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International Oddities, Inc., A California Corporation v. Domestic Oddities Wholesale Distribution LLC

August 9, 2012

INTERNATIONAL ODDITIES, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
DOMESTIC ODDITIES WHOLESALE DISTRIBUTION LLC, A NEVADA LIMITED LIABILITY COMPANY, ERIC C. FONTENELLE, AN INDIVIDUAL, RICK CHERVENAK, AN INDIVIDUAL, BRETT M. MCSPADDEN, AN INDIVIDUAL, AND DEREK L. DURBIN, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: The Honorable Christina A. Snyder,United States District Judge

PERMANENT INJUNCTION WITH RESPECT TO DEFENDANT DEREK L. DURBIN, AN INDIVIDUAL

WHEREAS, plaintiff International Oddities, Inc. ("IO" or "Plaintiff") has filed its complaint in the above-entitled action against Defendant DEREK L. DURBIN, an individual ("Durbin"), among the various other above-named defendants (collectively "Defendants") for trademark infringement, unfair competition, false designation of origin, dilution, and cyberpiracy, among other related causes, concerning IO's federally registered trademarks INTERNATIONAL ODDITIES® and BLACK WIDOW®;

WHEREAS, Defendant Domestic Oddities Wholesale Distribution LLC, a Nevada limited liability company ("Domestic Oddities") is in the business of marketing and selling various products over the Internet and through distributors and retail outlets, including, without limitation, "herbal incense," sometimes referred to generically as "potpourri," in part, through websites owned, operated, or hosted by one or more of the Defendants and/or their affiliates;

WHEREAS, in exchange for IO's dismissal of the complaint in this Action, without prejudice, as to Durbin, only, Durbin and IO have stipulated to entry of a permanent injunction as to Durbin, on the following terms and conditions;

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

1. This Court has jurisdiction of the subject matter of this litigation and over Mr. Durbin's person.

2. Mr. Durbin waives the right to appeal from entry of this Permanent Injunction With Respect to Defendant Derek L. Durbin, an Individual ("Permanent Injunction" or "Order").

3. Plaintiff is a corporation organized under the laws of the State of California, having an address at 927 Deep Valley Drive, No. 163, Rolling Hills, CA 90274.

4. Defendant Derek L. Durbin is an individual residing in Slidell, Louisiana.

5. IO's United States Trademark Registration No. 3,001,848 for the mark INTERNATIONAL ODDITIES in International Class 034 for "non-tobacco smoking products, namely, herbal tobacco substitute, not for medical use," ("Plaintiff's INTERNATIONAL ODDITIES Registration") is valid and subsisting and is owned by IO. This registration has since been granted incontestable status by the USPTO.

6. For approximately 17 years, Plaintiff has continuously used its INTERNATIONAL ODDITIES trade name and trademark alone and in combination with other words and symbols for its herbal smoking and dietary supplement products. International Oddities' goods have been sold and marketed throughout the United States under the INTERNATIONAL ODDITIES mark. By virtue of such use, Plaintiff has also acquired common law rights in the trademark and trade name INTERNATIONAL ODDITIES. Plaintiff's INTERNATIONAL ODDITIES Registration and its common law rights in the INTERNATIONAL ODDITIES mark are collectively referred to herein as "Plaintiff's INTERNATIONAL ODDITIES mark."

7. IO's United States Trademark Registration No. 3,168,188 for the mark BLACK WIDOW in International Class 034, relating to "non-tobacco smoking products, namely, herbal tobacco substitute, not for medical use," ("Plaintiff's BLACK WIDOW Registration") is valid and subsisting and is owned by IO. This registration has since been granted incontestable status by the USPTO. Plaintiff has also acquired common law rights in the mark/name BLACK WIDOW by virtue of its extensive use and advertising of goods under this mark/name. Plaintiff's BLACK WIDOW Registration and its common law rights in the BLACK WIDOW mark/name are collectively referred to herein as "Plaintiff's BLACK WIDOW mark."

8. Plaintiff's BLACK WIDOW mark and Plaintiff's INTERNATIONAL ODDITIES mark are collectively referred to herein as the "IO TRADEMARKS."

9. As a result of Plaintiff's extensive use and advertising, the IO TRADEMARKS have become well known to the industry and the purchasing public to designate herbal smoking-related ...


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