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Bmw of North America, LLC v. Dinodirect Corp.

United States District Court, Ninth Circuit

July 2, 2013

BMW OF NORTH AMERICA, LLC, ROLLS-ROYCE MOTOR CARS NA, LLC, ROLLS-ROYCE MOTOR CARS LIMITED, and BAYERISCHE MOTOREN WERKE AG, Plaintiffs,
v.
DINODIRECT CORP., DINODIRECT CHINA LTD., B2CFORCE INT'L CORP., and JIANFENG FENG a/k/a KEVIN FENN a/k/a KEVIN FENG, Defendants.

Jane L. Froyd (State Bar No. 220776) JONES DAY, Palo Alto, CA, John G. Froemming (Admitted pro hac vice) JONES DAY, Washington, DC, Attorney for Plaintiffs BMW OF NORTH AMERICA, LLC, ROLLS-ROYCE MOTOR CARS NA, LLC, ROLLS-ROYCE MOTOR CARS LIMITED, and BAYERISCHE MOTOREN WERKE AG.

Mark B. Frazier (State Bar No. 107221) Damon Mircheff (State Bar No. 216257) RUTAN & TUCKER, LLP, Costa Mesa, California, Attorneys for Defendants DINODIRECT CORP.; DINODIRECT CHINA LTD.; B2FORCE INT'L CORP.; AND JIANFENG FENG aka KEVIN FENG aka KEVIN FENN.

CONSENT JUDGMENT AND PERMANENT INJUNCTION

WILLIAM ALSUP, District Judge.

This action, having come on for consideration on the Amended Complaint of the Plaintiffs for direct trademark infringement and counterfeiting and unfair competition against the Defendants with regard to Plaintiffs' proprietary rights in their trademarks;

The Defendants, having stipulated to the facts referenced herein, and the parties having otherwise waived the entry of findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure, and without trial, argument or adjudication of any issue of fact or law, having consented and stipulated to the entry of this Consent Judgment and Permanent Injunction under the terms provided herein:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

This Court has jurisdiction over the subject matter of this action under the laws of the United States, 15 U.S.C. § 1121 et seq., and supplemental jurisdiction over Plaintiffs' state law claims under 28 U.S.C. § 1367(a), and has jurisdiction over each of the Defendants. The claims arising under the laws of the State of California are joined with substantial and related claims under the trademark laws of the United States.

The Defendants acknowledge the existence and validity of the trademarks described in Paragraphs 14-22 of Plaintiffs' Amended Complaint, attached as Exhibit A. Specifically, BMW is the exclusive owner of valid and subsisting federal trademark registrations, including trademark registrations for its Roundel logo, "BMW" mark, Rolls-Royce Badge ("RR Badge"), "BMW Group" mark, Flying Lady Device, "Z8" mark, and M-Stripes logo, attached hereto as Exhibit B, as well as common law rights to the trademark BMW MOTORSPORT (collectively, the "BMW Marks"), and BMW's Roundel logo, "BMW" word mark, and RR Badge are famous. In addition, BMW has extensively used and advertised the BMW Marks in connection with its business of designing, manufacturing, distributing, offering for sale and selling motor vehicles, vehicles parts, and lifestyle items throughout the United States.

IT IS FURTHER ORDERED that:

1. Defendants, their parents, affiliates, subsidiaries, and their respective officers, agents, servants, employees, independent contractors and attorneys, or any other person or entity acting in concert or participating with anyone described above, and any successor in interest or future owners of the Defendants, agree to be and are immediately and permanently enjoined from:

A. designing, creating, manufacturing, advertising, marketing, promoting, offering for sale, ordering, accepting orders for, providing the means to order, brokering, selling, warehousing, delivering, shipping, importing, exporting, distributing, or accepting shipment or delivery of, any products that are not made or authorized by BMW that depict or bear any of the BMW Marks or any other trademark or logo of BMW or colorable imitations thereof, including any Chinese version thereof, or facilitating, inducing, or assisting any of the activity set forth above;

B. operating or hosting any website that sells or offers to sell goods using counterfeit reproductions of the BMW Marks or any colorable imitations thereof or any other trademark of BMW's; or permitting, facilitating or allowing suppliers, customers, users or members of or to www.dinodirect.com or any other website or business now or in the future owned, operated or controlled wholly or in part by, or affiliated with any of the Defendants, to post or display listings or offers to sell, buy, manufacture or distribute goods bearing a BMW Mark or advertised with a BMW logo, which are not genuine BMW goods.

C. displaying BMW's logos or colorable imitations thereof, including but not limited to BMW's Roundel logo, RR Badge, M-Stripes logo, and MINI Wings logo (attached hereto as Exhibit C), on any website, in promotional or marketing materials, or otherwise in connection with their business or on any website where such use is not authorized by BMW;

D. advertising or describing products that are not by BMW, Rolls-Royce, or MINI as "BMW, " "Rolls-Royce, " or "MINI" products, or otherwise using BMW's trademarks or colorable imitations thereof as or in the names, titles, and listings of products not made or authorized by BMW, such as using the term "BMW Accessories" to sell non-genuine accessories for BMWs, or ...


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