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)
[e-mail]
2 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
3 Los Angeles, CA 90017
Telephone: [phone]
4 Facsimile: 213-612-2499
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THOMAS H. ZELLERBACH (SBN 154557)
[e-mail]
JESSE Y. CHENG (SBN 259909)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025
Telephone: [phone]
Facsimile: 650-614-7401
Attorneys for Plaintiff,
MICROSOFT CORPORATION
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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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,
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v.
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MICROSOFT CORPORATION, a
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Counterdefendant.

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STIPULATED [PROPOSED] CONSENT DECREE
CASE NO.: CV10-02581 ABC (RZx)

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[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
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STIPULATED [PROPOSED]CONSENT DECREE
CASE NO.: CV10-02581 ABC (RZx)

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marks set forth on Exhibit A hereto (the “Microsoft

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Trademarks”) or any other trademark or service mark of which

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Defendants actually know Microsoft claims ownership;

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b.

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mark of which Defendants actually know Microsoft claims

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ownership, or any version thereof, in connection with the

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description, marketing, promotion, advertising, or sale of

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products or services not associated with or approved by

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Microsoft;

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c.

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any other trademark or service mark of which Defendants

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actually know Microsoft claims ownership, including but not

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limited to domain names containing the Microsoft Trademarks

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and domain names containing misspellings of the Microsoft

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Trademarks; and

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d.

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assisting, aiding, or abetting any other person or business entity
in engaging in or performing any of the activities referred to in

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registering, using, or trafficking in any domain names that are
identical or confusingly similar to the Microsoft Trademarks, or

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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
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STIPULATED [PROPOSED]CONSENT DECREE
CASE NO.: CV10-02581 ABC (RZx)

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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.

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IT IS SO ORDERED.

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Dated this 17 day of June, 2011

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___________________________________
HON. AUDREY B. COLLINS
UNITED STATES DISTRICT JUDGE

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STIPULATED [PROPOSED]CONSENT DECREE
CASE NO.: CV10-02581 ABC (RZx)