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Silverlit Toys Manufactory Ltd. v. JP Commerce

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


May 3, 2010

SILVERLIT TOYS MANUFACTORY LTD., A HONG KONG COMPANY, AND SPIN MASTER LTD., A CANADIAN CORPORATION, PLAINTIFFS,
v.
JP COMMERCE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, D/B/A WWW.JPCOMMERCE.COM., THINK RC FORM UNKNOWN, D/B/A WWW.THINKRC.COM. DEFENDANTS.
JP COMMERCE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, D/B/A WWW.JPCOMMERCE.COM., THINK RC FORM UNKNOWN, D/B/A WWW.THINKRC.COM. COUNTER-CLAIMANTS,
v.
SILVERLIT TOYS MANUFACTORY LTD., A HONG KONG COMPANY, AND SPIN MASTER LTD., A CANADIAN CORPORATION, COUNTER-DEFENDANTS.

The opinion of the court was delivered by: Hon. Christina A. Snyder

STIPULATED PERMANENT INJUNCTION AND DISMISSAL

This Stipulated Permanent Injunction and Dismissal is entered into by and among Plaintiffs Silverlit Toys Manufactory Ltd. ("Silverlit") and Spin Master Ltd. ("Spin Master") (collectively "Plaintiffs") on the one hand, and Defendants JP Commerce, LLC (d/b/a www.jpcommerce.com, Think RC, and www.thinkrc.com) (collectively, "Defendants") on the other hand, in accordance with and pursuant to the terms of a Settlement Agreement among the parties to this action.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

1. This Court has jurisdiction over the parties and subject matter of this action.

2. Defendant JP Commerce, LLC is a California limited liability company.

3. Defendant JP Commerce LLC is also doing business as listed defendant Think RC.

4. Defendants jpcommerce.com and thinkrc.com are websites registered to, owned, operated, and/or controlled by JP Commerce, LLC.

5.Spin Master is the owner of U.S. Copyright Registration No. VA 1-645-947, entitled "Toy Car -- Sports" (the "Car Copyright"), issued on November 19, 2008. The Car Copyright is valid and enforceable.

6. Spin Master is the exclusive licensee of U.S. Patent No. D590,896 (the "'896 Patent"), entitled "Toy Car Base," which issued on April 21, 2009. The '896 Patent is valid and enforceable.

7. Silverlit is the owner of U.S. Copyright Registration No. VAu694-351 ("Helicopter Copyright"), issued on January 23, 2006. The Helicopter Copyright is valid and enforceable.

8. Silverlit is the owner of U.S. Copyright Registration No. VA 1-631-768 ("Helicopter and Controller Copyright"), issued on May 8, 2008. The Helicopter and Controller Copyright is valid and enforceable.

9. Silverlit is the owner of U.S. Copyright Registration No. VA 1-630-182 ("Controller Copyright"), issued on April 16, 2008. The Controller Copyright is valid and enforceable.

10.Silverlit is the owner by assignment of U.S. Patent No. 7,467,984 (the "'984 Patent"), entitled "Helicopter," which issued on December 28, 2008. The '984 Patent is valid and enforceable.

11. Silverlit is the owner by assignment of U.S. Patent 7,425,168 (the "'168 Patent"), entitled "Toy Helicopter," issued on September 16, 2008. The '168 Patent is valid and enforceable.

12. Defendants make, import, advertise, distribute, market, promote, display, reproduce, offer for sale and/or sell a remote controlled toy car known as the "Space Spider Wall Climbing Mini RC Car." True and correct copies of photographs of the Space Spider Wall Climbing Mini RC Car are attached hereto as Exhibit A.

13. Defendants make, import, advertise, distribute, market, promote, display, reproduce, offer for sale and/or sell the "Vespid 2 Super Miniature (aka "X-Type Infrared 2ch Mini RC Helicopter")("Vespid"); the "Syma Fairy Infrared 2ch Micro RC Helicopter" ("Fairy"); the "Syma Flexible Bird Infrared 2ch Micro RC Helicopter" ("Flexible Bird"); and the "Mini 818-16 Infrared Control Miniature Helicopter" ("818 Apache") remote controlled toy helicopters (collectively, the Accused Helicopters"). True and correct copies of photographs of the Vespid, Fairy, Flexible Bird, and 818 Apache are attached hereto as Exhibits B - E, respectively.

14. Defendants waive any further findings of fact and conclusions of law and all rights to appeal from this Permanent Injunction.

15. Defendants, their successors, assigns, owners, principals, partners, officers, directors, agents, servants, employees, any and all persons acting in concert or participation with them, and any and all persons having actual notice of this Permanent Injunction are immediately and permanently enjoined from:

a. Making, using, selling, offering for sale, importing into the United States, marketing, reproducing, distributing, receiving, forwarding, shipping, displaying (on their websites or otherwise), or in any way commercially exploiting the Space Spider Wall Climbing Mini RC Car as depicted in Exhibit A, or any other toy car that is substantially similar to Spin Master's toy car as protected by the Car Copyright, or any other toy car with a car base that is substantially similar to the car base design claimed in the '896 Patent;

b. Making, using, selling, offering for sale, importing into the United States, marketing, reproducing, distributing, receiving, forwarding, shipping, displaying (on their websites or otherwise), or in any way commercially exploiting the Vespid as depicted in Exhibit B, or any other toy helicopterthat is substantially similar to the helicopter protected by the Helicopter Copyright;

c. Making, using, selling, offering for sale, importing into the United States, marketing, reproducing, distributing, receiving, forwarding, shipping, displaying (on their websites or otherwise), or in any way commercially exploiting the Vespid and controller for the Vespid as depicted in Exhibit B, or any other toy helicopter and controller that are substantially similar to the helicopter and controller protected by the Helicopter and Controller Copyright;

d. Making, using, selling, offering for sale, importing into the United States, marketing, reproducing, distributing, receiving, forwarding, shipping, displaying (on their websites or otherwise), or in any way commercially exploiting the controller for the Vespid, Fairy, and Flexible Bird as depicted in Exhibits B-D, or any other controllers that employ a design that is substantially similar to the design protected by the Controller Copyright;

e. Making, using, selling, offering for sale, importing into the United States, marketing, reproducing, distributing, receiving, forwarding, shipping, displaying (on their websites or otherwise), or in any way commercially exploiting the Accused Helicopters, as depicted in Exhibits B-E, or any toy helicopters that infringe one or more claims of the '984 and/or '168 Patents;

f. Assisting, aiding or abetting another person or business entity in engaging in or performing any of the activities enumerated in subparagraphs (a) through (e) above.

16. Defendants represent and warrant that the Space Spider Wall Climbing Mini RC Car, Fairy, and Flexible Bird have been removed from their websites and Defendants no longer have any inventory of any of these products in their possession, custody or control.

17. Defendants represent and warrant that the 818 Apache and Vespid have been removed from their websites and the remaining inventory of the 818 Apache (129 units) and the Vespid (77 units) in their possession, custody or control will be delivered to Plaintiffs' counsel for destruction within three (3) business days of entry of this Permanent Injunction.

18. Pursuant to Federal Rules of Civil Procedure 41(a)(A)(ii) and 41(c), all claims and counterclaims in this action are hereby dismissed. Each party shall bear its own attorney's fees and costs in connection with this action; provided, however, that in the event any party files a motion or other proceeding to enforce or interpret the terms of this Permanent Injunction or the Settlement Agreement, the prevailing party shall be entitled to recover all attorney's fees and costs incurred in connection with such a motion and all enforcement proceedings.

19. This Court retains jurisdiction over this action and to the extent necessary to enforce and amend this Permanent Injunction and to determine any issues which may arise concerning this Permanent Injunction or the Settlement Agreement.

IT IS SO STIPULATED.

DATED: April 21, 2010

DATED: April 23, 2010

DATED: April 29, 2010

IT IS SO ORDERED.

Hon. Christina A. Snyder U.S. District Court Central District of California

20100503

© 1992-2010 VersusLaw Inc.



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