IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION
October 30, 2009
DIRECT METALS INC., A CALIFORNIA CORPORATION, PLAINTIFF,
DIRECT METALS COMPANY, LLC, A GEORGIA LIMITED LIABILITY COMPANY, DEFENDANT.
The opinion of the court was delivered by: Honorable Alicemarie H. Stotler
CONSENT JUDGMENT AND RELATED COUNTERCLAIMS
The above-captioned action having come before this Court upon the pleadings, and it being represented to the Court that Plaintiff Direct Metals, Inc. ("DMI") and Defendant Direct Metals Company, LLC ("DMC") have compromised and have agreed upon a basis for settling this action, including the entry of this Consent Judgment, it is hereby,
ORDERED, ADJUDGED, AND DECREED that:
1. This Court has jurisdiction over the parties and the subject matter.
2. Venue is proper in this judicial district.
3. Judgment is hereby entered in favor of DMC, and against DMI, on the claims in the Complaint and Answer and Counterclaim.
4. DMI and each of its respective officers, directors, principals, agents, servants, and employees, and all those persons in active concert or participation with them, are hereby enjoined and permanently restrained from each of the following activities:
a. Using the mark DIRECT METALS or the phrase "direct metals" in connection with the sale of any good or provision of any service, or otherwise using the mark DIRECT METALS or the phrase "direct metals" to market, advertise, or identify any goods or services, or for any other commercial purpose, except in connection with the same classes of goods and services that DMI had already sold or provided as of August 11, 2009, which include raw stainless steel and other metal materials in coil, plate, sheet and bar form, and sourcing and other services related thereto.
b. After August 11, 2011, using, registering, or maintaining any registration of any Internet domain name or Universal Resource Locator ("URL") that includes the mark DIRECT METALS or the phrase "direct metals" as part of the domain name or Universal Resource Locator ("URL"), including but not limited to domain names including hyphens or other punctuation between the words "direct" and "metals," e.g., "direct-metals" or "direct.metals," or using the mark DIRECT METALS or phrase "direct metals" in the content of any page on the Internet or World Wide Web. However, DMI may maintain registration of the Internet domain name or Universal Resource Locator ("URL") "directmetals4u.com," solely for the purpose of using and maintaining email addresses with the suffix "@directmetals4u.com."
c. From August 11, 2009 through August 11, 2013, producing or distributing more than 500 copies annually of advertising flyers or other printed advertising materials that use or contain the mark DIRECT METALS or the phrase "direct metals."
d. From August 11, 2009 through August 11, 2013, maintaining more than one (1) central stocking location, and such stocking location will not be located east of the Missouri River.
e. After August 11, 2013, using the mark DIRECT METALS or the phrase "direct metals" as any part of any "dba," fictitious business name, trade name, trademark, service mark, or otherwise using the mark DIRECT METALS or the phrase "direct metals" to market, advertise, or identify any goods or services, or using the mark DIRECT METALS or the phrase "direct metals" for any commercial purpose.
f. DMI is permitted to continue to use Direct Metals, Inc. as its registered corporate name in filings with the Secretary of State of California, the Internal Revenue Service, and other tax and governmental authorities, and for any other noncommercial purpose.
5. By entering into this consent judgment, DMI does not admit any liability arising from the transactions or occurrences DMC alleges in its Counterclaim. However, DMI and DMC agree, and the Court by entering this consent judgment finds, that the parties to this consent judgment have negotiated this consent judgment in good faith, that the implementation of this consent judgment will allow the parties to this consent judgment to avoid continued, prolonged and complicated litigation, and that this consent judgment is fair and reasonable.
6. In that event that DMC or any successor ceases its business operations or abandons the DIRECT METALS mark, DMI will be relieved of its obligations under this Consent Judgment.
7. This is a final judgment. DMI and DMC each waive their respective rights to appeal this final judgment. Each party shall bear its own costs and attorneys' fees.
8. This Court retains jurisdiction over this Consent Judgment for the purpose of ensuring compliance with the terms hereof and of enabling DMI or DMC or any of them to apply to this Court at any time for further orders on matters the Court deems related or ancillary thereto.
9. In any action to enforce the provisions of this Consent Judgment, the prevailing party shall be entitled, in addition to any other relief granted by the Court, to its reasonable costs and attorneys' fees.
Honorable Alicemarie H. Stotler UNITED STATES DISTRICT JUDGE
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