UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
December 10, 2010
PEPSICO, INC., A NORTH CAROLINA CORPORATION, THE CONCENTRATE MANUFACTURING COMPANY OF IRELAND, A CORPORATION GOVERNED BY THE LAWS OF THE REPUBLIC OF IRELAND, PLAINTIFFS,
SPE TRADING, INC., A CALIFORNIA CORPORATION, AND DOES 1-10, DEFENDANTS.
The opinion of the court was delivered by: The Hon. Dean D. Pregerson U.S. District Judge
ORDER RE: ENTRY OF FINAL JUDGMENT STIPULATION FOR ENTRY OF JUDGMENT BASED ON THE STIPULATION BETWEEN THE PARTIES, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED that:
1. This Court has subject matter jurisdiction by virtue of the fact that:
(a) this is an action arising under the Trademark Act of 1946, as amended, 15 U.S.C. §§ 1051, et seq. (the Lanham Act), jurisdiction being conferred in accordance with 15 U.S.C. § 1121 and 28 U.S.C. § 1338(a) and (b); and (b) jurisdiction for the California common-law claims is conferred in accordance with the principles of supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).
2. This Court has personal jurisdiction over SPE Trading, a California corporation.
3. Venue is proper in this Court under 28 U.S.C. § 1391(b) in that SPE Trading does business in this district and a substantial part of the events or omissions giving rise to the claims occurred in this district.
4. PepsiCo owns, inter alia, the following federal trademark registrations issued by the United States Patent and Trademark Office for the PEPSI, PEPSI-COLA and Globe Design trademarks (collectively, the "PEPSI marks") used in connection with its PEPSI products:
MARK REG. NO. REG. DATE GOODS
PEPSI 824,150 Feb. 14, 1967 Soft drinks and syrups and concentrates for the preparation thereof PEPSI-COLA 824,151 Feb. 14, 1967 Soft drinks and syrups and concentrates for the preparation thereof 824,153 Feb. 14, 1967 Soft Drinks PEPSI and Design 2,100,417 Sept. 23, 1997 Soft drinks PEPSI and Design 2,104,304 Oct. 7, 1997 Soft drinks Said registrations are valid, subsisting and incontestable and constitute conclusive evidence of PepsiCo's exclusive right to use the PEPSI marks for the goods specified in the registrations, pursuant to 15 U.S.C. §§ 1065 and 1115(b).
5. CMCI owns, inter alia, the following federal trademark registrations issued by the United States Patent and Trademark Office for the MANZANITA SOL marks (collectively, the "MANZANITA SOL marks") used in connection with its MANZANITA SOL products:
MARK REG. NO. REG. DATE GOODS MANZANITA SOL 3,156,112 October 17, Soft drinks, and syrups and concentrates for making the same. 2006
MANZANITA SOL and Design 3,167,654 November 7, Soft drinks, and syrups and concentrates for 2006 making the same.
Said registrations are valid, subsisting and incontestable and constitute conclusive evidence of CMCI's exclusive right to use the MANZANITA SOL marks for the goods specified in the registrations, pursuant to 15 U.S.C. §§ 1065 and 1115(b).
6. Without Plaintiffs' consent, SPE Trading has sold in the United States soft drinks manufactured and meant for sale in Mexico bearing the PEPSI and MANZANITA SOL marks (hereinafter "Mexican product").
7. The Mexican product sold by SPE Trading contain material differences from authorized PEPSI and MANZANITA SOL products meant for sale in the United States.
8. SPE Trading's continued sale of Mexican product in the United States without Plaintiffs' consent constitutes: (a) trademark infringement in violation of section 32 of the Lanham Act, 15 U.S.C. § 1114; (b) unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (c) unfair competition in violation of California Business & Professions Code § 17200 et seq.; (d) trademark infringement and unfair competition in violation of California common law; (e) dilution in violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c); (f) dilution in violation of California Business & Professions Code § 14247; and (g) a breach of contract in violation of California common law.
9. SPE Trading, its subsidiaries, affiliates, related entities, agents, servants, employees, successors and assigns, and all others in active concert or participation with them, shall be permanently enjoined and restrained from the importation into, and the dealing, marketing, sale or distribution in the United States of soft drinks manufactured or bottled and meant for sale in Mexico, or any other foreign country, bearing the following PepsiCo trademarks: (a) PEPSI; (b) PEPSI-COLA; (c) a distinctive red, white and blue logo; (d) combinations of variations on this logo with PEPSI and PEPSI-COLA; (e) MANZANITA SOL; and (f) MANZANITA SOL and Design.
10. This Court shall retain jurisdiction over this action for purposes of construing and ensuring compliance with this Stipulation For Entry of Final Judgment and the Court's Order thereon.
11. The suit against the Doe defendants is dismissed without prejudice.
12. Each party shall bear its own costs.
Respectfully submitted, KAWAHITO & SHRAGA LLP David R. Shraga (No. 229098) 11845 W. Olympic Blvd., Suite 665 Los Angeles, CA 90064 Telephone: (310) 746-5301 Facsimile: (310) 593-2520 E-mail: firstname.lastname@example.org PATTISHALL MCAULIFFE NEWBURY HILLIARD & GERALDSON LLP Jonathan S. Jennings (Pro Hac Vice) Phillip Barengolts (Pro Hac Vice) Daniel I. Hwang (Pro Hac Vice) 311 South Wacker Drive, Suite 5000 Chicago, IL 60606 Telephone: (312) 554-8000 Facsimile: (312) 554-8015 ATTORNEYS FOR PLAINTIFFS PepsiCo, Inc. and The Concentrate Manufacturing Company of Ireland
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