UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
April 15, 2011
AMERIDERM, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
BIO JOUVANCE, INC., A CALIFORNIA CORPORATION, MEI BEAUTY PRODUCTS, INC., A CALIFORNIA CORPORATION, THOMAS CHANG, AN INDIVIDUAL, MEI YIN CHANG, AN INDIVIDUAL, AND DOES 1 THROUGH 10, INCLUSIVE,
The opinion of the court was delivered by: George H. King United States District Judge
FINAL ORDER ON CONSENT FOR PERMANENT INJUNCTION AND MONETARY RELIEF
NOTE: CHANGES MADE BY THE COURT
Plaintiff Ameriderm, Inc. (hereafter "Ameriderm") and Defendants Mei Beauty Products, Inc., Thomas Chang, and Mei Yin Chang, (collectively "Defendants") hereby stipulate and consent to the following:
WHEREAS, Ameriderm has filed a Complaint against Defendants in the Central District of the United States District Court, which has been assigned Case No. 11-01754 GHK (FMOx) (hereafter "Civil Action 11-01754"), alleging causes of action for Trade Dress Infringement and Unfair Competition Under California Business & Professionals Code § 17200;
WHEREAS, Defendants were served with the Complaint; and WHEREAS, Ameriderm and Defendants are desirous of resolving all of the issues and claims raised in Civil Action 11-01754 on the terms and conditions set forth in this Agreement:
NOW THEREFORE IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
1. This Court has jurisdiction over the subject matter of the Civil Action and personal jurisdiction over each of the Defendants.
2. Within three (3) business days of the mutual execution of this Agreement, Defendants shall deliver to the office of counsel for Ameriderm, a cashier's check for $8,000.00 payable to Ameriderm, Inc. as payment for settlement of this case.
3. Defendants agree and acknowledge Ameriderm's sole right to the design for products alleged in the complaint and provided for in United States Trademark Application No. 85187706 (the "Ameriderm Design"). Defendants agree that they shall not, in any future action (civil, U.S.P.T.O., Trademark Trial and Appeal Board, or otherwise) challenge such design on the basis of genericness, prior use, nondistinctiveness, functionality, or other such defenses to infringement.
4. Defendants agree and acknowledge that they shall not in the future sell any microdermabrasion device that is confusingly similar in design to the Ameriderm Design. Without limiting Ameriderm's rights, the party's acknowledge and agree that a microdermabrasion device that is sold with any of the following three (3) design descriptions infringes upon the Ameriderm design:
(a) a microdermabrasion device wherein on the approximate center front of the device, the device features a round gauge and below and to each side of the gauge are circular buttons/controls/indicators/knobs; below and to the outer side of each button are two buttons/controls/indicators/knobs; the gauge and two sets of buttons/controls/indicators/knobs are configured in a triangular shape; Or (b) a microdermabrasion device wherein on the approximate center front of the device features a round gauge and below the gauge are two ports. Or (c) The right side of the device features two clear cylindrical tanks and the right side of the front plate of the device is cut-away in a arch shape that exposes the tanks.
5. Within ten (10) business days of the execution of this agreement, Defendants shall deliver to Ameriderm all microdermabrasion devices in the possession, custody, or control that are confusingly similar in design to the Ameriderm Design. Within ten (10) business days of the execution of this agreement, Defendants shall deliver to Ameriderm (or its counsel) all molds or tools used to build devices that infringe upon the Ameriderm Design.
6. Should Defendants violate any provision of this Order, including the requirement for monetary payment, Ameriderm may be entitled, in addition to all relief under 18 U.S.C. § 401, et seq., a contempt of a Court Order, including costs and reasonable attorneys' fees.
7. To the extent Defendants, or any one of them, sell any device that infringes upon the Ameriderm Design, that Defendant shall be required to pay liquidated damages of $5,000 per infringing device sold.
8. The remedies set forth above are in addition to any other contempt remedies to be determined by the Court, which may include additional fines and seizure of property.
9. This Order is in full settlement of all claims asserted in the Civil Action, all relief and remedies requested in the Civil Act, and all defenses and counterclaims that were or could have been asserted by the Defendants in the Civil Action and all relief and remedies requested or that could have been requested by Defendants, and shall constitute a final adjudication on the merits as to any such claims, counterclaims and defenses.
10. The parties to this Order waive all right to appeal from entry of this Order.
11. The Defendants each acknowledge that they have obtained advice of counsel with respect to this Order. The Defendants each further acknowledge that their decision to enter into this Agreement was not influenced by any promises, representations, or statements made by Plaintiff or anyone acting on its behalf other than those set forth in this Order.
12. This Court shall retain jurisdiction over this matter and the parties to it to enforce the terms of the Order and for purposes of making any other orders necessary to implement the terms of this Order and to punish or award damages for violation thereof.
13. Defendant Bio Jouvance shall not be bound by the terms of this Order. 14. By their signatures and acknowledgments below, the parties understand and agree to be bound by the terms of this Order.
15. This Order is a final Order.
[PARTIES SIGNATURE PAGE FOLLOWS]
STIPULATED AND AGREED:
Dated: ______________ AMERIDERM, INC., a California Corporation
By: Frank Chang, President
Dated: ______________ MEI BEAUTY PRODUCTS, INC., a California
Dated: ______________ MEI YIN CHANG, an individual
By: Mei Ying Chang
Dated: ______________ THOMAS CHANG, an individual
By: Thomas Chang
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