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United States District Court, S.D. California

December 12, 2005.

FRED RAMIREZ an individual, Plaintiff,
MARKY SPARKY, INC., a California Corporation and MARK RAPPAPORT, an individual, Defendants.

The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge

WHEREAS, plaintiff, Fred Ramirez, filed this action alleging Federal Trademark Infringement, Federal Unfair Competition, Common Law Unfair Competition, violation of the Uniform Deceptive Trade Practices Act, violation of the Consumer Fraud & Deceptive Business Practices Act, Trademark Dilution and State Trademark Dilution in regard to allegations of infringement of trademarks STOMP and STOMP ROCKET, registered as Trademark Registration Numbers 2,221,554 and 2,338,580, respectively, arising from the use by defendant, Marky Sparky, Inc., of the words "stomp" and "rocket" in metatags associated with the webpage; WHEREAS, the time for defendant to answer or otherwise move to dismiss the Complaint has been extended on consent and defendant has not at this time answered or otherwise moved to dismiss the Complaint;

  WHEREAS, plaintiff initiated this action without providing any prior notice to defendant of the alleged infringement;

  WHEREAS, plaintiff has been informed that defendant, immediately upon being informed of the alleged infringement, removed from the webpage the words "stomp" and "rocket" from all metatags;

  WHEREAS, pursuant to Rule 68, Fed.R.Civ.P., and without making any admission of infringement or wrongdoing, defendant hereby tenders the following Offer of Judgment that:

1. Defendant will cease and desist from using the STOMP ROCKET and STOMP trademarks, or any name or mark which includes these marks, including, but not limited to, using the STOMP ROCKET and STOMP marks on the website;
2. Defendant will send letters to the internet search engines identified in Exhibit B of the Complaint requesting that the search engines remove all index listings of the website based on a search using the terms STOMP, STOMP ROCKET, or STOMPROCKET;
3. For a period of at least one (1) year, defendant will place a prominent disclaimer on the website stating that: "Marky Sparky, Inc. does not offer the STOMP ROCKET air rocket system and is not affiliated with the owner of the famous STOMP ROCKET trademark. If you would like to purchase a STOMP ROCKET air rocket system, please visit website.";
4. Defendant will include a disclaimer on the website stating that there is no affiliation between Marky Sparky and either of Mr. Fred 5. Ramirez or his related D & L Company; and
6. Defendant will pay to Plaintiff the sum of Twenty-Five Thousand ($25,000) Dollars as follows: (i) the sum of Twenty One Thousand ($21,000) Dollars contemporaneously with the execution of this Offer of Judgment; plus (ii) the sum of Four Thousand ($4,000) Dollars in twelve (12) equal monthly installments of Three Hundred Thirty Three and 33/100 ($333.33) Dollars commencing on January 6, 2006 and continuing until December 6, 2006, such sum being pre-payable at anytime without penalty.
WHEREAS, plaintiff has accepted this Offer Of Judgment; and
  WHEREAS, all parties have further stipulated to and consent to the present action being dismissed with prejudice, pursuant to Rule 41(a), Fed.R.Civ.P. IT IS HEREBY ORDERED that this matter is dismissed with prejudice, with each party paying its own costs and fees.


  Counsel for all parties consent to the terms of, and agree to the form of and entry of this Offer of Judgment.


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