UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
July 21, 2008
PACIFIC INFORMATION RESOURCES, INC., PLAINTIFF,
DIANA MUSSELMAN, INDIVIDUALLY, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Maxine M. Chesney
AGAINST DEFENDANT DIANA PARTIAL REVISED [PROPOSED] ORDER RE: MOTION FOR MUSSELMAN SUMMARY JUDGMENT AGAINST ADJUDICATION DEFENDANT DIANA MUSSELMAN
[Filed Concurrently With: Memorandum of Points and Authorities in Support of Motion for Summary Adjudication; Request for Judicial Notice;] 4th Am. Com. Filed: March 23, 2007 Expert Discovery Cut-Off: February 26, 2008 Trial: TBA Status Conference: TBA Hearing Date: TBA Time: 9:00 a.m. Dept.:
Motion for Partial Summary
Upon consideration of Plaintiff's Application for Entry of Default Judgment against motion Diana Musselman, and the Memorandum of Law and Declarations in support thereof, it is
ORDERED that Plaintiff's Application is GRANTED with the court finding as follows:
(1) The Court having considered the papers presented finds that there is no genuine dispute of material fact concerning liability of Diana Musselman under Pacific's
a. 7th Claim for Relief for Direct Copyright Infringement of the Content of Pacific's website, www.searchsystems.net, under 17 U.S.C. §§ 101, et. seq.;
b. 19th Claim for Relief for Direct Infringement of a Registered Trademark/Service Mark under 15 U.S.C. § 1125; 1114;
c. 30th Claim for Relief for Common Law Misappropriation; and
d. 31st Claim for Relief for Common Law Conversion; contained in Pacific's 4th Amended Complaint.
(2) As part of the Court finding there is no genuine dispute of material fact concerning liability of Diana Musselman under Pacific's 7th, 19th, 30th and 31st Claims for Relief, the Court specifically notes the following findings of fact: facts are undisputed:
(a) Plaintiff Pacific Information Resources, Inc. (Pacific) owns and operates the website located at www.searchsystems.net (the "WEBSITE");
(b) Pacific has registered two valid copyrights concerning the WEBSITE. One registration, bearing Registration No. TX 6-275-368 protects the text of the WEBSITE, bearing the URL www.searchsystems.net. Plaintiff's other valid copyright registration at issue in this stipulated permanent injunction, bears Registration No. TX 6-275-367 which protects the PHP Hyper Text Processor source code of the WEBSITE. True and correct copies of the copyright registrations are attached hereto and incorporated herein as Exhibit "1" (the "COPYRIGHTS");
(c) Pacific also has a valid registration from the United States Patent and Trademark Office for its service mark consisting of the word mark "search systems" within a design or drawing bearing USPTO Trademark Registration No. 2019094 (the "SERVICE MARK"). A true and correct copy of this registration for Plaintiff's registered SERVICE MARK is attached hereto and incorporated herein as Exhibit "2"; and
(d) Pacific has continuously, for the preceding five years, at the very least, continuously and openly used variations of its registered SERVICE MARK, but such variations, while not registered, acquired secondary meaning and thus are fully protected under applicable federal and state law as described in Pacific's Complaint on file with the court; that Pacific's registered SERVICE MARK and unregistered service marks are collectively hereinafter referred to as the "SERVICE MARKS" and that the unregistered but legally valid and protected SERVICE MARKS of Plaintiff include, but are not limited to, the terms:
"searchsystems", "searchsystems.net". the 7th, 19th, 30th, and 31st
Therefore, the Court hereby GRANTS Plaintiff Pacific's Motion for Partial Summary Judgment with respect to these claims for relief against Diana Musselman, and further declares this to be a final determination of liability for these particular claims for relief.
In addition, the Court Orders that Defendant Diana Musselman, her agents, servants, employees, officers, attorneys, successors, licensees, partners and assigns, and all persons acting in concert with each or any of them, are permanently enjoined from inducing, aiding, assisting, encouraging, enabling, engaging in, causing, materially contributing to, or otherwise facilitating through any means, whether in existence or later created, the unauthorized and/or unlicensed user reproduction, downloading, uploading, distribution of copies of Plaintiff's copyrighted works, including but not limited to any and all content, materials and information contracted in, derived from or otherwise, whether now in existence or later created.
The Court further orders that Defendant Diana Musselman, her husband, her son, her agents, servants, employees, officers, attorneys, successors, licensees, partners and assigns, and all persons acting in concert with each or any of them, are permanently enjoined reproducing, copying, manufacturing, importing, using, promoting, selling, renting, leasing, distributing, or displaying:
(1) any part of the WEBSITE or any website substantially similar to the copyright protected WEBSITE;
(2) any part of the SERVICE MARKS; or
(3) from authorizing anyone to do the same, or from exercising any other of the exclusive rights of a copyright owner and a service mark owner under the various federal and state statutes listed in Pacific's Complaint.
(4) selling or marketing services in any way that tends to deceive, mislead, or confuse the public into believing that any of the Musselman's websites or other activities were or are in any way sanctioned by or affiliated with Pacific's WEBSITE;
(5) diluting the distinctive quality of Pacific's SERVICE MARKS; or
(6) otherwise competing unfairly with Pacific or its WEBSITE; or
(7) from authorizing anyone to do the same, or from exercising any other of the exclusive rights of a copyright owner and a service mark owner under the various
Finally, the Court finds it is undisputed that Pacific incurred damages in the amount of federal and state statutes listed in Pacific's Complaint. $760,050 (see Bond Decl. paragraph 24), and further finds Diana Musselman is jointly and against Diana Musselman. severally liable with Mark Musselman, (see Civil Case No. 07-1918 MMC, Docket # 31), for such amount.
It is further ORDERED that JUDGMENT in the amount of $798,230.00 is ENTERED
Honorable MAXINE M. CHESNEY United States District Judge
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