July 1, 2013
HOSTZILLA, LTD., a Hong Kong corporation, Plaintiff,
HOSTZILLA, INC., a Nevada corporation Defendant.
FINAL JUDGMENT - WITH MODIFIED LANGUAGE
DALE S. FISCHER, District Judge.
The Court, having granted an Ex Parte Application for a Final Judgment - With Modified Language filed by Plaintiff HostZilla, Ltd. ("HostZilla"),
Judgment is entered in favor of Plaintiff HostZilla and against Defendant Hostzilla, Inc. ("HZI"), as follows:
1. HZI is liable for common law trademark infringement, resulting from HZI's use in commerce of marks that are likely to cause confusion with Plaintiff's HOSTZILLA trademark.
2. HZI and its officers, agents, servants, employees, owners, and representatives, and all other persons, firms, or corporations, who have actual notice of this Judgment, and are in active concert or participation with any of the foregoing, shall be, and hereby are, PERMANENTLY ENJOINED and restrained from:
a. using in any manner the HOSTZILLA mark, or any name, mark, or domain name that wholly incorporates the HOSTZILLA mark or is likely to cause confusion with or is a colorable imitation of this mark, including, without limitation, any trade name and trademark incorporating the name "HOSTZILLA"; and
b. doing any act or thing calculated or likely to cause confusion or mistake in the minds of members of the public, or prospective customers of HostZilla's services, as to the source of the services offered for sale, distributed, or sold, which is likely to deceive members of the public or prospective customers into believing that there is some connection between HostZilla and HZI.
3. Pursuant to 15 U.S.C. § 1118, HZI must deliver for destruction, or show proof of destruction or sufficient modification to eliminate the infringing matter, all articles, packages, wrappers, products, displays, labels, signs, vehicle displays or signs, circulars, kits, packaging, letterhead, business cards, promotional items, clothing, literature, sales aids, receptacles or other matter in the possession, custody, or under the control of HZI or its agents bearing the trademark HOSTZILLA in any manner, or any mark that is likely to cause confusion with or is a colorable imitation of this mark, including without limitation the "HOSTZILLA" trade name and trademark, both alone and in combination with other words or terms.
4. HZI must take all steps necessary to cancel or remove the name HOSTZILLA from the business records of Nevada State (and any other areas in which HZI is licensed to do business) and otherwise take all steps necessary to change HZI's business name.
5. HZI must cease all use of the, , and domain names, remove all content from the, , and websites and domain name referring to HZI, and must take any and all reasonable steps to transfer each such domain name to HostZilla forthwith. The registrar for those URL's is ordered to transfer ownership and control from HZI to HostZilla forthwith on payment of appropriate expenses. The registry Verisign Inc., for and is ordered to change the registrar of record to one of Plaintiff's own choosing forthwith on payment of appropriate expense.
6. This Court shall retain jurisdiction over this matter for the purpose of enabling any party to the Judgment to apply to the Court at any time for such further orders or directions as may be necessary or appropriate, for the construction or carrying out of this Judgment, for modification of the injunctive provisions of this Judgment, and for Plaintiff to apply at any time for enforcement of any provisions of this Judgment and for punishment of any violations of this Judgment.
7. Within ten (10) days after the entry of this Judgment, HZI must file with the Court and serve upon counsel for HostZilla a report, in writing and under oath, setting forth in detail the manner and form in which HZI has complied with the injunctive provisions of this Judgment.