June 3, 2013
METRIC PRODUCTS, INC., a California corporation Plaintiff,
MOGO PRODUCTS, LLC, a domestic limited liability company, Defendants.
Willmore F. Holbrow, III, (SB# 169688) Dennis G. Martin, (SB# 54060) BLAKELY, SOKOLOFF, TAYLOR & ZAFMAN LLP, Los Angeles, California, Attorneys for Plaintiff.
Joel Weiss, WEISS & ARONS LLP, Pomona, NY. Attorneys for Defendant MOGO PRODUCTS, LLC
CONSENT JUDGMENT AND PERMANENT INJUNCTION
JESUS G. BERNAL, District Judge.
This Consent Judgment and Permanent Injunction is entered into as of May 2, 2013, between plaintiff Metric Products, Inc. ("Metric") and defendant Mogo Products, LLC ("Mogo"), through their respective counsel, with reference to the following facts:
Whereas Mogo sold, offered for sale and/or otherwise distributed an eye shade product referred to as the "Contoured Sleep Mask" (photo attached as "Exhibit A") (hereinafter referred to as the "Accused Product");
Whereas, Metric filed its Complaint in this action against Mogo for patent infringement of U.S. Patent Nos. D478, 342 and 6, 745, 397 (collectively, the "Subject Patents");
Whereas Mogo agrees that the Accused Product infringes the Subject Patents;
Whereas the parties entered a Settlement Agreement to resolve this dispute;
Whereas, Defendant acknowledges and agrees that United States Patent D478, 342 (the "'342 Patent"), entitled "Eye Shade", is valid and enforceable and Defendants further agree not to take or assist in any action which seeks to invalidate the 342 Patent or render the 342 Patent unenforceable;
Whereas, Defendant acknowledges and agrees that each and every claim in United States Patent 6, 745, 397 (the "'397 Patent"), entitled "Eye Shade, " is valid and enforceable and Defendant further agrees not to take or assist in any action which seeks to invalidate the 397 Patent or render the 397 Patent unenforceable;
Whereas, Defendant agrees to be permanently enjoined from the acts that are the subject of this dispute;
Now, therefore, Mogo and Metric request that the Court enter this Consent Judgment and Permanent Injunction ("Injunction"), and request that the Court retain jurisdiction to enforce the Settlement Agreement and the Injunction.
Accordingly, it is hereby ORDERED, ADJUDGED and DECREED:
1. U.S. Patent Nos. D478, 342 and 6, 745, 397 (the "Subject Patents") are valid and enforceable.
2. Defendant has infringed the Subject Patents by its importation and sale of the Accused Product (photo attached as Exhibit A).
3. Defendant and its associates, agents, servants, employees, officers, directors, representatives, successors, and assigns, as well as any person controlling, controlled by, affiliated with, in privity with, or in active concert or participation with them with notice of this Order are permanently enjoined from:
a. making, using, offering to sell, selling, distributing or importing products that infringe, either literally or by equivalents, the claim of the 342 Patent, including without limitation, the Accused Product; and
b. making, using, offering to sell, selling, distributing or importing products that infringe, either literally or by equivalents, any of the claims of the 397 Patent, including without limitation, the Accused Product;
4. The Court hereby retains jurisdiction to enforce the terms of the Settlement Agreement and this Injunction. In the event Defendant fails to comply with the terms of the Settlement Agreement and/or Injunction, Plaintiff shall be entitled to a monetary Judgment against Defendant, jointly and severally, for damages subject to proof, plus reasonable attorneys' fees and costs incurred by Plaintiff in enforcing the Settlement Agreement or Injunction.
IT IS SO STIPULATED.