UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
September 22, 2012
SWEET PEOPLE APPAREL, INC. D/B/A MISS ME, A CALIFORNIA CORPORATION AND RCRV, INC. D/B/A ROCK REVIVAL, A CALIFORNIA CORPORATION. PLAINTIFFS,
LA IDOL FASHION, INC., A CALIFORNIA CORPORATION, I-YUN YIH A/K/A NANCY YIH, AN INDIVIDUAL, AND JOHN DOES 1-10, INCLUSIVE DEFENDANTS.
The opinion of the court was delivered by: Hon. S. James Otero
JOHN C. ULIN (State Bar No. 165524) John.Ulin@aporter.com JAMES S. BLACKBURN (State Bar No. 169134) James.Blackburn@aporter.com LOUIS S. EDERER (Pro Hac Vice) Louis.Ederer@aporter.com ALAN C. VERONICK (Pro Hac Vice) Alan.Veronick@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 SWEET PEOPLE APPAREL, INC. d/b/a MISS ME and RCRV, Inc. d/b/a ROCK REVIVAL
[PROPOSED] PERMANENT INJUNCTION ORDER AND JUDGMENT ON CONSENT
WHEREAS, the Plaintiffs in this action are Sweet People Apparel, Inc. d/b/a Miss Me ("Sweet People"), and RCRV, Inc. d/b/a Rock Revival ("RCRV"); and
WHEREAS, the Defendants in this action are LA Idol Fashion, Inc. ("LA Idol"), I-Yun Yih a/k/a Nancy Yih ("Nancy Yih") and John Does 1-10; 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 Reverse Western Paisley JP5123 Design (U.S. Copyright Registration No. VA 1-740-404); Wide M Pocket Stitch Design (U.S. Copyright Registration No. VA 1-733-503); and Split Fleur De Lis Design (U.S. Copyright Registration No. VA 1-807-380) (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 a U.S. trademark registration for its WIDE M DESIGN Trademark (U.S. Trademark Registration No. 4,039,938), a copy of the registration certificate, and a photograph of a representative example of a Sweet People jeanswear product bearing the WIDE M DESIGN Trademark, being attached hereto as Exhibit B and incorporated herein by reference; and
WHEREAS, RCRV is the owner of a U.S. trademark application for its ARROW STITCH DESIGN Trademark (U.S. Trademark Application No. 85/330,876), a copy of a photograph of a representative example of an RCRV jeanswear product bearing the ARROW STITCH DESIGN Trademark, being attached hereto as Exhibit C and incorporated herein by reference; and
WHEREAS, on July 26, 2012, Plaintiffs Sweet People and RCRV filed a Complaint (Dkt. No. 1) alleging that LA Idol 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, Sweet People's
FABRIC CUT OUT DESIGN Trademark and RCRV's INVERTED FLEUR DE LIS DESIGN Trademark, including the jeanswear products depicted in the attached Exhibits D, E and F (collectively, the "Infringing Products"); and
WHEREAS, the Court has jurisdiction over the subject matter of this action and over Plaintiffs and Defendants, and venue in this action being proper in this judicial district; and
WHEREAS, Plaintiffs and Defendants have consented to the entry of this Permanent Injunction Order and Judgment on Consent in full and final resolution of the claims asserted between and among them in the Civil Action, as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT, LA Idol, its respective subsidiaries, affiliates, divisions, officers, directors, principals, servants, employees, successors and assigns, and its President, Nancy Yih, 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, who receive notice of this Order, are hereby enjoined, restrained and prohibited from:
1. Manufacturing, designing, creating, copying, imitating, importing, exporting, distributing, supplying, marketing, advertising, promoting, offering for sale or selling any product bearing a design that is substantially similar in overall appearance to, or making any other unauthorized use of, any of the Sweet People Copyrighted Designs, so as to constitute an infringement of such design in violation of the U.S. Copyright Act, as amended, 17 U.S.C. § 101 et seq.;.
2. Manufacturing, designing, creating, copying, imitating, importing, exporting, distributing, supplying, marketing, advertising, promoting, offering for sale or selling any product bearing a design that is confusingly similar to, or making any other unauthorized use of, Sweet People's WIDE M DESIGN Trademark and/or RCRV's ARROW STITCH DESIGN Trademark, so as to constitute an infringement of such design in violation of the Lanham Act, as amended, 15 U.S.C. § 1051 et seq..
3. Manufacturing, designing, creating, copying, imitating, importing, exporting, distributing, supplying, marketing, advertising, promoting, offering for sale and/or selling the Infringing Products, or any other product bearing a design that violates Paragraphs 1-2 of this Order and Judgment.
4. Within ten (10) days following entry of this Order and Judgment, LA Idol shall provide a copy of this Order and Judgment to its manufacturers, suppliers, distributors and retail and wholesale customers for any of the Infringing Products.
5. Plaintiffs and Defendants have acknowledged that, due to LA Idol's record keeping practices, the monetary relief to which Plaintiffs would be entitled as a result of any violation of any of the terms in Paragraphs 1-3 of this Order and Judgment may not be readily ascertainable. Accordingly, in the event of a violation by Defendants of Paragraphs 1-3 of this Order and Judgment, in addition to any equitable relief to which Plaintiffs may be entitled, the Parties agree that Defendants shall be liable to Plaintiffs, at Plaintiffs sole option, as follows:
(a) Plaintiffs' actual damages as provided for in 17 U.S.C. § 504(b) of the U.S. Copyright Act and 15 U.S.C. § 1117(a) of the Lanham Act and/or a disgorgement of LA Idol's profits as provided for in 17 U.S.C. § 504(b) of the U.S. Copyright Act and 15 U.S.C. § 1117(a) of the Lanham Act; or
(b) The liquidated sum of one-hundred and fifty thousand ($150,000) per infringement in the case of Paragraphs 1 or 2, and per violation of Paragraph 3, as the Parties have agreed that such sum is reasonably proportionate to Plaintiffs' foreseeable losses for any violation of Paragraphs 1-3 of this Order and Judgment.
6. Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, Plaintiffs hereby dismiss with prejudice the claims they have asserted against Defendants John Does 1-10.
7. The Court retains jurisdiction of this action for the purpose of enforcing the provisions of this Order and Judgment, and the Parties' Settlement Agreement, by way of contempt motion or otherwise.
8. The Parties waive any right to appeal this Order and Judgment.
9. The Parties agree that each Party shall bear its own costs and fees associated with this Order and Judgment and the Civil Action.
IT IS SO ORDERED.
S. James Otero UNITED STATES DISTRICT JUDGE
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