Microsoft Corporation v. Eitan Zviely et al

Filing 58

CONSENT DECREE AND PERMANENT INJUNCTION by Judge Audrey B. Collins Related to: Stipulation for Permanent Injunction 57 Plaintiff Microsoft Corporation against defendants InterGo.com,Inc., MegaGo.com, Inc., MegaWeb.com, Inc., Migaspider.com, Inc., USG O, Inc., Eitan Zviely. Parties have entered into a Settlement Agreement which provides for the entry of this Stipulated Consent Decree... Pursuant to Federal Rule of Civil Procedure 65(d), Defendants, together with their principals, officers, directo rs, agents, affiliates, employees and attorneys, and those in active concert or participation with each of them, shall be and are hereby PERMANENTLY RESTRAINED AND ENJOINED from: infringing Microsoft's tradenames, trademarks and service marks se t forth on Exhibit A hereto (the "Microsoft Trademarks") or any other trademark or service mark of which Defendants actually know Microsoft claims ownership.. This Court shall retain jurisdiction over the subject matter hereof and over Defe ndants to ensure compliance with this Consent Decree...The Court shall determine whether any of Defendants has violated the terms of this Consent Decree pursuant to this definition. A "violation" shall be defined as the failure to comply with paragraphs 5.a., 5.b., 5.c., or 5.d... PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS) (Attachments: # 1 Exhibit A to Stipulated Consent Decree and Permanent Injunction) (lw)

CAROLYN M. TRINH (SBN 254422) ctrinh@orrick.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 3 Los Angeles, CA 90017 Telephone: 213-629-2020 4 Facsimile: 213-612-2499 1 5 6 7 8 9 10 11 12 THOMAS H. ZELLERBACH (SBN 154557) tzellerbach@orrick.com JESSE Y. CHENG (SBN 259909) jcheng@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: 650-614-7400 Facsimile: 650-614-7401 Attorneys for Plaintiff, MICROSOFT CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 13 14 15 16 17 18 19 20 21 22 MICROSOFT CORPORATION, a Washington corporation, Plaintiff, v. EITAN ZVIELY, an individual, MEGAWEB.COM, INC., a Delaware corporation, INTERGO.COM, INC., a Delaware corporation, MEGAGO.COM, INC., a Delaware corporation, MEGASPIDER.COM, INC., a Delaware corporation, and USGO, Inc., a California corporation, and DOES 1 through 10, Defendants, Defendant. Case No. CV10-02581 ABC (RZx) STIPULATED [PROPOSED] CONSENT DECREE AND PERMANENT INJUNCTION NOTE: CHANGES MADE BY THE COURT MEGAWEB.COM, INC., a Delaware corporation, Counterclaimant, 24 v. 25 MICROSOFT CORPORATION, a 26 Washington corporation 23 27 Counterdefendant. 28 STIPULATED [PROPOSED] CONSENT DECREE CASE NO.: CV10-02581 ABC (RZx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] CONSENT DECREE AND PERMANENT INJUNCTION 1. Plaintiff Microsoft Corporation (“Microsoft”) filed this action on April 8, 2010. On February 17, 2011, Microsoft filed its First Amended Complaint, asserting that Defendants Eitan Zviely, Intergo.com, Inc., Megago.com, Inc., and MegaWeb.com, Inc., Megaspider.com, Inc., and USGO, Inc. (collectively, “Defendants”) (Microsoft and Defendants collectively, “the Parties”), registered or directed the registration of Internet domain names set forth in Exhibit A, which Microsoft alleges consist of, incorporate, or are likely to be confused with Microsoft’s “Hotmail” trademark. Microsoft asserts claims for violation of the Anti-Cybersquatting Consumer Protection Act, trademark infringement, unfair competition, and unjust enrichment. 2. The Parties have entered into a Settlement Agreement which provides for the entry of this Stipulated Consent Decree. 3. This Court has jurisdiction over the Lanham Act claims pursuant to 28 U.S.C. §§ 1331 and 1338 and supplemental jurisdiction over the remaining claims pursuant to 28 U.S.C. §1367. 4. Microsoft owns valid and existing trademark rights in the mark HOTMAIL, including United States Trademark Registration Nos. 2,165,601 (the “Hotmail Mark”). Microsoft’s rights to the Hotmail Mark extend to using the Hotmail Mark for advertising and marketing services, namely, for promoting the goods and services of others by placing advertisements and promotional displays in an electronic site accessed through computer networks and by delivering advertisements and promotional materials to others via electronic mail. 5. Pursuant to Federal Rule of Civil Procedure 65(d), Defendants, together with their principals, officers, directors, agents, affiliates, employees and attorneys, and those in active concert or participation with each of them, shall be and are hereby PERMANENTLY RESTRAINED AND ENJOINED from: a. infringing Microsoft’s tradenames, trademarks and service -2- STIPULATED [PROPOSED]CONSENT DECREE CASE NO.: CV10-02581 ABC (RZx) 1 marks set forth on Exhibit A hereto (the “Microsoft 2 Trademarks”) or any other trademark or service mark of which 3 Defendants actually know Microsoft claims ownership; 4 b. 5 mark of which Defendants actually know Microsoft claims 6 ownership, or any version thereof, in connection with the 7 description, marketing, promotion, advertising, or sale of 8 products or services not associated with or approved by 9 Microsoft; 10 c. 11 any other trademark or service mark of which Defendants 13 actually know Microsoft claims ownership, including but not 14 limited to domain names containing the Microsoft Trademarks 15 and domain names containing misspellings of the Microsoft 16 Trademarks; and 17 d. 18 22 23 24 25 26 27 28 assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in 19 21 registering, using, or trafficking in any domain names that are identical or confusingly similar to the Microsoft Trademarks, or 12 20 using Microsoft Trademarks or any other trademark or service subparagraphs 5.a. through 5.c. above. 6. This Court shall retain jurisdiction over the subject matter hereof and over Defendants to ensure compliance with this Consent Decree. 7. Any proceeding before this Court to enforce the terms of this Consent Decree shall be resolved by means of a noticed motion without the necessity of filing a new and separate action. The parties to such proceedings will be permitted to submit evidence and memorandums of points and authorities according to the ordinary briefing requirements for a noticed motion as set forth by the Federal Rules of Civil Procedure and this Court’s local rules then in effect. The Court shall have discretion to allow live testimony or other evidence in addition to any documentary -3- STIPULATED [PROPOSED]CONSENT DECREE CASE NO.: CV10-02581 ABC (RZx) 1 2 3 4 evidence or declarations submitted as part of the noticed motion briefings. 8. The Court shall determine whether any of Defendants has violated the terms of this Consent Decree pursuant to this definition. A “violation” shall be defined as the failure to comply with paragraphs 5.a., 5.b., 5.c., or 5.d. above. 5 6 IT IS SO ORDERED. 7 Dated this 17 day of June, 2011 8 ___________________________________ HON. AUDREY B. COLLINS UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- STIPULATED [PROPOSED]CONSENT DECREE CASE NO.: CV10-02581 ABC (RZx)