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Deckers Outdoor Corp. v. McKelvey

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 7, 2010

DECKERS OUTDOOR CORPORATION, PLAINTIFF,
v.
ALEXIS MCKELVEY A/K/A ALEXIS ZAHNER; DAVID GRINDLE; TRACY KELLEY; KELLEY BOUTIQUES, LLC; KAOSSURF, LLC D/B/A KAOS SURF; NICHOLAS CAVAROCCHI AND DOES 1 -- 10, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Hon. Manuel L. Real United States District Judge

CONSENT DECREE PURSUANT TO STIPULATION

The Court, having read and considered the Joint Stipulation for Permanent Injunction that has been executed by Plaintiff Deckers Outdoor Corporation ("Deckers" or "Plaintiff") and Defendants Tracy Kelley and Kelley Boutiques, LLC (collectively "Defendants"), in this action:

GOOD CAUSE APPEARING THEREFORE, THE COURT ORDERS that this Permanent Injunction shall be and is hereby entered in the within action as follows:

1) This Court has jurisdiction over the parties to this action and over the subject matter hereof pursuant to pursuant to the provisions of the Lanham Act, 15 U.S.C. § 1051, et seq., as well as 28 U.S.C. § 1338(a) and 28 U.S.C. § 1331.

2) Service of process was properly made on the Defendants.

3) Deckers owns or controls the pertinent rights in and to the trademarks listed in Exhibits "A" and "B" attached hereto and incorporated herein by this reference (The trademarks identified in Exhibits "A" and "B" are collectively referred to herein as the "Deckers Trademarks").

4) Defendants have made unauthorized uses of the Deckers Trademarks or substantially similar likenesses or colorable imitations thereof.

5) Defendants and their agents, servants, employees and all persons in active concert and participation with them who receive actual notice of the Injunction are hereby restrained and enjoined, pursuant to 15 U.S.C. § 1116, from:

a) Infringing the Deckers Trademarks, either directly or contributorily, in any manner, by:

i) Importing, manufacturing, distributing, advertising, selling and/or offering for sale any unauthorized products which picture, reproduce, copy or use the likenesses of or bear a confusing similarity to any of the Deckers Trademarks ("Unauthorized Products");

ii) Importing, manufacturing, distributing, advertising, selling and/or offering for sale in connection thereto any unauthorized promotional materials, labels, packaging or containers which picture, reproduce, copy or use the likenesses of or bear a confusing similarity to any of the Deckers Trademarks;

iii) Engaging in any conduct that tends falsely to represent that, or is likely to confuse, mislead or deceive purchasers, Defendants' customers and/or members of the public to believe, the actions of Defendants, the products sold by Defendants, or Defendants themselves are connected with Deckers, are sponsored, approved or licensed by Deckers, or are affiliated with Deckers;

iv) Affixing, applying, annexing or using in connection with the importation, manufacture, distribution, advertising, sale and/or offer for sale or other use of any goods or services, a false description or representation, including words or other symbols, tending to falsely describe or represent such goods as being those of Deckers.

6) Defendants are ordered to deliver for destruction to the extent that they have not already done so, all Unauthorized Products, including footwear, and labels, signs, prints, packages, dyes, wrappers, receptacles and advertisements relating thereto in their possession or under their control bearing any of the Deckers Trademarks or any simulation, reproduction, counterfeit, copy or colorable imitations thereof, and all plates, molds, heat transfers, screens, matrices and other means of making the same.

7) Except for the allegations contained herein for the purpose of entering this consent decree, the claims alleged in the Complaint against Defendants Tracy Kelley and Kelley Boutiques, LLC only, by Deckers are dismissed with prejudice.

8) This Injunction shall be deemed to have been served upon Defendants at the time of its execution by the Court.

9) The Court finds there is no just reason for delay in entering this Injunction and, pursuant to Rule 54(a) of the Federal Rules of Civil Procedure, the Court directs immediate entry of this Injunction against Defendants.

9) The Court shall retain jurisdiction of this action to entertain such further proceedings and to enter such further orders as may be necessary or appropriate to implement and enforce the provisions of this Injunction.

10) The above-captioned action, shall, upon filing by Plaintiff of the Settlement Agreement, Stipulation for Entry of Judgment and Judgment Pursuant to Stipulation, and requesting entry of judgment against Defendants, be reopened should Defendants default under the terms of the Settlement Agreement.

11) This Court shall retain jurisdiction over the Defendants for the purpose of making further orders necessary or proper for the construction or modification of this consent decree and judgment; the enforcement hereof; the punishment of any violations hereof, and for the possible entry of a further Judgment Pursuant to Stipulation in this action.

EXHIBIT A

UGG U.S. Registration No. 3,050,925

EXHIBIT B

Sun Logo U.S. Registration No. 2,314,853

20100107

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