UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
March 20, 2009
NIKE, INC., PLAINTIFF,
WILLIAM MOELLER, LISA MOELLER, KEJ ENTERPRISES AND DOES 1 -- 10, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Hon. George H. King Judge, United States District Court for the Central District of California
[PROPOSED] CONSENT DECREE PURSUANT TO STIPULATION
NOTE: CHANGES MADE BY THE COURT
The Court, having read and considered the Joint Stipulation for Permanent Injunction that has been executed by Plaintiff Nike, Inc. ("Nike" or "Plaintiff") and Defendants William Moeller, Lisa Moeller and KEJ Enterprises ("Defendants") in this action:
GOOD CAUSE APPEARING THEREFORE, THE COURT ORDERS that this Permanent Injunction based on the parties' stipulation and as to the parties defined herein only shall be and is hereby entered in the within action as follows:
1) This Court has jurisdiction over the parties to this action and over the subject matter hereof pursuant to pursuant to the provisions of the Lanham Act, 15 U.S.C. § 1051, et seq., as well as 28 U.S.C. § 1338(a) and 28 U.S.C. § 1331.
2) Service of process was properly made on the Defendants.
3) Nike owns or controls the pertinent rights in and to the trademarks listed in Exhibit "A" attached hereto and incorporated herein by this reference (The trademarks identified in Exhibit "A" are collectively referred to herein as the "Nike Trademarks").
4) Defendants have made unauthorized uses of the Nike Trademarks or substantially similar likenesses or colorable imitations thereof.
5) Defendants and their agents, servants, employees and all persons in active concert and participation with them who receive actual notice of the Injunction are hereby restrained and enjoined, pursuant to 15 U.S.C. § 1116, from:
a) Infringing the Nike Trademarks, either directly or contributorily, in any manner, by:
i) Importing, manufacturing, distributing, advertising, selling and/or offering for sale any unauthorized products which picture, reproduce, copy or use the likenesses of or bear a confusing similarity to any of the Nike Trademarks ("Unauthorized Products");
ii) Importing, manufacturing, distributing, advertising, selling and/or offering for sale in connection thereto any unauthorized promotional materials, labels, packaging or containers which picture, reproduce, copy or use the likenesses of or bear a confusing similarity to any of the Nike Trademarks;
iii) Engaging in any conduct that tends falsely to represent that, or is likely to confuse, mislead or deceive purchasers, Defendants' customers and/or members of the public to believe, the actions of Defendants, the products sold by Defendants, or Defendants themselves are connected with Nike, are sponsored, approved or licensed by Nike, or are affiliated with Nike;
iv) Affixing, applying, annexing or using in connection with the importation, manufacture, distribution, advertising, sale and/or offer for sale or other use of any goods or services, a false description or representation, including words or other symbols, tending to falsely describe or represent such goods as being those of Nike.
6) Defendants are ordered to deliver for destruction all Unauthorized Products, including footwear, and labels, signs, prints, packages, dyes, wrappers, receptacles and advertisements relating thereto in their possession or under their control bearing any of the Nike Trademarks or any simulation, reproduction, counterfeit, copy or colorable imitations thereof, and all plates, molds, heat transfers, screens, matrices and other means of making the same.
7) Except for the allegations contained herein, the claim alleged in the Complaint against Defendants by Nike are dismissed with prejudice.
8) This Injunction shall be deemed to have been served upon Defendants at the time of its execution by the Court.
9) The Court finds there is no just reason for delay in entering this Injunction and, pursuant to Rule 54(a) of the Federal Rules of Civil Procedure, the Court directs immediate entry of this Injunction against Defendants.
9) The Court shall retain jurisdiction of this action to entertain such further proceedings and to enter such further orders as may be necessary or appropriate to implement and enforce the provisions of this Injunction.
10) The above-captioned action, shall, upon filing by Plaintiff of the Settlement Agreement, Stipulation for Entry of Judgment and Judgment Pursuant to Stipulation, and requesting entry of judgment against Defendants, be reopened should Defendants default under the terms of the Settlement Agreement.
11) This Court shall retain jurisdiction over the Defendants for the purpose of making further orders necessary or proper for the construction or modification of this consent decree and judgment; the enforcement hereof; the punishment of any violations hereof, and for the possible entry of a further Judgment Pursuant to Stipulation in this action.
J. Andrew Coombs, A P. C. J. Andrew Coombs Annie Wang Attorneys for Plaintiff Nike, Inc. William Moeller By: William Moeller Defendant, in pro se Lisa Moeller By: Lisa Moeller Defendant, in pro se KEJ Enterprises By: William Moeller Defendant, in pro se
Trademark Registration Number Registration Date
AIR-SOLE 1,145,812 January 13, 1981 SWOOSH 1,200,529 July 6, 1982 NIKE 1,214,930 November 2, 1982 Nike(r) and Swoosh(r) Design 1,237,469 May 10, 1983 Nike(r) 1,277,066 May 8, 1984 Swoosh(r) Design 1,284,385 July 3, 1984 NIKE AIR w/Swoosh device 1,284,386 July 3, 1984 NIKE AIR 1,307,123 November 27, 1984 Air Jordan(r) 1,370,283 November 12, 1985 Swoosh device on shoe 1,323,342 March 5, 1985 Swoosh device 1,323,343 March 5, 1985 NIKE w/Swoosh device 1,325,938 March 19, 1985 AIR JORDAN 1,370,283 November 12, 1985 AIR MAX 1,508,348 October 11, 1988 AIR TRAINER 1,508,360 October 11, 1988 Jump Man device 1,558,100 September 26, 1989 Nike Air(r) 1,571,066 December 12, 1989 AIR SKYLON 1,665,479 November 19, 1991 AIR SOLO FLIGHT 1,668,590 December 17, 1991 AIR FLIGHT 1,686,515 May 12, 1992 AIR DESCHUTZ 1,735,721 November 24, 1992 Jump Man device 1,742,019 December 22, 1992 AIR TRAINER MAX 1,789,463 August 24, 1993 AIRMAX in oval 2,030,750 January 14, 1997 AIR UPTEMPO in crest 2,032,582 January 21, 1997 AIR with Swoosh device 2,068,075 June 3, 1997 NIKE with Swoosh device 2,104,329 October 7, 1997 ACG NIKE in triangle 2,117,273 December 2, 1997 Nike(r) 2,196,735 October 13, 1998 Nike(r) and Swoosh(r) Design 2,209,815 December 8, 1998
Stylized "B" 2,476,882 August 14, 2001 NIKE ALPHA PROJECT as device 2,517,735 December 11, 2001 WAFFLE RACER 2,652,318 November 19, 2002 PHYLITE 2,657,832 December 10, 2002 TRUNNER 2,663,568 December 17, 2002 DRI-STAR 2,691,476 February 25, 2003 PRESTO 2,716,140 May 13, 2003 TRIAX 2,810,679 February 3, 2004 WAFFLE TRAINER 2,893,674 October 12, 2004 THERMA-STAR 2,960,844 June 7, 2005 NIKE SHOX 2,970,902 July 19, 2005 Basketball player outline 2,977,850 July 26, 2005 NIKEFREE 3,087,455 May 2, 2006
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