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Innovation Ventures, LLC v. Pittsburg Wholesale Grocer, Inc.

United States District Court, Ninth Circuit

October 8, 2013

INNOVATION VENTURES, LLC, LIVING ESSENTIALS, LLC, and INTERNATIONAL IP HOLDINGS, LLC, Plaintiffs,
v.
PITTSBURG WHOLESALE GROCER, INC. d/b/a PITCO FOODS, ET AL., Defendants. RELATED CROSS-ACTIONS.

Thomas P. Mazzucco-CA Bar No. 139758 Aaron K. McClellan-CA Bar No. 197185 Bryan L. P. Saalfeld-CA Bar No. 243331 Nicholas C. Larson-CA Bar No. 275870 MURPHY, PEARSON, BRADLEY & FEENEY, P.C., San Francisco, CA, Geoffrey Potter (pro hac vice) Michelle W. Cohen (pro hac vice) Christos G. Yatrakis (pro hac vice) Aron Fischer (pro hac vice) PATTERSON BELKNAP WEBB & TYLER LLP, New York, NY, Attorneys for Plaintiffs INNOVATION VENTURES, LLC, LIVING ESSENTIALS, LLC, and INTERNATIONAL IP HOLDINGS, LLC

Tatum S. Hilmoe, Esq., Tatum Hilmoe, PC, Los Angeles, California, Attorneys for RAHIB, GOLDBERG & ASSOCIATES, INC.

[PROPOSED] CONSENT JUDGMENT AND PERMANENT INJUNCTION

WILLIAM H. ALSUP, District Judge.

On consent of Plaintiffs Innovation Ventures, LLC, Living Essentials, LLC, and International IP Holdings, LLC (together, "Living Essentials") and Defendant Rahib, Goldberg & Associates, Inc. d/b/a Courtesy Wholesale ("RGA"), it is hereby ORDERED, ADJUDGED and DECREED:

1. For purposes of this injunction, the "5-hour ENERGY® Marks" are:

• "5 HOUR ENERGY" (Registration No. 3, 003, 077);
• "5-HOUR ENERGY" (Registration No. 4, 004, 225);
• (Registration No. 4, 104, 670);
• which includes the wording "5-hour ENERGY" in black outlined in yellow, below which are the words "EXTRA STRENGTH" in yellow, along with a person in black silhouette, outlined in yellow, shown in an athletic pose adjacent to an uneven landscape, with the sky depicted in transitioning colors from black to red as the sky meets the landscape (Registration No. 4, 116, 951);
• commonly referred to as "Running Man, " (Registration No. 3, 698, 044); and
• which includes the wording "5-hour ENERGY" in black outlined in yellow, along with a person in black silhouette, outlined in yellow, shown in an athletic pose adjacent to an uneven landscape, with the sky depicted in transitioning colors from red to yellow as the sky meets the landscape (Registration No. 4, 120, 360).

2. For purposes of this injunction, the "5-hour ENERGY® Trade Dress" is the distinctive packaging used to distinguish 5-hour ENERGY® products in the marketplace and which consumers associate strongly with the products. The packaging is shown as follows:

3. For purposes of this injunction, the "5-hour ENERGY® Copyright" is United States Copyright Registration Number TX 6-833-514 for the "Caution" label used on the 5-hour ENERGY® bottle. The copyrighted work reads as follows:

CAUTION: Contains about as much caffeine as a cup of coffee. Limit caffeine products to avoid nervousness, sleeplessness, and occasionally rapid heartbeat. You may experience a Niacin Flush (hot feeling, skin redness) that lasts a few minutes. This is ...

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