UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 15, 2011
RICHARD CANTRELL, AN INDIVIDUAL; PATRICIA CANTRELL, AN INDIVIDUAL, PLAINTIFFS,
ACTIVE USA, INC. A CALIFORNIA CORPORATION; AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.
Robert A. Johnson, SBN 155938 Sandra V. Biggs, SBN 175930 ROBERT JOHNSON LAW CORPORATION 34197 Pacific Coast Highway, Suite 100 Dana Point, California 92629 Telephone: (949) 498-4999 Facsimile: (949) 498-4998 Email: firstname.lastname@example.org Attorneys for Plaintiffs Richard Cantrell and Patricia Cantrell
[PROPOSED] ORDER ON STIPULATED CONSENT JUDGMENT FOR PERMANENT INJUNCTION
Assigned to: Judge Gary A. Feess Assigned to: Magistrate Paul L. Abrams
Complaint filed: January 10, 2011
WHEREAS, on January 5, 2011, Plaintiffs Richard Cantrell and Patricia Cantrell (collectively the "Cantrells" or "Plaintiffs") filed a Complaint against Defendant Active USA, Inc. ("Active" or "Defendant") in this action (the "Action");
WHEREAS, Plaintiffs allege that they have trademark and trade dress rights in "a woven rectangular cloth label sewn flat and positioned vertically over the center seam on the back of a pair of shorts or pants at the bottom edge of a waist band" as described and depicted in United States Patent and Trademark Office, Supplemental Register Trademark No. 2,938,965, a copy of which is attached hereto as Exhibit A;
WHEREAS, Plaintiffs contend that Defendant infringed on and diluted Plaintiffs' trademark and trade dress rights by manufacturing, marketing, displaying, distributing and/or selling the following:
(1) pants and shorts bearing a rectangular cloth label sewn vertically over the rear center seam bearing the word "Active" as depicted on Exhibit B attached hereto (the "Active Rectangular Label"); and
(2) pants and shorts bearing rectangular cloth labels positioned vertically on the rear center seam which labels loop under the bottom of roll down waist bands of the yoga pants and shorts bearing the words "Active Basic" and the letter "A" as depicted on Exhibits C and D attached hereto (the "Active Looped Label");
WHEREAS, the Settlement Agreement states in section 2.5 that Active "acknowledges and recognizes the validity of the Cantrells' trademark and/or trade dress rights to a rectangular shaped label, vertically positioned over the rear center seam of pants and shorts at the bottom of the waist band, as depicted in Supplemental Registration No. 2,938,965";
WHEREAS, the Settlement Agreement states in section 3.2 that "The Parties agree that a breach of this Agreement by one Party will cause irreparable harm to the other Party, and further agree that such breach shall be restrained by way of temporary restraining order, preliminary injunction and/or permanent injunction without the necessity of posting a bond";
WHEREAS, the Settlement Agreement states in section 2.4 that "Active may sell off all [existing inventory of] pants and shorts that bear the Active Rectangular Label and the Active Looped Label" until December 15, 2011 and that "After December 15, 2011, the Active Rectangular Label, the Active Looped Label and any other rectangular label positioned vertically on or near the rear center seam must be affirmatively removed from any and all remaining pants and shorts within Active's ... possession, custody or control."
IT IS HEREBY ORDERED THAT a Consent Judgment for Permanent Injunction against Active is entered as follows:
1. The Court's Judgment of Injunction shall be applicable to and govern all manufacturing, marketing, displaying, distributing and selling of pants and shorts by Active. Any and all of Active's officers, directors, shareholders (including but not limited to Don Rhee and Bok Rhee), employees, servants, agents and others described in Federal Rule of Civil Procedure 65 will be bound by the Court's Judgment of Injunction. The Court's Judgment of Injunction shall apply from the date of entry of the Order and continuing in perpetuity into the future or otherwise terminated by the Court.
ORDER FOR PERMANENT INJUNCTION
2. After the expiration of the sell off period for existing inventory on December 15, 2011 described above, Active is permanently enjoined and restrained from manufacturing, marketing, displaying, distributing and/or selling the following pants and shorts with the following labels:
(a) The Active Rectangular Label vertically sewn over the rear center seam of pants or shorts (see Exhibit B attached hereto);
(b) The Active Looped Label vertically looped over the rear center seam of pants or shorts (see Exhibits C and D attached hereto); and
(c) Any other rectangular woven cloth label, vertically positioned on or near the rear center seam of pants or shorts, whether it bears an Active trademark name, another name or no name at all, and whether sewn directly on the rear center seam or looped over the rear center seam.
3. The Court's Judgment shall be effective immediately upon execution by the Court and service of the Judgment for Permanent Injunction by Plaintiffs on counsel for Defendant. The Court retains jurisdiction over this matter to enforce the terms of this Order.
United States District Court Judge
PROOF OF SERVICE
I hereby certify that I am over the age of 18 years, not a party to the action, and am employed by Robert Johnson Law Corporation, 34197 Pacific Coast Highway, Suite 100, Dana Point, California 92629. On the 7th day of November 2011, I served a copy of the foregoing [PROPOSED ] ORDER ON STIPULATED CONSENT JUDGMENT FOR PERMANENT INJUNCTION via the means described below, on the following individuals and entities:
(By United States Mail): by placing for collection and deposit in the United States mail true copies of the documents at San Clemente, California, in a sealed envelope with postage thereon fully prepaid, addressed to the addresses above.
___X___ (By Electronic Mail): by sending the above document via e-mail to the Clerk of the Court using the ECF system which will send notification of such filing to the parties listed above.
I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.
Executed on November 7, 2011 at Dana Point, California.
/s/ Sandra V. Biggs
Sandra V. Biggs
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