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CB Worldwide, Inc. v. Xena Express

October 6, 2009

CB WORLDWIDE, INC. D/B/A MAMMOTH PET PRODUCTS, A CALIFORNIA CORPORATION PLAINTIFF,
v.
XENA EXPRESS, INC., AN ALABAMA CORPORATION, AND DOES 1 TO 10 DEFENDANTS.



The opinion of the court was delivered by: Honorable John F. Walter United States District Court Judge

NOTE: CHANGES MADE BY THE COURT

AND RELATED ACTIONS

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER ON MOTION FOR DEFAULT JUDGMENT AND PERMANENT INJUNCTION

Whereas, Plaintiff CB Worldwide, Inc. d/b/a Mammoth Pet Products ("Mammoth") filed its Complaint against Defendant Xena Express, Inc., formerly Pet Friendly, Inc., formerly Essential Pet Products, Inc. ("Defendant") for:

(1) Declaratory Judgment that Defendant's U.S. Design Patent No. D497,225 is invalid;

(2) Declaratory Judgment that Mammoth has not infringed Defendant's U.S. Design Patent Nos. D497,225, D456,958, D465,885, and D382,678;

(3) Declaratory Judgment that Defendant does not own any proprietary rights in any alleged trademarks, trade dresses and/or product configuration marks in "variegated rope toys of any configuration";

(4) Declaratory Judgment that Defendant's alleged trademarks, trade dresses and/or product configuration marks in "variegated rope toys of any configuration" are invalid;

(5) Declaratory Judgment that Mammoth does not and has not infringed Defendant's alleged trademarks, trade dresses and/or product configuration marks in "variegated rope toys of any configuration";

(6) Judgment that Defendant has unfairly competed with Mammoth, inter alia, by unlawfuly accusing Mammoth and its customers of infringing non-existent, invalid and/or unenforceable patents, trademarks, trade dresses, and/or product configuration marks, because of which Mammoth has suffered substantial injury, loss and damage; and

(7) Judgment that Defendant has intentionally interfered with Mammoth's economic advantage, to wit, Mammoth's existing contractual relationships with its customers by unlawfuly accusing Mammoth's customers of infringing non-existent, invalid and/or unenforceable patents, trademarks, trade dresses, and/or product configuration marks, because of which Mammoth has suffered substantial injury, loss and damage;

Whereas, Defendant has failed to file an Answer or otherwise respond to Mammoth's Complaint, and the Clerk's Entry of Defendant's Default was entered on August 7, 2009;

Whereas, Mammoth has filed its Motion For Entry of Default Judgment and Permanent Injunction against Defendant, and there appears to be no reason for the delay of the entry of default judgment and permanent injunction by the Court against Defendant;

Whereas, Mammoth's Motion For Entry of Default Judgment and Permanent Injunction was considered and ruled upon on October 6, 2009 by the Honorable John F. Walter; and

Whereas, having considered the evidence and papers presented by Mammoth and noting the lack of appearance and opposition by Defendant despite numerous instances of notice and service, and good cause appearing therefore, the Court makes the following findings of fact and conclusions of law:

1. Mammoth is in the business of manufacturing, distributing and selling numerous dog chew toys including lengths of rope tied in loop rings and/or figure-eight loop rings including a tennis ball thereupon (the "Accused Products") (Byrne Decl. ¶4: Exhibit A);

2. In numerous letters and e-mails, Defendant has accused Mammoth and several of its customers of infringing various forms of intellectual property, including design patents and trademarks, trade dresses, and/or product configuration marks, allegedly owned by Defendant by virtue of the sale of the Accused Products. ...


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