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Core Nutritionals, LLC v. Performance Nutrition Formulators, LLC

United States District Court, C.D. California

March 24, 2017

CORE NUTRITIONALS, LLC, Plaintiff,
v.
PERFORMANCE NUTRITION FORMULATORS, LLC dba VMI SPORTS and LONE STAR DISTRIBUTION, LLC, Defendants.

          Lawrence R. LaPorte, Charles A. Kertell, MANATT, PHELPS & PHILLIPS, LLP Attorneys for Plaintiff CORE NUTRITIONALS, LLC.

          CONSENT JUDGMENT AND PERMANENT INJUNCTION [JS-6]

          Hon. Terry J. Hatter, J.

         WHEREAS, plaintiff Core Nutritionals, LLC ("Core Nutritionals"), defendant Performance Nutrition Formulators, LLC dba VMI Sports ("VMI Sports"), and defendant Lone Star Distribution, LLC ("Lone Star") have agreed in a separate agreement to settlement of the matters in issue between them and to entry of this Consent Judgment and Permanent Injunction, it is hereby ORDERED, ADJUDGED, AND DECREED THAT:

         1. This is an action for: (1) federal trademark infringement and federal false designation of origin under the Trademark (Lanham) Act of 1946, as amended, 15 U.S.C. §1051, et seq.; (2) statutory unfair competition under California Business and Professions Code §17200, et seq.; (3) common law trademark infringement; and (4) common law unfair competition.

         2. This Court has jurisdiction over all of the parties in this action and over the subject matter in issue based on 28 U.S.C. §§1331, 1338(a), 1338(b), and 1367(a), as well as 15 U.S.C. §1121(a). This Court further has continuing jurisdiction to enforce the terms and provisions of this Consent Judgment and Permanent Injunction. Venue is also proper in this Court pursuant to 28 U.S.C. §§1391(b) and 1391(c).

         3. Core Nutritionals is a Virginia limited liability company, having its principal place of business at 820 North Pollard Street RTL #3, Arlington, Virginia 22203.

         4. VMI Sports is a Texas limited liability company having its principal place of business at 3838 Oak Lawn Avenue, Suite No. 510, Dallas, Texas 75219.

         5. Lone Star is a Delaware limited liability company having its principal place of business at 807 Amblewood Drive, Lucas, Texas 75002.

         6. Core Nutritionals is the owner of all right, title, and interest in United States Trademark Registration No. 4, 341, 175 ("the '175 trademark") for CRUSH IT! for dietary and nutritional supplements, which is valid and enforceable. A copy of this registration is attached hereto as Exhibit 1.

         7. VMI Sports and Lone Star have advertised, marketed, promoted, distributed, offered for sale, and sold dietary and/or nutritional supplements using and/or bearing "KRUSH IT" in the United States (the "KRUSH IT supplements"). Examples from VMI Sports' website (www.vmisports.com) and Instagram page (@vmisports) are attached hereto as Exhibits 2 & 3, respectively.

         8. VMI Sports and Lone Star's advertising, marketing, promotion, distribution, offer for sale, and sale of the KRUSH IT supplements is likely to cause, and has caused, confusion, mistake, and deception among the consuming public in that it literally and/or colorably imitates the '175 trademark. It therefore constitutes infringement of the '175 trademark in violation of the Lanham Act, 15 U.S.C. §1051, et seq., to the substantial and irreparable injury of the public and of Core Nutritionals' business reputation and goodwill.

         9. VMI Sports and Lone Star's advertising, marketing, promotion, distribution, offer for sale, and sale of the KRUSH IT supplements has also infringed on Core Nutritionals' federal and common law trademark rights in the '175 trademark in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a), as such acts are likely to deceive, and have deceived, customers and prospective customers into believing that VMI Sports and Lone Star's KRUSH IT supplements are from, sponsored by, or affiliated with Core Nutritionals.

         10. VMI Sports and Lone Star's advertising, marketing, promotion, distribution, offer for sale, and sale of the KRUSH IT supplements further constitutes statutory unfair competition in violation of California Business & Professions Code §17200, et seq., common law trademark infringement, and common law unfair competition.

         11. VMI Sports, Lone Star, their officers, their directors, their agents, their assigns, and all persons and/or entities acting for, with, by, though, and/or in concert and participation with them, or any of them, are hereby ...


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