Sid Dickens Inc v. Rodney F Decker et al

Filing 17

CONSENT JUDGMENT and PERMANENT INJUNCTION by Judge Dale S. Fischer in favor of Sid Dickens Inc against Lori Pamela Gelbart, Rodney F Decker Related to: Stipulation for Judgment and Permanent Injunction 16 . (rne)

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1 2 3 4 5 6 7 DAVID A. DILLARD, CA Bar No. 97515 david.dillard@cph.com G. WARREN BLEEKER, CA Bar No. 210834 warren.bleeker@cph.com CHRISTIE, PARKER & HALE, LLP 655 N. Central Avenue, Suite 2300 Post Office Box 29001 Glendale, California 91209-9001 Telephone: (626) 795-9900 Facsimile: (626) 577-8800 Attorneys for Plaintiff, SID DICKENS, INC. 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 SID DICKENS, INC. Case No. CV12-07682 DSF (SSx) 13 Plaintiff, [CONSENT JUDGMENT AND PERMANENT INJUNCTION NOTE CHANGE BY COURT 14 15 16 17 18 vs. RODNEY F. DECKER, an individual, LAUREN P. GELBART an individual, and PAMELA JOY POLLAK, an individual, Defendants. 19 20 21 22 23 24 25 26 27 28 -1CHRISTIE, PARKER & HALE, LLP 1 Based upon the stipulation of Plaintiff Sid Dickens, Inc. (“SDI”) and 2 Defendants Rodney F. Decker (“Decker”) and Lori P. Gelbart, sued erroneously 3 as Lauren P. Gelbart (“Gelbart”), and for good cause showing, JUDGMENT IS 4 ENTERED AS FOLLOWS as to all claims asserted by SDI in this action against 5 Decker and Gelbart: 6 7 1. This Court has jurisdiction over SDI, Decker and Gelbart and of the subject matter of this action. 8 2. Venue is proper in this judicial district. 9 3. SDI is the owner of the following valid and enforceable United 10 States Trademark Registrations: 11 Registration No. 3,573,161 Mark SID DICKENS Goods Tiles, namely artistic wall tiles primarily of plaster, clay, gypsum, glass, ceramic or earthenware. 4,088,345 MEMORY BLOCK Tiles, namely artistic wall tiles. 12 13 14 15 16 4. SDI owns existing common law trademark rights in the mark: 17 18 19 This mark and the marks identified in SDI’s U.S. Trademark Registrations are 20 referred to as “SDI Marks” for purposes of this Consent Judgment. 21 5. SDI owns trade dress rights in the overall look of its collectible wall 22 plaques (“Memory Blocks”) including the size, shape, designs, and relative 23 dimensions of the various components or features that contribute to the overall 24 appearance. These trade dress rights are referred to as “SDI Trade Dress” for 25 purposes of this Consent Judgment. 26 27 6. The SDI Marks and SDI Trade Dress are distinctive, either by virtue of being inherently distinct or through the acquisition of secondary meaning. The 28 -2CHRISTIE, PARKER & HALE, LLP 1 SDI Trade Dress is distinctive because it has acquired secondary meaning and is 2 nonfunctional. 3 7. The SDI Marks and SDI Trade Dress are conclusively determined to 4 be valid and enforceable against Gelbart and Decker for as long as SDI and 5 anyone in privity with SDI owns the SDI Marks, or SDI Trade Dress, even if a 6 subsequent infringement action is brought by SDI, or by any entity in privity with 7 it, against Gelbart and/or Decker for a product not identified in this action; 8 8. Gelbart and Decker admit they participated in Defendant Pamela 9 Pollack’s sales of products which they later found out contained marks that are 10 identical or confusingly similar to the SDI Marks and trade dress that is identical 11 or confusingly similar to the SDI Trade Dress, in this District and elsewhere. 12 Gelbart and Decker further admit that their participation in the sale of products 13 with marks that are identical or confusingly similar to the SDI Marks and trade 14 dress that is identical or confusingly similar to the SDI Trade Dress, alone or in 15 combination with other words and other items, is likely to cause confusion that 16 accused goods and services emanate from or are sponsored or authorized by SDI. 17 9. Gelbart and Decker are precluded from contesting the validity, 18 ownership or rights in the SDI Marks or SDI Trade Dress in any future litigation 19 or dispute. 20 10. Gelbart, Decker and all other persons, firms or entities acting in 21 concert or participating with one or both of them, are hereby permanently 22 enjoined, directly or indirectly, from: 23 a. using any of the SDI Marks or any marks confusingly similar 24 thereto, or any colorable imitation thereof, in connection with 25 the marketing, promotion, advertising, offer for sale, or sale 26 of any products; 27 b. using any simulation, reproduction, counterfeit, copy, or 28 colorable imitation of SDI Trade Dress in connection with the -3- CHRISTIE, PARKER & HALE, LLP 1 offer for sale or sale of wall plaques; 2 c. engaging in any other activity constituting an infringement of 3 any of the SDI Marks or SDI Trade Dress or constituting any 4 infringement of SDI’s rights in or right to use or exploit the 5 SDI Marks or SDI Trade Dress; 6 d. using any false designation of origin or false description 7 which can or is likely to lead the public, or individual 8 members thereof, erroneously to believe that any product or 9 service was or is circulated, displayed, distributed, offered for 10 sale, sold, manufactured, licensed, sponsored, approved, or 11 authorized by or for SDI, when such is not true in fact; and 12 e. inducing, assisting, aiding, or abetting any other person or 13 business entity in engaging in or performing any of the 14 activities referred to in subparagraphs 10(a) through 10(d) 15 above. 16 11. Gelbart and Decker each represent that each, respectively, has not 17 been and is not in possession, custody or control of any goods, machinery or other 18 instruments used to manufacture or create any goods, advertising, promotional or 19 marketing materials that contain, utilize or embody any of SDI Marks or SDI 20 Trade Dress. 21 12. Gelbart agrees that if SDI believes that Gelbart has violated this 22 Consent Judgment in any way, SDI may bring an action against Gelbart for at 23 least trademark and trade dress infringement and for breach of contract, and 24 Gelbart consents to the filing of such an action in this District. 25 13. Decker agrees that if SDI believes that Decker has violated this 26 Consent Judgment in any way, SDI may bring an action against Decker for at 27 least trademark and trade dress infringement and for breach of contract, and 28 Decker consents to the filing of such an action in this District. -4- CHRISTIE, PARKER & HALE, LLP 1 14. Gelbart agrees to provide truthful declarations, information and 2 testimony in this matter in support of SDI’s remaining claims upon the receipt of 3 reasonable requests for such by SDI and/or its counsel. 4 15. Decker agrees to provide truthful declarations, information and 5 testimony in this matter in support of SDI’s remaining claims upon the receipt of 6 reasonable requests for such by SDI and/or its counsel. 7 16. Gelbart and Decker waive notice of entry of this Consent Judgment 8 and Permanent Injunction and waive the right to appeal therefrom or to test its 9 validity, and SDI, Gelbart and Decker consent to its immediate entry in 10 accordance with its terms. This Court shall retain jurisdiction over the parties 11 concerning enforcement of this Consent Judgment and Permanent Injunction. 12 13 14 15 16 17. Judgment shall be entered in favor of SDI and against Gelbart and Decker. 18. The parties shall bear their own costs, including attorneys’ fees, incurred with this action. 19. This Court shall retain jurisdiction concerning enforcement of this 17 Consent Judgment and Permanent Injunction. 18 IT IS SO ORDERED. 19 20 12/18/12 Dated: ______________________ _____________________________ United States District Court Judge 21 22 23 24 25 26 27 28 -5CHRISTIE, PARKER & HALE, LLP

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