armor” is insufficient to establish a claim for trademark
infringement. See, e.g., Girl Scouts of the United States of Am. v. Boy Scouts of Am.,
597 F. Supp. 3d 581, 591-97 (S.D.N.Y. 2022) (holding that that a common, single word
taken out of composite form is not inherently distinct). 	Accordingly, the Court
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respectfully recommends that Plaintiff’s motion for default judgment be denied with
respect to Cambridge Pavers first, second, third, fourth, and fifth causes of action.
B. 	New York State Law Against Deceptive Acts and Practices
Plaintiff further alleges in conclusory fashion that Defendant “ha[s] used and
employed deceptive acts or practices in direct violation of the New York General
Business Law § 349.” Am. Compl. ¶ 44. According to Cambridge Pavers, “[t]hrough
Defendant’s unauthorized use of the name ARMORPROOF PAVING & MASONRY
in connection with its services, Defendants have used and employed deceptive acts or
practices in direct violation of the New York General Business Law § 349.” Id. The
Court recommends that default judgment be denied with respect to this claim as well.
To prevail on a claim arising under N.Y. Gen. Bus. Law § 349, a “plaintiff must
show (1) ‘that the challenged act or practice was consumer-oriented,’ (2) ‘that it was
misleading in a material way,’ and (3) ‘that the plaintiff suffered injury as a result of
the deceptive act.’” 	Juul Labs, Inc., 2022 WL 1085406, at *7 (quoting 	Crawford v.
Franklin Credit Mgmt. Corp., 758 F.3d 473, 490 (2d Cir. 2014) (citation omitted).
“[T]he majority view in this Circuit is that trademark . . . infringement claims are not
cognizable under [N.Y. Gen. Bus. Law § 349] unless there is a specific and
substantial injury to the public interest over and above ordinary trademark
infringement[.]” Philip Morris USA Inc. v. U.S. Sun Star Trading, Inc., No. 08 Civ.
68(KAM)(JO), 2010 WL 2133937, at *6 (E.D.N.Y. Mar. 11, 2010) (emphasis added).
“[I]njury or harm that satisfy this standard include ‘potential danger to the public
health or safety.’” La Cibeles, Inc. v. Adipar, Ltd., No. 99 Civ. 4129(AGS), 2000 WL
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1253240, at *15 (S.D.N.Y. Sept. 1, 2000) (quoting Sports Traveler, Inc. v. Advance
Magazine Publishers, Inc., No. 96 Civ. 5150(JFK), 1997 WL 137443, at *2 (S.D.N.Y.
Mar. 24, 1997)); see Van Praagh, 993 F. Supp. 2d at 305 (“[T]he prevailing view in the
Second Circuit is that ‘trademark infringement claims are not cognizable under
[NYGBL] § 349 unless there is specific and substantial injury to the public interest
over and above the ordinary trademark infringement.’”) (quoting Perfect Pearl Co.,
Inc. v. Majestic Pearl & Stone, Inc., 887 F. Supp. 2d 519, 543 (S.D.N.Y. 2012)); Perkins
Sch. for the Blind v. Maxi-Aids, Inc., 274 F. Supp. 2d 319, 327 (S.D.N.Y. 2003) (“It is
well-established that trademark infringement actions alleging only general consumer
confusion do not threaten the direct harm to consumers for purposes of stating a claim
under section 349 . . . .”).
Plaintiff fails to allege any potential harm to consumers for purposes of a claim
arising under N.Y. Gen. Bus. Law § 349. 	Cambridge Pavers does not allege
“consumer oriented” conduct as required to state a claim arising under N.Y. Gen. Bus.
Law § 349. 	To the contrary, Plaintiff alleges that if Defendant’s conduct is not
enjoined, it will “continue to cause irreparable harm to the rights of Plaintiff.” Am.
Compl. ¶ 45 (emphasis added). Cambridge Pavers offers no plausible allegation that
Defendant offers inferior products to the public, which is the primary concern of N.Y.
Gen. Bus. Law § 349.4 	See Yang Ming Marine Trans. Corp. v. JAC Shipping, Inc.,
No. 20-CV-1118(FB)(RER), 2021 WL 7908014, at *6 (E.D.N.Y. Jan. 7, 2021) (“Section
4 It bears noting that, even accepting as true Cambridge Paver’s allegation that Defendant purchases
paving stones from the same distributor as Plaintiff, and then sells them to consumers, Am. Compl. ¶
13, this allegation supports a finding that Plaintiff itself sells products that are not suitable for
consumer use, as there is no allegation concerning modification of the paving stones by either party.
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349 was intended to protect consumers—in other works, ‘those who purchase goods
and services for personal, family or household use.’”) (quoting Sheth v. N.Y. Life Ins.
Co., 273 A.D.2d 72, 73, 709 N.Y.S.2d 74, 75 (1st Dep’t 2000)). As Cambridge Pavers
does not identify harm to the public at large as a result of Defendant’s alleged
trademark infringement, Plaintiff’s claim arising under N.Y. Gen. Bus. Law § 349
fails.
In any event. in its motion for a default judgment, Plaintiff does not address
its claim arising under N.Y. Gen. Bus. Law § 349. Accordingly, the Court considers
this claim to be abandoned and recommends that Cambridge Paver’s motion be
denied with respect to this cause of action for this independent reason. See Mulligan
Funding LLC v. Tommy Interior Contracting Corp., 741 F. Supp. 3d 1, 16 (E.D.N.Y.
2024) (deeming cause of action as being abandoned on a motion for default judgment
where not referenced in the plaintiff’s memorandum of law); Bally Produce Corp. v.
Deng, No. 23-CV-6580(ENV)(RML), 2024 WL 3813382, at *5 n.3 (E.D.N.Y. June 11,
2024) (considering claim to be abandoned where “no reference to it [was] made in the
motion 	for 	default 	judgment 	or 	accompanying 	submissions”); 	Gordon 	v. 	APS
Contractors Inc., No. 21-CV-259(WFK)(JRC), 2023 WL 2574740, at *9 (E.D.N.Y. Mar.
20, 2023) (“Plaintiffs’ failure to address these claims in their memorandum of law in
support of their second motion for default judgment serves as another basis for
denying plaintiffs’ motion as to these claims . . . .”); see also Payamps v. M&M
Convenience Deli & Grocery Corp., No. 16-CV-4895(LDH)(SJB), 2019 WL 8381264, at
*3 n.3 (E.D.N.Y. Dec. 9, 2019) (holding that on motion for default judgment, cause of
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action was abandoned where the plaintiff did not address it in motion). Accordingly,
the Court respectfully recommends that Plaintiff’s motion for a default judgment be
denied with respect to its claim arising under N.Y. Gen. Bus Law § 349.
C. 	Anticybersquatting Consumer Protection Act
“The anti-cybersquatting provision of the Lanham Act, 15 U.S.C. § 1125(d),
was enacted to protect holders of distinctive trademarks from ‘cybersquatting,’ which
involves the registration as domain names of well-known trademarks by non-
trademark holders who then try to sell the names back to the trademark owners.”
Webadviso v. Bank of Am. Corp., 448 F. App’x 95, 97 (2d Cir. 2011) (internal quotation
marks omitted) (quoting Sporty’s Farm L.L.C. v. Sportsman’s Mkt., Inc., 202 F.3d 489,
497 (2d Cir. 2000)). 	The Anticybersquatting Consumer Protection Act (“ACPA”)
provides a civil remedy for the owner of a protected mark against anyone who, with
“a bad faith intent to profit from that mark,” registers, traffics in, or uses a domain
name that is “identical or confusingly similar to or dilutive of” a mark that is famous
at the time the domain name is registered. 	15 U.S.C. § 1125(d)(1)(A)(i)-(ii)(II).
Accordingly, to prevail under this provision, a plaintiff must establish (1) ownership
of a famous protected mark, (2) bad faith, and (3) that the domain name is identical
or confusingly similar to or dilutive of Plaintiff’s mark(s). 	Id. at § 1125(d)(1)(a)
(establishing standard required to prevail on a cybersquatting claim); Boston Rest.
Assocs., Inc. v. Ward, No. 17-CV-5557(FB)(RML), 2018 WL 5456669, at *8 (E.D.N.Y.
Aug. 1, 2018) (denying motion for default judgment where the plaintiff “ha[d] not
presented evidence to suggest that defendants acted in bad faith”).
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Even accepting Plaintiff’s allegations as true, Cambridge Pavers fails to
establish liability against Defendant for violation of the ACPA. Plaintiff claims that
Defendant registered the domain name www.armorproofli.com “having a bad faith
intent 	to 	profit 	from 	using 	a 	domain 	name 	confusingly 	similar 	to 	Plaintiff’s
ARMORTEC trademark” and that Defendant “set up a Facebook page . . . with the
same bad faith intent.” Am. Compl. ¶¶ 49-50. Cambridge Pavers does not, however,
allege that it owned, attempted to own, or in any way sought to register any domain
name remotely like that which Defendant uses. Plaintiff’s conclusory allegations are
insufficient for purposes of the ACPA. See Zimmerli Textil AG v. Kabbaz, No, 14-CV-
1560(JS)(AYS), 2015 WL 5821523, at *6 (E.D.N.Y. Sept. 30, 2015) (dismissing
cybersquatting claim where “the Complaint never allege[d] that Defendants ever
offered to sell or exchange the Infringing Domain name”); Gioconda Law Grp. PLLC
v. Kenzie, 941 F. Supp. 2d 424, 437-38 (S.D.N.Y. 2013) (dismissing ACPA claim where
the court could not “find that Defendant acted with the bad faith intent to profit
prerequisite to an ACPA violation”) (internal quotation omitted). 	Plaintiff merely
alleges that Defendant uses a domain name that includes the word “armor,” which,
as described above, is insufficient to establish liability with respect to trademark
infringement. 	Kaplan, Inc. v. Yun, 16 F. Supp. 3d 341, 351 (S.D.N.Y. 2014)
(dismissing 	cybersquatting 	claim 	where 	the 	plaintiff 	failed 	to 	allege 	that 	the
defendant “attempt[ed] to profit specifically from squatting on the domain name in
bad faith”). 	Indeed, Cambridge Pavers does not allege that it ever sought to obtain
a domain name remotely similar to that which Defendant uses, specifically from
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Defendant or anyone else. 	Zimmerli, 2015 WL 5821523, at *6; Gioconda Law Grp.
PLLC, 941 F. Supp. 2d at 437-38. 	To the contrary, while neither dispositive nor
controlling as not specifically alleged in the Amended Complaint, the Court notes that
Plaintiff uses the domain name www.cambridgepavers.com, which is in no way
similar to Defendant’s registered domain name of www.armorproofli.com and does
not contain the word “armor” – the word that Plaintiff alleges creates confusion in
the 	market. 	Accordingly, 	Plaintiff’s 	allegations, 	even 	accepted 	as 	true, 	are
insufficient to state a claim for cybersquatting. 	See Boston Rest. Assocs., Inc., 2018
WL 5456669, at *8.
Finally, similar to Plaintiff’s claim arising under N.Y. Gen. Bus. Law § 349,
the Court also considers Plaintiff’s claim arising under the ACPA to be abandoned as
there is no reference to this cause of action in Plaintiff’s motion for default judgment.
See Mulligan Funding LLC, 741 F. Supp. 3d at 16; Bally Produce Corp., 2024 WL
3813382, at *5 n.3; Gordon, 2023 WL 2574740, at *9; see also Payamps, 2019 WL
8381264, at *3 n.3. 	Accordingly, the Court respectfully recommends that Plaintiff’s
motion for a default judgment be denied with respect to its claim for violation of the
ACPA.
IV. 	CONCLUSION
For the reasons set forth herein, the Court respectfully recommends that
Cambridge Paver’s motion for default judgment be denied in its entirety.
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V. 	OBJECTIONS
A copy of this Report and Recommendation is being served on Plaintiff by
electronic filing on the date below. Plaintiff is directed to serve a copy of it on
Defendants via first-class mail and promptly file proof of service by ECF. Any
objections to this Report and Recommendation must be filed with the Clerk of the
Court within fourteen days. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72; Fed. R. Civ.
P. 6(a) and 6(d). Failure to file objections within this period waives the right to appeal
the District Court’s Order. See Ferrer v. Woliver, No. 05-CV-3696, 2008 WL 4951035,
at *2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997);
Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).
Dated: 	Central Islip, New York 	/s/ Steven I. Locke
November 10, 2025 	STEVEN I. LOCKE
United States Magistrate Judge
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