UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
July 18, 2008
EBAY INC., A DELAWARE CORPORATION, PLAINTIFF,
TELEBAY LLC, A DELAWARE LIMITED LIABILITY COMPANY, DEFENDANT.
STIPULATION FOR FINAL JUDGMENT AND PERMANENT INJUNCTION, AND FINAL JUDGMENT AND PERMANENT JUDGMENT THEREON
The parties to this action, plaintiff eBay Inc. ("eBay") and defendant Telebay LLC ("Defendant"), by their authorized signatures and/or the signatures of their counsel, do stipulate and agree as follows:
1. Defendant operates a Web site for purposes of promoting telecommunications goods and services under the name and mark TELEBAY and at the URL address http://www.telebay.com. Brad Edwards is the CEO of Defendant and is authorized to execute this stipulation on its behalf.
2. eBay advised Defendant that it objected to, among other things, its use of the "Telebay" name, corporate name and trademark, as well as domain names containing the TELEBAY mark, as violations of eBay's rights in various federally-registered trademarks, including the "eBay" word mark and logo.
3. On March 14, 2008, eBay filed this action against Defendant, seeking preliminary and permanent injunctive relief, an accounting of all revenues and profits, costs and attorneys' fees, and an order that the Registrar of the TELEBAY.COM domain name cancel the registration, alleging (1) federal trademark infringement under 15 U.S.C. § 1114, (2) federal trademark dilution under 15 U.S.C. § 1125, (3) false designation of origin under 15 U.S.C. § 1125, (4) common law trademark infringement, (5) common law unfair competition, (6) trademark infringement under Cal. Bus. & Prof. Code § 14245, (7) trademark dilution under Cal. Bus. & Prof. Code § 14247, and (8) unfair competition under Cal. Bus. & Prof. Code §§ 17200 et seq. (the "Action").
4.The parties have discussed their dispute and desire to resolve the Action amicably and without any further involvement from this Court, and hereby enter into this stipulation in accordance with a separate settlement agreement between the parties (the "Agreement").
5.Defendant acknowledges eBay's rights in its trademarks, including the federally-registered "eBay" word mark and logo, and has agreed to permanently cease and desist from using the TELEBAY name, mark and corporate name and any domain names containing the TELEBAY mark. In consideration for Defendant's actions, promises, and agreements as stated in this Stipulation, and provided that Defendant is in full compliance with the terms of this stipulation and the parties' Agreement, eBay agrees to allow Defendant a reasonable period of time in which to transition to a new name and mark as follows:
(a) Telebay shall immediately transfer the domain names telebay.com, telebay.net and telebaymall.com to eBay;
(b) Except as set forth in paragraph 5(c), Defendant shall permanently cease use of the TELEBAY name, mark and corporate name by September 25, 2008;
(c) As long as Defendant is in compliance with the Agreement, Defendant may redirect users from the telebay.com, telebay.net, and telebaymall.com URLs to a newly-named, noninfringing Web site until March 25, 2009.
6. Defendant agrees not to sell, transfer, or make any commercial or other use of the domain name intelebay.com, and to allow its registration for that domain to expire in the ordinary course.
7. The parties concede that this Court has subject matter jurisdiction of the Action and that, by agreeing to a judgment in this matter, they voluntarily consent to this Court exercising personal jurisdiction over them.
8. The parties agree that the terms herein constitute a full and fair settlement of all claims raised resulting from known facts in this matter and should be entered as the final judgment in the Action by the Court.
TERMS OF JUDGMENT
1. Defendant, all of Defendant's employees or agents, and persons acting in concert or participation with Defendant are permanently enjoined and restrained from:
(a)Using or seeking to register the TELEBAY name for any purpose, whether as a trade name, trademark, service mark, domain name, corporate name or other trade identity, except as set forth in Paragraphs 5(b) and (c) of this stipulation;
(b)Using or seeking to register for any purpose a trade name, trademark, service mark, domain name, corporate name or other trade identity that is confusingly similar to the term EBAY, including but not limited to one that combines a generic or descriptive term with the distinctive BAY suffix of the EBAY mark;
(c)Selling the TELEBAY.COM, TELEBAY.NET, TELEBAYMALL.COM and INTELEBAY.COM domain name registrations to anyone or otherwise transferring the TELEBAY.COM, TELEBAY.NET, TELEBAYMALL.COM and INTELEBAY.COM domain name registrations to anyone other than eBay;
(d)Taking any further action that infringes eBay's intellectual property rights.
2. Each party is to bear its own costs and attorneys' fees in this matter.
3. The injunction entered pursuant to this Stipulation shall take effect immediately.
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