J.T. Posey Company v. E.M. Adams, Inc.

Filing 12

CONSENT JUDGMENT AND ORDER OF DISMISSAL by Judge R. Gary Klausner ( MD JS-6. Case Terminated ) (See Judgment for further details) (yl)

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SHELDON MAK ROSE & ANDERSON PC Jeffrey G. Sheldon (SBN 67516) [e-mail] Marc A. Karish (SBN 205440) [e-mail] 100 Corson Street, Third Floor Pasadena, California 91103-3842 Tel. [phone] Fax [phone] Attorneys for Plaintiff J. T. POSEY COMPANY

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) Case No. CV 08-00910 RGK (RZx) ) ) CONSENT JUDGMENT AND ORDER ) OF DISMISSAL ) ) ) ) ) ) ) )

11 J.T. POSEY COMPANY 12 13 Plaintiff, 14 vs. 15 E.M. ADAMS, INC. 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant

On February 8, 2008, Plaintiff J.T. Posey Company filed its Complaint against Defendant E.M. Adams, Inc. alleging that Defendant willfully infringed J.T. Posey Company's U.S. Patent No. 5,618,263 ("the `263 Patent"), titled "Soft Splint" and J.T. Posey Company's splint trade dress rights. Among other things, the Complaint sought damages and a permanent injunction prohibiting Defendant from directly or indirectly infringing any claim of the `263 Patent or Plaintiff's splint trade dress rights.
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CONSENT JUDGMENT

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On August 26, 2008, Plaintiff and Defendant entered into a Settlement Agreement ("the Agreement") pursuant to which each party has agreed to forego the right to further contest its claims and defenses and to enter into certain agreements with the other party to resolve the dispute which is the subject of this action. Defendant denies it has violated any rights of Plaintiff. NOW THEREFORE, upon consent of Plaintiff and Defendant, upon all prior proceedings herein, it is ORDERED, ADJUDGED AND DECREED that: 1. This Court has jurisdiction over the parties to this Action. 2. Defendant E.M. Adams, Inc. and its officers, directors, employees, agents, licensees, successors and assigns and all others acting in concert and participating with defendant are permanently restrained and enjoined from making, using, offering for sale and selling splints that infringe the `263 Patent including, but not limited to, the splint which is shown in Exhibit 1 attached hereto, which utilizes lightweight plastic foam bead filler material. 3. Defendant E.M. Adams, Inc. and its officers, directors, employees, agents, licensees, successors and assigns and all others acting in concert and participating with defendant from a. Directly or indirectly manufacturing, producing, printing, distributing, importing, trafficking in, selling, offering for sale, possessing, advertising, promoting or displaying any splint products, bearing any simulation, reproduction, copy or colorable imitation of Plaintiff's Splint Trade Dress which is defined as a splint that is approximately half blue and approximately half white. b. Directly or indirectly printing and/or importing into the United States any containers, labels or packaging and/or instructing and directing any third parties to make containers, labels or packaging bearing any
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simulation, reproduction, copy or colorable imitation of the Splint Trade Dress; c. Making any unauthorized use of the Splint Trade Dress in such a way as to cause confusion, mistake or deception as to the affiliation, connection or association of the Defendant with Plaintiff or as to the origin, sponsorship or approval of Defendant's products; and d. Using any false designation of origin or false description or misrepresentation, or performing any other act which is likely to mislead the trade or public, or individual members thereof, into believing that the Defendant's splint products, or the containers, packaging or labeling for those products, which did not originate with Plaintiff, are associated or connected with Plaintiff. 4. Defendant E.M. Adams, Inc. and its officers, directors, employees, agents, licensees, successors and assigns and all others acting in concert and participating with defendant are enjoined from challenging the validity and/or the enforceability, either in the courts or in the U.S. Patent Office of the `263 Patent, nor assist any third party in doing so, except that E.M. Adams may challenge the validity and/or the enforceability, either in the courts or in the U.S. Patent Office, of the '263 Patent if Plaintiff sues E.M. Adams for infringement of the `263 Patent. 5. Defendant E.M. Adams, Inc. and its officers, directors, employees, agents, licensees, successors and assigns and all others acting in concert and participating with defendant are enjoined not to challenge the validity and/or the enforceability of Plaintiff's Splint Trade Dress, nor assist any third party in doing so. 6. The parties have entered into a Settlement Agreement providing for the entry of this Consent Judgment. 7. The Court shall retain jurisdiction over the parties to enforce the terms of
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CONSENT JUDGMENT

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this Consent Judgment and the terms of the Settlement Agreement which is incorporated herein by reference. 8. Accordingly, Plaintiff's Complaint is hereby dismissed with prejudice. Dated: August, 29, 2008 SHELDON MAK ROSE & ANDERSON PC By:_/s/Jeffrey G. Sheldon______________ Jeffrey G. Sheldon Attorneys for J.T. Posey Company QUARLES BRADY LLP Dated: August 29, 2008 By:__/s/Deanna Conn_________________ Deanna Conn Attorneys for Defendant E.M. Adams, Inc.

IT IS SO ORDERED. Date: September 30, 2008 By:____________________________ R. Gary Klausner United States District Judge

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CONSENT JUDGMENT

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J.T. Posey

EXHIBIT "1"

E. M. Adams

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CONSENT JUDGMENT

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