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Otter Products, LLC, A Colorado Limited Liability Company v. Blutekusa.Com

November 30, 2012

OTTER PRODUCTS, LLC, A COLORADO LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
BLUTEKUSA.COM, INC., A NEW YORK CORPORATION; AND DOES 1-10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Stephen V. Wilson United States District Court Judge

PERMANENT INJUNCTION ORDER AGAINST DEFENDANT BLUTEKUSA.COM, INC.

Complaint Filed: May 14, 2012

Having reviewed the Stipulation to Issuance of Permanent Injunction entered into between Plaintiff OTTER PRODUCTS, LLC ("Plaintiff") and Defendant BLUTEKUSA.COM, INC. ("Defendant"), and good cause appearing, the Court hereby finds as follows:

a. WHEREAS Plaintiff is the owner of numerous trademarks which it uses in connection with the manufacture, distribution, sale and promotion of a wide range of products, including high-quality protective cases, peripherals and accessories for portable electronic devices and computers. Plaintiff owns all rights in and to a family of federally registered trademarks which include the following, among others (collectively, "Plaintiff's Registered Marks"):

Trademark Reg. No. Reg. Date

OTTER BOX 2287619 October 19, 1999 [DESIGN MARK] 3791318 May 18, 2010 OTTER BOX 3788535 May 11, 2010 OTTERBOX 3788534 May 11, 2010 WE'VE GOT 3865367 October 19, 2010 TECHNOLOGY COVERED DEFENDER SERIES 3623789 May 19, 2009 STRENGTH 4079672 January 3, 2012 COMMUTER SERIES 3963182 May 17, 2011 COMMUTER 3791317 May 18, 2010 IMPACT SERIES 3795187 March 10, 2010 REFLEX ZONE 4111433 March 13, 2012 REFLEX SERIES 3972039 May 31, 2011 UTILITY SERIES 4064940 November 29, 2011 ARMOR SERIES 3632231 June 2, 2009 PINK IS STRENGTH! 4053182 November 8, 2011 OTTERCARES 4101071 February 21, 2012

[DESIGN MARK] 4116998 March 27, 2012

2. WHEREAS Plaintiff also has numerous pending trademarks with the United States Patent and Trademark Office. The serial numbers of Plaintiff's pending trademarks are as follows: 85416877; 85456430; 85458259; 85462689; 85483745; 85505980; 85576166; 85531307; 85505993; 85505986; 85505999; 85428337; 85288182; 85288187 and 85342514.

3. WHEREAS on May 14, 2012, Plaintiff filed its Complaint in this Civil Action No. CV12-04199 SVW (FMOx) against Defendant, alleging causes of action under §32(1) of the Lanham Act (15 U.S.C. §1114(1)) for infringement of federally registered trademarks, under §43(c) of the Lanham Act (15 U.S.C. 1125(c)) and California Business & Professions Code § 14247 for dilution of federally registered and common law trademarks, under §43(a) of the Lanham Act (15 U.S.C. §1125(a)) for unfair competition, and under the statutory and common law of the State of California to enjoin Defendant's alleged current and prospective infringement and dilution of the Plaintiff's Marks and unfair competition, and to recover monetary damages resulting from those actions.

4. WHEREAS Plaintiff served the summons and Complaint on Defendant on May 24, 2012. Defendant filed an answer and denied all accusations.

5. WHEREAS Defendant has sold no less than no less than 1,800 units of allegedly counterfeit OTTERBOX® products on eBay.com, seller ID "blutekusa".

6. WHEREAS after reviewing the papers and evidentiary support provided to Defendant, Defendant has agreed to stipulate to the issuance of a permanent injunction with respect to matters referenced in this Stipulation.

7. WHEREAS Defendant admits that, without Plaintiff's knowledge or consent and based on information provided to Defendant by Plaintiff, it unknowingly purchased and sold in interstate commerce counterfeit and non-genuine products which displayed, infringed, and diluted Plaintiff's Marks.

8. WHEREAS the parties expressly waive any findings of fact, conclusions of law, statement of decision and any right to notice or right to be heard in any matter in connection with or arising out of the filing, rendition or entry of the Permanent Injunction Order on this Stipulation for Entry of Permanent Injunction, provided however, that no such waiver shall be deemed to exist insofar as damages are concerned, it being agreed that Defendant may offer proof in defense of Plaintiff's claims for damages.9. WHEREAS the parties agree that the permanent injunction shall remain in full force and effect through the ...


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