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Quiksilver, Inc. v. Wal-Mart Stores


June 4, 2009


The opinion of the court was delivered by: Hon. Dale S. Fischer United States District Judge


Plaintiff Quiksilver, Inc. ("Plaintiff" or "Quiksilver") and Defendant Kory Mercantile Co. ("Defendant") have entered into a Settlement Agreement and Mutual Release as to the claims in the above referenced matter. Defendant, 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. Quiksilver is the owner of the world-famous word/mark "Quiksilver." On April 11, 1967, the Quiksilver mark was registered on the Principal Register of the United States Patent & Trademark Office as Registration No. 827212, for "Men's clothing namely, suits, jackets, topcoats, trousers, and sport coats." Subsequent thereto, Quiksilver has registered the Quiksilver mark and a variety of other marks, including the Mountain and Wave design logo, on merchandise ranging from luggage, watches and jewelry, sunglasses, swimwear, and all other varieties of men's and women's clothing and footwear (collectively "Quiksilver Marks").

3. In addition to the trademark registrations, the "Quiksilver Mountain and Wave" logo (below) is a copyrighted design with U.S. Copyright Registration Nos. VA 1088115 and VA 1088246.

4. In or around July 1997, Quiksilver registered the ROXY Heart Device which is made up of two mirror Quiksilver Mountain and Wave logos. The word/mark "Roxy" and the Roxy Rounded Heart Device were registered thereafter. Quiksilver's Roxy Marks include, but are not limited to the following marks:

Mark Reg. No. Reg. Date

1/18/05 2/13/01 2/23/99 3/2/99 6/22/99 12/7/99 8/8/00 7/31/01 5/13/03 1/27/04 6/8/04 6/29/04 2919733 2427898 2225688 2228883 2255435 2297591 2375481 2474406 2714839 2809462 2,851,891 2858806


Mark Reg. No. Reg. Date

2,988,186 2,992,120 3298684 8/23/05 9/6/05 9/25/07

7/26/05 11/30/04 7/22/97 1/26/99 9/16/03 6/15/04 11/9/04 6/7/05 1/24/06 2/13/07 2978299 2907184 2081099 2220442 2765669 2855019 2902220 2960713 3048901 3207330

(Roxy Heart Device)

2978299 7/26/05

(Roxy Rounded Heart Device)

5. Plaintiff has alleged that Defendant's purchase and sale of goods bearing piratical copies of Plaintiff's Roxy Marks constitutes trademark infringement under the Lanham Act and copyright infringement and unfair competition under the Copyright Laws, 17 U.S.C. § 501, et seq and under the common law.

6. Defendant and its 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 Quiksilver's registered copyrights and trademarks, specifically the Roxy Marks, 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 Roxy Marks, or marks confusingly similar or substantially similar to the Roxy Marks, and, specifically from:

(a) using the Roxy Marks or any reproduction, counterfeit, copy or colorable imitation of the Roxy Marks in connection with the manufacture, importation, distribution, advertisement, offer for sale and/or sale of merchandise comprising not the genuine products of Quiksilver, or in any manner likely to cause others to believe that the Counterfeit Products are connected with Quiksilver or Quiksilver's genuine merchandise bearing the Roxy Marks;

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

(c) committing any other acts calculated to cause purchasers to believe that Defendant's products are Quiksilver's 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 Roxy Marks, or any reproduction, counterfeit, copy or colorable imitation of same.

7. Without any admission of liability, the parties have agreed that Defendant shall pay to Plaintiff an amount in settlement of Plaintiff's demand for damages, profits, costs, disbursements, and attorneys' fees based upon Defendant's alleged infringing activities. Plaintiff and Defendant 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 Defendant Kory Mercantile Co.

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



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