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Color Me Mine Enterprises, Inc. v. Southern States Marketing, Inc.

United States District Court, Ninth Circuit

May 6, 2013

COLOR ME MINE ENTERPRISES, INC., a California corporation, Plaintiff,
v.
SOUTHERN STATES MARKETING, INC., a Georgia corporation, , Defendants.

Lewis Anten, Esq., SBN 56459 Ivy Choderker, Esq., SBN 210612 lewisanten@mindspring.com LEWIS ANTEN, A PROFESSIONAL CORP., Encino, California, Southern States Marketing, Inc.; Peachtree Playthings, Inc.; Peachtree Playthings (HK) Ltd.; Walgreen Co.; Michaels Stores, Inc.; Mary Maxim, Inc.; Hobby Lobby Stores, Inc.; Toys "R" Us, Inc.; CVS Caremark Corporation; and Four Seasons General Merchandise, Inc. Attorneys for Defendants.

[PROPOSED] JUDGMENT AS TO DEFENDANT TOYS "R" US, INC.

R. GARY KLAUSNER, District Judge.

WHEREAS, the Court, in its Order Re: Plaintiff's Motion for Partial Summary Judgment (DE 169); Retail Defendants' Motion for Partial Summary Judgment (DE 160); Defendants Peachtree Playthings HK Ltd, Peachtree Playthings Inc., and Southern States Marketing, Inc.'s Motion for Summary Judgment (DE 163) (Pacer Docket No. 236) granted summary judgment of no monetary recovery and no willfulness in favor Defendants Toys "R" Us, Inc., CVS Caremark Corporation, Mary Maxim, Inc., Four Seasons General Merchandise, Inc., Michaels Stores, Inc. Hobby Lobby Stores, Inc., Walgreen Co., and Wal-Mart Stores, Inc. (collectively, "Retail Defendants"); and

WHEREAS, Toys "R" Us, Inc. ("Toys R Us") never sold any products purchased from Peachtree Playthings, Inc., Peachtree Playthings (HK) Ltd., or Southern States Marketing, Inc. bearing the name "Color Me Mine" or "Mine To Color"; and

WHEREAS a determination on the validity and infringement of Plaintiff's Service Mark "Color Me Mine, " and the granting of an injunction, is moot the Court granted summary judgment in favor of defendant Toys R Us as to all claims;

IT IS HEREBY ORDERED as follows:

1. Judgment is entered in favor of Toys R Us;

2. Toys R Us is the prevailing party;

3. Plaintiff is not entitled to recovery of actual damages from Toys R Us;

4. Plaintiff is not entitled to recovery of profits from Toys R Us;

5. Plaintiff's demand for an injunction from Toys R Us is denied as moot;

6. Toys R Us are awarded their costs; and

7. Toys R Us reserves its rights to seek its attorneys' fees pursuant to 15 U.S.C. section 1117(a) as the prevailing party, upon appropriate motion filed with the Court within fourteen (14) days of the entry of this Order.

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