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Partners For Health and Home v. Seung Wee Yang Individually and Doing Business As Pearl Life

December 14, 2011

PARTNERS FOR HEALTH AND HOME, L.P., A CALIFORNIA LIMITED PARTNERSHIP PLAINTIFF,
v.
SEUNG WEE YANG INDIVIDUALLY AND DOING BUSINESS AS PEARL LIFE COOKWARE, INC. AND PLC USA, INC.; SOO JUNG KIM INDIVIDUALLY AND DOING BUSINESS AS PLC USA, INC. S T P AMERICA, INC., A CALIFORNIA CORPORATION; DONG YANG SCIENCE, INC., A CALIFORNIA CORPORATION; AND DOES 1-10, INCLUSIVE DEFENDANTS.



The opinion of the court was delivered by: Hon. Ralph Zarefsky Magistrate Judge, United States District Court

I. FINDINGS OF FACT

[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING PLAINTIFF'S MOTION FOR FURTHER PRELIMINARY INJUNCTION

Date: n/a Time: n/a Courtroom: 540 Judge: Hon. Ralph Zarefksy

A. UNDISPUTED FACTS AS PREVIOUSLY DETERMINED BY THE COURT The Court reiterates here the facts as set forth in its previous Undisputed Facts and Conclusions of Law [113] dated October 28, 2011.

1. In the 1980's in New York, Domenico Santorelli, who is not a party to these proceedings, began selling stainless steel cookware under the brand name Perma-Life®.

2. In 1986, Ki Won ("Jean") Shim entered into a 50-50 business partnership with Mr. Partners for Health and Home, L.P. v. Seung Wee Yang Santorelli whereby they would jointly own and operate the Perma-Life cookware business, including specifically the Perma-Life trademark.

3. In 2002, Ms. Shim purchased from Domenico Santorelli the rights to the Perma-Life trademark and to U.S. Trademark Registration No. 2,029,777 ("the '777 Registration") for the goods of, inter alia, metal cookware, and the goodwill associated with that mark.

4. Since purchasing the rights to the Perma-Life trademark and associated goodwill of the business from Mr. Santorelli, together Ms. Shim and Plaintiff Partners for Health & Home, L.P. ("Partners"), of which Ms. Shim is the President, have continuously sold stainless steel cookware under the Perma-Life trademark.

5. In 2008, Plaintiff's prior trademark counsel, Paul Supnick, transferred his files for Jean Shim, including the trademark files, to Plaintiff's current counsel, Joel Voelzke.

6. In reviewing those incoming files, Mr. Voelzke noticed that Mr. Supnick had failed to renew the '777 registration and that the time period for filing a late renewal had expired. Mr. Voelzke filed a new trademark application to re-register the Perma-Life trademark.

7. The time period from the time that the PTO officially declared the '777 registration lapsed on June 6, 2008, until the day that attorney Voelzke filed the new application on June 7, 2008, was one day.

8. The application filed by attorney Voelzke registered as Registration No. 3,564,113 ("the '113 Registration") on January 20, 2009 for the mark Perma-Life.

9. The '113 Registration is a valid and subsisting federal trademark registration for the mark Perma-Life.

10. The period during which there was no federal trademark registration for Perma-Life owned in whole or in part by Plaintiff, its principal Jean Shim, or a predecessor company in which Jean Shim was part owner, was less than 8 months (from June 6, 2008 until January 20, 2009).

11. In 2009, Ms. Shim assigned both of the registrations, including the goodwill associated with the mark and the right to sue for past infringements, to Plaintiff Partners for Health and Home, L.P. ("Partners"), of which she is the President.

12. At no time from 1986 until the present did Ms. Shim or her companies ever stop selling Perma-Life cookware, whether through her partnership with Domenico Santorelli, through her company Perma-Life Cookware, or through her company Partners.

13. Defendant S T P America, Inc. ("STP") is 100% owned by Defendant Seung Wee ("Edward") Yang.

14. Defendant Seung Wee Yang made all of the managerial decisions for STP.

15. Defendant Seung Wee Yang made all of STP's marketing and advertising decisions.

16. For several years, Defendant Yang imported "health mattresses" and water purifiers from Korea.

17. From about October 2005 to about April 2007, Plaintiff purchased mattresses and water purifiers from Mr. Yang, and used its distribution network to sell ...


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