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Cytosport, Inc., A California Corporation v. Vital Pharmaceuticals

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION


September 28, 2012

CYTOSPORT, INC., A CALIFORNIA CORPORATION,
PLAINTIFF,
v.
VITAL PHARMACEUTICALS, INC., A FLORIDA CORPORATION, DEFENDANT.

The opinion of the court was delivered by: John A. Mendez U. S. District Court Judge

GIBSON, DUNN & CRUTCHER LLP KING PARRET & DROSTE LLP G. CHARLES NIERLICH, SBN 196611 ALAN J. DROSTE, SBN 105616 HOWARD S. HOGAN, pro hac vice 450 Newport Center Drive, Suite 500 JOSHUA A. JESSEN, SBN 222831 Newport Beach, CA 92660 555 Mission Street, Suite 3000 Telephone: 949.644.3484 San Francisco, CA 94105-2933 Facsimile: 949.644.3993 Telephone: 415.393.8200 adroste@kpdlex.com Facsimile: 415.393.8306 gnierlich@gibsondunn.com [Additional counsel on signature pages] hhogan@gibsondunn.com jjessen@gibsondunn.com Attorneys for Plaintiff Attorneys for Defendant CYTOSPORT, INC. VITAL PHARMACEUTICALS, INC.

AGREED STIPULATION AND ORDER OF DISMISSAL

This matter is before the Court on the joint application of plaintiff CytoSport, Inc. ("CytoSport") and Defendant Vital Pharmaceuticals, Inc. ("VPX") (collectively, "the Parties").

WHEREAS, Plaintiff commenced the above-captioned civil action on or about November 4, 2008 and filed a Third Amended Complaint on or about December 7, 2009;

WHEREAS, Defendant filed an answer and counterclaims against CytoSport that were deemed filed as of December 22, 2009;

WHEREAS, the Parties have entered into a confidential settlement agreement in which they have agreed to resolve the dispute giving rise to this action; and

WHEREAS, without admitting any factual or legal allegation, claim alleged, or defense asserted, the Parties have consented to the entry of this dismissal order pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure with prejudice.

Therefore, it is hereby ORDERED that: (a) All claims asserted by Plaintiff against Defendant and all counterclaims asserted by Defendant against Plaintiff are hereby dismissed with prejudice;

(b) The preliminary injunction entered by this Court on May 6, 2009 and affirmed by order of the United States Court of Appeals for the Ninth Circuit dated September 14, 2009 and filed October 13, 2009 is hereby converted into a permanent injunction and the terms of the injunction set forth therein shall remain permanently in effect pursuant to 15 U.S.C. § 1116 except that CytoSport is hereby relieved of its obligation to post a security under Rule 65(c) of the Federal Rules of Civil Procedure. The Surety Bond in the amount of $500,000.00 received by attorney-in-fact Sheryl Smith/American Contractors Indemnity Company and recorded as Docket No. 78 is accordingly hereby discharged and exonerated.

(c) As set forth in the confidential settlement agreement between the Parties, VPX surrenders and abandons all statutory and common law rights in the marks "Muscle Power" (Reg. Nos. 3,551,076 and 3,547,541) and "I Am Muscle Power" (Serial No. 77/679,693), along with any and all of the goodwill associated with and represented and symbolized by such marks. The Court hereby orders the cancellation of Reg. Nos. 3,551,076 and 3,547,541 and certifies such order to the Director of the United States Patent and Trademark Office "who shall make appropriate entry upon the records of the Patent and Trademark Office and shall be controlled thereby," pursuant to 15 U.S.C. § 1119;

(d) As set forth in the confidential settlement agreement between the Parties, VPX withdraws its petitions to cancel CytoSport's registrations for the "Muscle Milk" and "Muscle Milk Light" marks, Petition for Cancellation Nos. 92051604, 92051605, 92051607 and 92051697 before the Trademark Trial and Appeal Board of the United States Patent and Trademark Office;

(e) Each of the Parties shall bear its own costs, expenses and attorneys' fees associated with the prosecution and defense of this action;

(f) Any and all motions that remain pending on the docket for this action are hereby denied as moot;

(g) This Court shall retain subject matter jurisdiction over this matter for purposes of enforcement of this order and the Parties' settlement of this action, and the Parties hereby expressly consent to the exclusive personal jurisdiction of this Court with respect to any action arising from or related to this Settlement Agreement; and

(h) The Clerk of the Court is directed to close the above-captioned action.

IT IS SO ORDERED.

20120928

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