IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
February 4, 2011
ANDREW FREEMAN, FREEMAN AUTOMOTIVE UK LIMITED AND EBC BRAKES USA, INC., PLAINTIFFS,
TODD HARDING, KIM HARDING,
WINNING PERFORMANCE PRODUCTS,
INC., DBA DIPLOMAT PACKAGING COMPANY,
HAWK CORPORATION DBA
WELLMAN PRODUCTS GROUP AND HAWK PERFORMANCE,
AND WELLMAN PRODUCTS GROUP, INC.
AND DOES 1-10, INCLUSIVE DEFENDANTS.
The opinion of the court was delivered by: Dolly M. GEEUnited States District Judge
CONSENT DECREE AND FINAL ORDER 53 RECITALS
The Plaintiffs ("Freeman Parties") are in the business of manufacturing, designing and selling aftermarket / replacement brake and clutch parts for motor vehicles, including motorcycles and ATVs.
Defendant Wellman Products Group is in the business of manufacturing, designing and selling aftermarket / replacement brake and clutch parts for motorcycles and defendant Hawk Corporation is the parent of Wellman Products Group. Together, they are referred to as "Wellman."
Defendants Todd Harding, Kim Harding and Winning Performance Products, Inc. dba Diplomat Packaging Company (the "Hardings") have participated at various times in representation and marketing for the Freeman Parties and for Wellman with respect to sales of aftermarket / replacement brake and clutch parts for motor vehicles.
A dispute has arisen among the Freeman Parties, the Hardings and Wellman that has lead the Freeman Parties to file a Complaint and an Amended Complaint for Trademark Infringement; False Advertising; Unfair Competition; Trademark Dilution; Cybersquatting and Conversion (the "Complaint"), thereby initiating this Civil Case No. CV 10-9189, and a Motion for Preliminary Injunction (the "Motion").
Wellman and the Hardings timely denied all material allegations in, and raised certain affirmative defenses to, the Complaint and Motion, and continue to deny any liability to the Freeman Parties.
It is hereby ORDERED, ADJUDGED AND DECREED: 1. This Court has jurisdiction over the parties and the subject matter of this action.
2. Upon the entry of this Order, the Freeman Parties shall dismiss this lawsuit against Wellman and the Hardings with prejudice. The Court, however, shall retain jurisdiction over this action for the purpose of enforcing the terms of this Consent Decree and Final Order.
3. Wellman and the Hardings shall not use in commerce any product identifiers or numbering systems on or in connection with brake and/or clutch parts for motor vehicles, including motorcycles and ATVs, that employ either the "FA" prefix or any numerical suffix already used by the Freeman Parties for such parts.
4. Nothing contained in this Consent Decree and Final Order shall prohibit either Wellman or the Hardings from referencing the Freeman Parties' products by referencing the Freeman Parties' current or future products and product identifiers for purposes of comparative advertising or cross-referencing in any catalogs, advertisements, promotions, displays, webpages, video, social media, or any other media known today or developed in the future, or any use that may qualify as a "fair use" or a "nominative fair use" or any other legal use that does not violate the immediately preceding paragraph; provided that all such uses (whether "fair uses", "nominative fair uses" or otherwise) of the Freeman Parties' product identifiers, part numbers or product numbering systems by Wellman and / or the Hardings shall fairly identify the Freeman Parties as the source of any / all products distinguished by Freeman Parties' product identifiers, part numbers or product numbering systems.
5. The Hardings shall refrain from advertising, selling or purporting to sell (a) any Freeman Parties products, and (b) any products specifically manufactured by or for the Freeman Parties.
6. The foregoing notwithstanding, Wellman and the Hardings may dispose of and replace their existing marketing media as set forth in the Parties' Confidential Settlement Agreement.
IT IS SO ORDERED.
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