Forever 21, Inc. v. Ultimate Offprice, Inc.
Filing
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FINAL JUDGMENT, INCLUDING PERMANENT INJUNCTION by Judge Otis D Wright, II. Plaintiff is entitled to a judgment in its favor and against Defendant in the sum of $1,000,000.00 on Plaintiff's Complaint for Damages and Declaratory Relief.Compla int for Damages and Declaratory Relief. Defendant and any person or entity acting in concert with, at direction of, or authorizing or assisting any third party engaging in, including any and all agents, servants, employees, partners, assignees, distributors, suppliers, resellers and any other parties or individuals over which Defendant may exercise control, is hereby restrained and permanently enjoined. Related to: Stipulation for Judgment 34 . (MD JS-6, Case Terminated). (jp)
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JOHNSON & PHAM, LLP
Christopher D. Johnson, SBN: 222698
E-mail: cjohnson@johnsonpham.com
Christopher Q. Pham, SBN: 206697
E-mail: cpham@johnsonpham.com
Marcus F. Chaney, SBN: 245227
E-mail: mchaney@johnsonpham.com
Ani Sakalian, SBN: 274846
E-mail: asakalian@johnsonpham.com
6355 Topanga Canyon Boulevard, Suite 115
Woodland Hills, California 91367
Telephone: (818) 888-7540
Facsimile: (818) 888-7544
JS-6
Attorneys for Plaintiff
FOREVER 21, INC.
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UNITED STATES DISTRICT COURT FOR THE
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CENTRAL DISTRICT OF CALIFORNIA
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FOREVER 21, INC., a Delaware
Corporation,
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Plaintiff,
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vs.
CASE NO.: CV10-5485 ODW (JCGx)
FINAL JUDGMENT, INCLUDING
PERMANENT INJUNCTION,
AGAINST DEFENDANT ULTIMATE
OFFPRICE, INC.
ULTIMATE OFFPRICE, INC., a
California Corporation,
Defendants.
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The Court, pursuant to the Stipulation for Entry of Final Judgment, Including
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Permanent Injunction (“Stipulation”), between Plaintiff FOREVER 21, INC.
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(“Plaintiff”), and Defendant ULTIMATE OFFPRICE, INC. (“Defendant”), hereby
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ORDERS, ADJUDICATES, and DECREES that final judgment, including
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permanent injunction, shall be and hereby is entered on the Complaint in the above[PROPOSED] FINAL JUDGMENT, INCLUDING PERMANENT INJUNCTION, AGAINST DEFENDANT ULTIMATE OFFPRICE, INC.
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referenced matter as follows:
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FINDINGS OF FACTS.
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A.
FOREVER 21 is the owner of numerous trademarks which it uses in
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connection with the manufacture, distribution, sale and promotion of a wide range
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of products, including clothing and accessories. FOREVER 21 owns all rights in
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and to a family of FOREVER 21 federally registered trademarks which include the
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following, among others (federally registered trademarks collectively, “FOREVER
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21 Trademarks”):
Trademark
Reg. No.
Reg. Date
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FOREVER 21
2,583,457
June 18, 2002
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FOREVER 21
2,836,546
April 27, 2004
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FOREVER 21
2,913,132
December 21, 2004
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FOREVER 21
2,067,637
June 3, 1997
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XXI
2,873,174
August 17, 2004
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XXI
2,914,810
December 28, 2004
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XXI
2,842,184
May 18, 2004
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HERITAGE 1981
3,447,097
June 10, 2008
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FORLOVE21
3,140,565
September 5, 2006
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FORLOVE21
3,140,561
September 5, 2006
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LOVE & BEAUTY
3,794,963
May 25, 2010
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LOVE 21
3,775,903
April 13, 2010
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TWELVE BY TWELVE
3,518,050
October 14, 2008
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FOREVER STATIONERY
3,689,946
September 29, 2009
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FOREVER XXI
2,889,536
September 28, 2004
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FOREVER XXI
2,940,346
April 12, 2005
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FASHION 21
2,848,238
June 1, 2004
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[PROPOSED] FINAL JUDGMENT, INCLUDING PERMANENT INJUNCTION, AGAINST DEFENDANT ULTIMATE OFFPRICE, INC.
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B.
Consumers and/or purchasers of FOREVER 21’s clothing and related
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accessories have come to know and recognize Plaintiff’s FOREVER 21
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Trademarks, and Plaintiff has acquired a valuable reputation and goodwill among
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the public as result of such association, innovation, and substantial investment in its
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branding. Indeed, Forever 21 Trademarks are famous in the United States and
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abroad.
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C.
Defendant acknowledges and does not dispute FOREVER 21’s
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exclusive rights in and to the FOREVER 21 Trademarks, including the exclusive
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right to distribute products utilizing such Trademarks.
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D.
Defendant has willfully and intentionally distributed and sold clothing
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products bearing and/or utilizing one or more FOREVER 21 Trademarks without
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the authorization from Plaintiff.
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E.
Defendant acknowledges that its sale of the clothing products included
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the sale of products which displayed one or more FOREVER 21 Trademarks; that
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its activities were not authorized by Plaintiff; and that its conduct and activities are
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claimed by Plaintiff to constitute federal Trademark Infringement, False
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Designation of Origin, Dilution, state Trademark Dilution, and Unfair Business
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Practices under California law, and other violations of various state and federal
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statutory and common law.
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F.
Defendant
acknowledges
Plaintiff
claims
that
Defendant’s
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aforementioned conduct is a violation of this Court’s previous Preliminary
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Injunction Order entered by this Court on August 18, 2010.
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2.
MONETARY JUDGMENT. Plaintiff is entitled to a judgment in its
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favor and against Defendant in the sum of One Million Dollars ($1,000,000.00) on
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Plaintiff’s Complaint for Damages and Declaratory Relief.
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3.
PERMANENT INJUNCTION. The Court finds there is no reason
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for delay in entering this Permanent Injunction and, pursuant to Rule 54(a) of the
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Federal Rules of Civil Procedure, the Court directs immediate entry of this
[PROPOSED] FINAL JUDGMENT, INCLUDING PERMANENT INJUNCTION, AGAINST DEFENDANT ULTIMATE OFFPRICE, INC.
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Permanent Injunction against Defendant. Defendant and any person or entity acting
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in concert with, at direction of, or authorizing or assisting any third party engaging
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in, including any and all agents, servants, employees, partners, assignees,
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distributors, suppliers, resellers and any other parties or individuals over which
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Defendant may exercise control, is hereby restrained and permanently enjoined,
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pursuant to 15 U.S.C. §1116(a), from engaging in any of the following activities in
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the United States and throughout the world:
a.
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copying, manufacturing, exporting, marketing,
displaying,
selling, offering for sale, reproducing, brokering, consigning, shipping, licensing,
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developing, delivering,
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otherwise makes any use of, Plaintiff’s Forever 21 Trademarks, and/or any
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intellectual property that is confusingly or substantially similar to, or that
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constitutes a colorable imitation of Plaintiff’s Forever 21 Trademarks in connection
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with internet use, website, domain name, metatags, advertising, promotions,
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solicitations, commercial exploitation, television, web-based or any other program,
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or any product or service, or otherwise;
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or distributing any product or service that uses, or
performing or allowing others employed by or representing it, or
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under its control, to perform any act which is likely to injure Plaintiff’s rights in the
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Forever 21 Trademarks; and
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c.
engaging in any acts of federal and/or state trademark
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infringement, false designation, unfair competition, and dilution, which would
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damage or injure Plaintiff’s rights in its Forever21 Trademarks.
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4.
FOREFEITURE. Defendant is ordered to deliver immediately to
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counsel of record for Plaintiff for destruction all unauthorized products labels, tags,
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signs, prints, packages, wrappers, receptacles, and advertisements relating thereto in
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its possession or under its control bearing any of Plaintiff’s Forever 21 Trademarks
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or any simulation, reproduction, copy or colorable imitation thereof to the extent
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that any of these items are in Defendant’s possession or control.
[PROPOSED] FINAL JUDGMENT, INCLUDING PERMANENT INJUNCTION, AGAINST DEFENDANT ULTIMATE OFFPRICE, INC.
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SCOPE OF ENFORCEABILITY. This Final Judgment shall only
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apply to present claims of Plaintiff FOREVER 21, INC. to the date of execution by
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the Court, and does not include any future unknown claims that may arise
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thereafter.
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6.
NO APPEALS and CONTINUING JURISDICTION. No appeals
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shall be taken from this Final Judgment, Including Permanent Injunction, and the
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parties waive all rights to appeal. This Court expressly retains jurisdiction over this
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matter to enforce any violation of the terms of this Final Judgment, Including
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Permanent Injunction, herein.
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NO FEES and COSTS. Each party shall bear its own attorneys’ fees
and costs incurred in this matter.
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IT IS SO ORDERED, ADJUDICATED, and DECREED this 11th day of
October 2011.
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______________________________
Hon. Otis D. Wright,
United States District Judge for the Central
District of California
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[PROPOSED] FINAL JUDGMENT, INCLUDING PERMANENT INJUNCTION, AGAINST DEFENDANT ULTIMATE OFFPRICE, INC.
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