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Aston v. Aston

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 2, 2009

MICHAEL ASTON, PLAINTIFF,
v.
JAY ASTON; JAMES STEVENSON; PETER RIZZO; CHRIS BELL; ROBERT ADAMS; AND LIBERTALIA ENTERTAINMENT, LLC., DEFENDANTS.
LIBERTALIA ENTERTAINMENT, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY, COUNTERCLAIMANT,
v.
MICHAEL ASTON, AN INDIVIDUAL, COUNTERDEFENDANT.

The opinion of the court was delivered by: James V. Selna United States District Court Judge

CONSENT JUDGMENT AND PERMANENT INJUNCTION

WHEREAS, plaintiff Michael Aston ("M.Aston"), defendants Jay Aston ("J.Aston"), James Stevenson ("Stevenson"), Peter Rizzo ("Rizzo"), Robert Adams ("Adams") (J.Aston, Stevenson, Rizzo, Bell and Adams collectively "the Band,"), and defendant and counterclaimant Libertalia Entertainment, LLC ("Libertalia") (the Band and Libertalia collectively "Defendants") have agreed in a separate agreement to settlement of the matters in issue between them and to the entry of this Consent Judgment and Permanent Injunction, it is hereby ORDERED, ADJUDGED, AND DECREED THAT:

1. This action was commenced by M.Aston, who in his complaint alleged: (1) Trademark Infringement (15 U.S.C. § 1114(1)); (2) Trademark Infringement, Unfair Competition, and False Designation of Origin (15 U.S.C. § 1125(a)); (3) Trademark Infringement (Cal. Bus. & Prof. Code § 14335); (4) Unfair Competition (Cal. Bus. & Prof. Code § 17200, et seq.); (5) False Advertising (15 U.S.C. § 1125(a)); (6) False Advertising (Cal. Bus. & Prof. Code §§ 17500 and 17535); and (7) Common Law Trademark Infringement. Defendants deny the allegations in the Complaint.

2. Libertalia commenced a counterclaim against M.Aston, wherein the First Amended Counterclaim ("Counterclaim") sought: (1) Cancellation of Federal Trademark Registration Due to Fraud, and (2) a Declaration of Non-Infringement. Plaintiff denies the allegations in the Counterclaim.

3. This Court has jurisdiction over all of the parties in this action and over the subject matter in issue based on 28 U.S.C. §§1331, 1338(a) and (b), and 1367(a), as well as 15 U.S.C. §1121(a). The parties, and each of them, hereby also expressly consent and submit to the non-exclusive jurisdiction of the English Courts. This Court and the English Court have continuing jurisdiction to enforce the terms and provisions of this Consent Judgment and Permanent Injunction. Venue is also proper in this Court pursuant to 28 U.S.C. §§1391(c) and (d); and the parties, and each of them, hereby expressly agree that the venue is also proper in the English Courts.

4. M.Aston is an individual resident of the United States, having his principal place residence at 347 N. Lima St., Burbank, California, 91505.

5. J.Aston, Stevenson, Rizzo, Bell and Adams are individual residents of the United Kingdom.

6. Libertalia is a California Limited Liability Company with its principal place of business at 18627 Brookhurst St., #396, Fountain Valley, California, 92708.

7. M.Aston and the Band have used GENE LOVES JEZEBEL (the "Mark") in connection with live musical performances and the sale of musical recordings (in addition to related merchandise collectively ("Goods & Services") in commerce in the United States ("US") and the United Kingdom ("UK").

8. M.Aston contends, and Defendant are informed and believe that, M.Aston is the owner of United States Trademark Registration No. 2,694,773 ("the Registration") for "GENE LOVES JEZEBEL". The Defendants hereby acknowledge that they are informed and believe that (i) M.Aston is the sole and exclusive owner of the Registration and (ii) his rights in and to the Registration and the Mark in connection with the Goods and Services are legal and valid in the US. A copy of the Registration is attached hereto as Exhibit 1.

9. The Band contends, and M. Aston is informed and believes that, Gene Loves Jezebel, LTD. ("LTD") is the owner of United Kingdom Trademark Registration No. 2342224 (the "UK Registration") for "GENE LOVES JEZEBEL". M.Aston hereby acknowledges that he is informed and believes that (i) LTD is the sole and exclusive owner of the UK Registration and (ii) its rights in and to the UK Registration and the Mark in connection with the Goods and Services are legal and valid in the UK. A copy of the UK Registration is attached hereto as Exhibit 2.

10. The Band, and each individual Member thereof, along with their predecessors, successors, assigns, affiliates, parent corporations, subsidiaries, representatives, agents, officers, directors, and shareholders, including, without limitation, and any entity owned or affiliated with any of them, are hereby permanently enjoined from using or display the Mark in commerce in the US in connection with the Goods and Services, including, without limitation, the promotion, advertising and marketing thereof, except under written license from M.Aston as set forth in Sections III and V of the Settlement Agreement, attached hereto as EXHIBIT 3, with said Sections being incorporated as if stated here.

11. M.Aston, along with his predecessors, successors, assigns, affiliates, parent corporations, subsidiaries, representatives, agents, officers, directors, and shareholders, including, without limitation, and any entity owned or affiliated with him, is hereby permanently enjoined from using or displaying the Mark in commerce in the UK in connection with the Goods and Services, including, without limitation, the promotion, advertising and marketing thereof, except under written license from the Band/LTD as set forth in Sections IV and V of the Settlement Agreement, attached hereto as EXHIBIT 3, with said Sections being incorporated as if stated here.

12. The parties shall bear their own attorneys' fees and costs.

13. The entire action is dismissed with prejudice as to Chris Bell (if not already dismissed) and Libertalia; and the Counterclaim is dismissed with prejudice.

IT IS SO ORDERED:

20090702

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