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California Board Sports, Inc. v. Air Nice Shoes

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 13, 2009

CALIFORNIA BOARD SPORTS, INC., A CALIFORNIA CORPORATION; QUIKSILVER, INC., A DELAWARE CORPORATION, PLAINTIFFS,
v.
AIR NICE SHOES, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Percy Anderson United States District Judge

ORDER RE CONSENT JUDGMENT INCLUDING A PERMANENT INJUNCTION; VOLUNTARY DISMISSAL WITH PREJUDICE AS TO DEFENDANTS NICE DAY INDUSTRIAL U.S.A. INC. AND CARLA CANTILLA

Plaintiffs California Board Sports, Inc. and Quiksilver, Inc. ("Plaintiffs") and Defendant Defendants Nice Day Industrial U.S.A. Inc. and Carla Cantilla ("Defendants") have entered into a Settlement Agreement and Mutual Release as to the claims in the above referenced matter. Defendants, having agreed to consent to the below terms, it is hereby:

ORDERED, ADJUDGED, and DECREED as among the parties hereto that:

1. This Court has jurisdiction over the parties to this Final Judgment and has jurisdiction over the subject matter hereof pursuant to 15 U.S.C. § 1121.

2. Plaintiff Quiksilver, Inc. ("Quiksilver") is the owner of the DC Shoes(r) Marks, including but not limited to, U.S. Registration Nos. 2317622, 2427124, and 3040219 (hereinafter "DC Marks").

3. Plaintiff California Boards Sports, Inc. ("CBSI") is the owner of the brand "Osiris," a company engaged in the sale of casual shoes, accessories and apparel in the skateboarding industry. CBSI uses several different designs and patterns on its shoes to decorate and embellish the shoes, including, but not limited to, the copyrighted designs entitled "Smoking Gun" (VA0001630187) and "Dollar Rose" (VA0001630186) (hereinafter collectively "Osiris Designs")

4. Plaintiffs have alleged that Defendants' purchase and sale of footwear falsely bearing the Osiris Designs constitutes copyright infringement under the Copyright Act and under the common law.

5. Defendants and their agents, servants, employees and all persons in active concert and participation with it who receive actual notice of this Final Judgment are hereby permanently restrained and enjoined from infringing upon the Osiris Designs, either directly or contributorily, in any manner, including generally, but not limited to manufacturing, importing, distributing, advertising, selling and/or offering for sale any unauthorized product bearing the Osiris Designs, or marks confusingly similar to or constituting a colorable imitation thereof, and, specifically from:

(a) using the Osiris Designs or any reproduction, counterfeit, copy or colorable imitation of same in connection with the manufacture, importation, distribution, advertisement, offer for sale and/or sale of merchandise comprising not the genuine products of Plaintiffs, or in any manner likely to cause others to believe that the counterfeit products are connected with Plaintiffs or Plaintiffs' genuine merchandise;

(b) passing off, inducing or enabling others to sell or pass off any products or other items that are not Plaintiffs' genuine merchandise as and for Plaintiffs' genuine merchandise;

(c) committing any other acts calculated to cause purchasers to believe that Defendants' products are Plaintiffs' genuine merchandise unless they are such; and

(d) shipping, delivering, holding for sale, distributing, returning, transferring or otherwise moving, storing or disposing of in any manner items falsely bearing the Osiris Designs, or any reproduction, counterfeit, copy or colorable imitation of same.

6. Defendants warrant and represent that they have never purchased and/or sold any products bearing Quiksilver's DC Marks, or any reproduction, counterfeit, copy or colorable imitation thereof.

7. Plaintiffs and Defendants shall bear their own costs associated with this action.

8. The execution of this Final Judgment by Counsel for the parties shall serve to bind and obligate the parties hereto.

9. The jurisdiction of this Court is retained for the purpose of making any further orders necessary or proper for the construction or modification of this Final Judgment, the enforcement thereof and the punishment of any violations thereof. Except as otherwise provided herein, this action is fully resolved with prejudice as to Defendants Nice Day Industrial U.S.A. Inc and Carla Cantilla.

10. This Final Judgment shall be deemed to have been served upon Defendants at the time of its execution by the Court.

ORDER

IT IS SO ORDERED.

20090513

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