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Sweet People Apparel, Inc. D/B/A Miss Me, A California Corporation and v. Zipper Clothing

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


June 21, 2012

SWEET PEOPLE APPAREL, INC. D/B/A MISS ME, A CALIFORNIA CORPORATION AND DEODAR BRANDS, LLC D/B/A MEK DENIM, A CALIFORNIA LIMITED LIABILITY COMPANY. PLAINTIFFS,
v.
ZIPPER CLOTHING, A BUSINESS ENTITY OF UNKNOWN STATUS, ZIPPER AND DENIM, A BUSINESS ENTITY OF UNKNOWN STATUS, INY TRADING, INC., A CALIFORNIA CORPORATION, AND JOHN DOES 1-10. DEFENDANT.

The opinion of the court was delivered by: Hon. Otis D. Wright, II

JOHN C. ULIN (State Bar No. 165524) John.Ulin@aporter.com JAMES S. BLACKBURN (State Bar No. 169134) James.Blackburn@aporter.com ERIC D. MASON (State Bar No. 259233) Eric.Mason@aporter.com ARNOLD & PORTER LLP 777 South Figueroa Street, 44th Floor Los Angeles, California 90017-5844 Telephone: (213) 243-4000 Facsimile: (213) 243-4199 Attorneys for Plaintiffs

JS-6

JUDGMENT

Hrg. Date: N/A Hrg. Time: N/A Courtroom 11: 11 - Spring Street Judge: Otis D. Wright, II

JUDGMENT AND ORDER

WHEREAS the Plaintiffs in this action are Sweet People Apparel, Inc. d/b/a MISS ME ("Sweet People") and Deodar Brands, LLC d/b/a MEK Denim ("MEK Denim"); and

WHEREAS the Defendants in this action are Zipper Clothing, Zipper and Denim (collectively the "Zipper Defendants"), INY Trading, Inc. (the Zipper Defendants and INY Trading, Inc. being collectively referred to as the "Defaulting Defendants"), and John Does 1-10 (the "Doe Defendants"); and

WHEREAS Sweet People is the owner of U.S. copyright registrations for certain designs it uses on and in connection with its MISS ME line of jeanswear products, including a Wing Design (U.S. Copyright Registration No. VA 1-733-502 and Supplementary Registration No. 1-432-644); Fleur de Lis Design (U.S. Copyright Registration No. VA 1-418-846); JP5117 Cross Wing Design (U.S. Copyright Registration No. VA 1-740-392); JP5335 Ivy Cross Design (U.S. Copyright Registration No. VA 1-786-494); and the Wide M Design (U.S. Copyright Registration No. VA 1-733-503) (such copyrighted designs being collectively referred to as the "Sweet People Copyrighted Designs"), copies of the aforesaid registration certificates, and photographs of representative examples of Sweet People jeanswear products bearing the Sweet People Copyrighted Designs, being attached hereto as Exhibit A and incorporated herein by reference; and

WHEREAS Sweet People is the owner of certain registered and unregistered trademarks, including for its FABRIC CUT OUT DESIGN Trademark (U.S. Trademark Registration No. 4,065,486); WIDE M DESIGN Trademark (U.S. Trademark Reg. No. 4,039,9380); and WING DESIGN Trademark (such trademarked designs being collectively referred to as the "Sweet People Trademarked Designs"), copies of the aforesaid registration certificates, and photographs of representative examples of Sweet People jeanswear products bearing the Sweet People Trademarked Designs, being attached hereto as Exhibit B and incorporated herein by reference; and

WHEREAS Mek Denim is the owner of its M DESIGN Trademark (U.S. Trademark Registration No. 3,613,153), a copy of the registration certificate, and a photograph of a representative example of a MEK Denim jeanswear product bearing the M DESIGN Trademark, being attached hereto as Exhibit C and incorporated herein by reference; and

WHEREAS, on March 29, 2012, Plaintiffs filed a Complaint against the Defaulting Defendants alleging that the Defaulting Defendants created, designed, purchased, imported, distributed, offered for sale and/or sold certain jeanswear products bearing designs that infringe their rights in and to the Sweet People Copyrighted Designs, the Sweet People Trademarked Designs and MEK Denim's M DESIGN Trademark (Dkt. No. 1); and

WHEREAS the Defaulting Defendants were duly served with the Complaint on March 30, 2012 (Dkt. Nos. 14-17); and

WHEREAS all Defaulting Defendants failed to plead or otherwise defend, and the legal time for pleading or otherwise defending having expired, a Certificate of Default was executed by the Clerk on April 25, 2012 (Dkt. No. 21); and

WHEREAS on May 7, 2012, Plaintiffs filed a Motion for Default Judgment against the Defaulting Defendants (Dkt. Nos. 26-30); and

WHEREAS this Court granted Default Judgment against Defendants on May 31, 2012, finding them liable for copyright infringement in violation of 17 U.S.C. § 501 and trademark counterfeiting and trademark infringement in violation of 15 U.S.C. § 1114 (Dkt. No. 36); and

WHEREAS on June 11, 2012, Plaintiffs filed a Request For Seizure and Impoundment Order against the Zipper Defendants (Dkt. Nos. 37-40); and

WHEREAS an Order Granting Plaintiffs' Request for Seizure and Impoundment against the Zipper Defendants was duly entered by the Court on June 13, 2012 (Dkt. No. 42); and

WHEREAS in accordance with the Court's May 31, 2012 Order granting Default Judgment against the Defaulting Defendants, and the Court's June 13, 2012 Order Granting Plaintiffs' Request for Seizure and Impoundment against the Zipper Defendants, Plaintiffs Sweet People and MEK Denim are entitled to the issuance of a Judgment, as follows:

IT IS HEREBY ORDERED, ADJUDGED, and DECREED that:

1. Default Judgment is entered against the Defaulting Defendants pursuant to the prayer of the Complaint on each of Plaintiffs' claims as set forth in the Complaint, including their claims for (i) willful copyright infringement of the Sweet People Copyrighted Designs in violation of 17 U.S.C. § 501; (ii) willful trademark infringement and counterfeiting of Sweet People's FABRIC CUT OUT DESIGN and MEK Denim's M DESIGN trademarks in violation of 15 U.S.C. § 1114; (iii) willful trademark infringement of Sweet People's WIDE M and WING DESIGN trademarks in violation of 15 U.S.C. §§ 1114 and 1125; (iv) willful common law trademark infringement and unfair competition; and (v) willful unfair competition in violation of California Bus. & Prof. Code §§ 17200.

2. The Defaulting Defendants created, designed, purchased, imported, distributed, offered for sale and/or sold certain jeanswear products bearing designs that willfully infringed the Sweet People Copyrighted Designs, the Sweet People Trademarked Designs and MEK Denim's M DESIGN Trademark, photographs of such infringing designs being attached hereto as Exhibit D (collectively, the "Infringing Products"); and

3. The Defaulting Defendants, their respective subsidiaries, affiliates, divisions, officers, directors, principals, servants, employees, successors and assigns, and all those in active concert or participation with them, or under their direct or indirect control, including manufacturers, suppliers, distributors and retailers of any Infringing Products, or any other products bearing designs substantially similar in appearance to the Sweet People Copyrighted Designs, or confusingly similar in appearance to the Sweet People Trademarked Designs and/or MEK Denim's M DESIGN Trademark (collectively, the "Infringing Designs"), who receive notice of this Order, are hereby enjoined, restrained and prohibited from:

(a) Copying, imitating, or making any unauthorized use of the Sweet People Copyrighted Designs, including any use in violation of Sweet People's exclusive rights in the Sweet People Copyrighted Designs as set forth in 17 U.S.C. § 106.

(b) Copying, imitating, or making any unauthorized use of the Sweet People Trademarked Designs and/or Sweet People's M DESIGN Trademark.

(c) Manufacturing, importing, distributing, marketing, advertising, offering for sale and/or selling any product bearing an Infringing Design, including, without limitation, any of the Infringing Products.

4. Within ten (10) business days of the date of this Order, the Defaulting Defendants shall serve upon Plaintiffs' counsel and file with the Court a report of compliance identifying the steps it has taken to comply with the terms of Paragraph 3 of this Order.

5. The Defaulting Defendants are liable to Plaintiff Sweet People in the amount of $750,000.00 in statutory damages as a result of the Defaulting Defendants' willful copyright infringement of the Sweet People Copyrighted Designs pursuant to

17 U.S.C. § 504(c); and 6. The Defaulting Defendants are liable to Plaintiff Sweet People in the amount of $150,000.00 in statutory damages as a result of the Defaulting Defendants' willful trademark counterfeiting of Sweet People's FABRIC CUT OUT DESIGN Trademark pursuant to 15 U.S.C. § 1117(c); and

7. The Defaulting Defendants are liable to Plaintiff MEK Denim in the amount of $150,000.00 in statutory damages as a result of the Defaulting Defendants' willful trademark counterfeiting of the MEK Denim M DESIGN Trademark pursuant to 15 U.S.C. § 1117(c); and

8. The Defaulting Defendants are liable to Plaintiffs in the amount of $24,600.00 for Plaintiffs' attorneys' fees and $678.92 for Plaintiffs' costs; and

9. The Defaulting Defendants are liable to Plaintiffs for prejudgment interest on the aggregate sum of statutory damages, attorney's fees, and costs awarded. In accordance with 28 U.S.C. § 1961, prejudgment interest shall be calculated at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment; and

10. Pursuant to the Lanham Act, 15 U.S.C. § 1116, and the Copyright Act, 17 U.S.C. § 503, and the equitable powers of this Court, any garments in the possession, custody, and/or control of the Defendants bearing one of the Sweet People Copyrighted Designs, the Sweet People Trademarked Designs, or MEK's M Design Trademark, as well as any records pertaining to the sale, manufacture, or receipt of such infringing jeanswear, shall be seized and/or impounded in accordance with the Court's June 13, 2012 Order Granting Plaintiffs' Request for Seizure and Impoundment, a copy of which is attached hereto as Exhibit E; and

11. Plaintiffs' claims against the Doe Defendants are dismissed without prejudice; and

12. The Court retains jurisdiction of this action for the purpose of enforcing the provisions of this Judgment and Order by way of contempt motion or otherwise. IT IS SO ORDERED.

Otis D. Wright, II UNITED STATES DISTRICT JUDGE

20120621

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