Summit Entertainment LLC v. Preferred Fragrance et al

Filing 50

STIPULATED JUDGMENT AND PERMANENT INJUNCTION AS TO DEFENDANT FRAGRANCE ACQUISITIONS, LLC by Judge Christina A. Snyder: Judgment shall be entered to fully and finally dispose of this action as to Defendant Fragrance Acquisitions, LLC. THE COURT HEREBY ORDERS, ADJUDGES, AND DECREES that Defendant Fragrance Acquisitions, LLC and its past and present officers, directors, servants, employees, representatives, successors, assigns, attorneys and agents, and all persons in active concert or participatio n with Fragrance Acquisitions hereby agree to permanently refrain from manufacturing, etc. as to any goods or service under any of the TWILIGHT and NEW MOON Marks, etc. Each party shall bear its own attorneys' fees and costs arising out of, related to, or incurred in this action, except as provided in the Agreement. See document for details. (gk)

1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
JILL M. PIETRINI (Cal. Bar No. 138335)
[e-mail]
2
PAUL A. BOST (Cal. Bar No. 261531)
[e-mail]
3
1901 Avenue of the Stars, Suite 1600
4 Los Angeles, California 90067-6017
Telephone: [phone]
5 Facsimile: [phone]
6 Attorneys for Plaintiff
SUMMIT ENTERTAINMENT, LLC
7
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

9
10

11 SUMMIT ENTERTAINMENT, LLC,
12 a Delaware limited liability company,
Plaintiff,
13

Case No. 2:13-cv-04310-CAS-AJW
STIPULATED JUDGMENT AND
PERMANENT INJUNCTION AS TO
DEFENDANT FRAGRANCE
ACQUISITIONS, LLC

v.

14
15 PREFERRED FRAGRANCE, INC., a
New York Corporation, FRAGRANCE
16 ACQUISITIONS, LLC, a Delaware
limited liability company, EZRIEL
17 POLATSEK, an individual, and
DOES 1-10, inclusive,
18
Defendants.
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20

IT IS HEREBY STIPULATED by and between plaintiff Summit

21 Entertainment, LLC (“Summit”) and defendant Fragrance Acquisitions, LLC
22 (“Fragrance Acquisitions”) that a Judgment shall be entered to fully and finally
23 dispose of this action as to Fragrance Acquisitions, and that the Judgment be entered
24 against Fragrance Acquisitions as follows:
25

WHEREAS, Summit is the producer and distributor of the motion picture

26 Twilight and its sequels The Twilight Saga: New Moon, The Twilight Saga:
27 Eclipse, The Twilight Saga: Breaking Dawn – Part 1, and The Twilight Saga:
28 Breaking Dawn – Part 2 (collectively, the “Twilight Motion Pictures”);
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1

WHEREAS, Summit is the owner of all right, title, and interest in certain

2 intellectual property rights – including trademarks, copyrights, and trade dress rights
3 – related to and/or derived from the Twilight Motion Pictures (the “Twilight
4 Intellectual Property”), including the federally registered TWILIGHT, stylized
5 TWILIGHT (as depicted immediately below), and NEW MOON trademarks used
6 on and/or in conjunction with a variety of goods and services (the “TWILIGHT and
7 NEW MOON Marks”), as well as other trademarks, copyrights, and protectable
8 trade dress:
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12

WHEREAS, on December 4, 2013, the Court deemed filed Summit’s First

13 Amended Complaint [Docket No. 28], through which Summit added Fragrance
14 Acquisitions as a defendant and sought damages and injunctive relief against
15 Fragrance Acquisitions for false designation of origin, trademark infringement,
16 trademark dilution, and unfair competition. Summit alleged that Fragrance
17 Acquisitions’ sale of eau de parfum and related products under the MOONLIGHT
18 trademark infringed Summit’s rights in the TWILIGHT and NEW MOON Marks;
19

WHEREAS, Fragrance Acquisitions denies all wrongdoing alleged by

20 Summit in the First Amended Complaint;
21

WHEREAS, Summit and Fragrance Acquisitions, without any admission of

22 liability on the part of Fragrance Acquisitions, have entered into a Confidential
23 Settlement Agreement dated February 3, 2014 (the “Agreement”) with the mutual
24 intention of resolving all disputes between them which arise from the allegations of
25 the First Amended Complaint; and
26

WHEREAS, this Court has jurisdiction over the subject matter of this

27 controversy pursuant to 15 U.S.C. § 1121(a) , 28 U.S.C. § 1331, 28 U.S.C.
28 § 1338(a), and 28 U.S.C. § 1338(b);
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1

THE COURT HEREBY ORDERS, ADJUDGES, AND DECREES:

2

1.

Permanent Injunction. Fragrance Acquisitions and, as applicable, its

3 past and present officers, directors, servants, employees, representatives, successors,
4 assigns, attorneys and agents, and all persons in active concert or participation with
5 Fragrance Acquisitions or with any of the foregoing, hereby agree to permanently
6 refrain from:
7

(a)

Manufacturing, transporting, promoting, importing, advertising,

8 marketing, publicizing, distributing, displaying, offering for sale or selling any good
9 or service under any of the TWILIGHT and NEW MOON Marks or any other mark,
10 name, symbol, design, logo, image, or trade dress that is likely to cause confusion or
11 to cause mistake or to deceive persons into the erroneous belief that any goods or
12 services that Fragrance Acquisitions caused to enter the stream of commerce are
13 sponsored, licensed, or authorized by Summit, or are connected, associated, or
14 affiliated with Summit or the Twilight Motion Pictures;
15

(b)

Manufacturing, transporting, promoting, importing, advertising,

16 marketing, publicizing, distributing, displaying, offering for sale or selling any good
17 or service under any of the TWILIGHT and NEW MOON Marks or any other mark,
18 name, symbol, design, or logo that is confusingly similar to or a reproduction,
19 counterfeit, copy, or colorable imitation of, or incorporates, the TWILIGHT and
20 NEW MOON Marks;
21

(c)

Implying Summit’s endorsement of any of Fragrance

22 Acquisitions’ commercial activities, Fragrance Acquisitions’ goods or services, or
23 Fragrance Acquisitions’ business, and representing that Summit has endorsed,
24 sponsored, licensed, or approved, or is affiliated or associated with, Fragrance
25 Acquisitions or Fragrance Acquisitions’ products or that Fragrance Acquisitions’
26 products are affiliated, associated, or connected with the Twilight Motion Pictures;
27

(d)

Seeking to register any of the TWILIGHT and NEW MOON

28 Marks or any other mark, name, symbol, design, logo, image, or trade dress which is
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1 likely to cause confusion or to cause mistake or to deceive persons into the
2 erroneous belief that the businesses, goods, or services of Fragrance Acquisitions
3 are sponsored or endorsed or authorized by Summit or are connected or affiliated in
4 some way with Summit or the Twilight Motion Pictures;
5

(e)

Engaging in any act which is likely to dilute the distinctive

6 quality of the TWILIGHT and NEW MOON Marks and/or injures Summit’s
7 business reputation; and
8

(f)

Knowingly assisting, inducing, aiding or abetting any person or

9 business entity in engaging in or performing any of the activities referred to in sub10 paragraphs (a) through (e), inclusive, above.
11

2.

No Admission of Liability. Fragrance Acquisitions does not admit

12 liability for or the validity of any of Summit’s claims alleged in the First Amended
13 Complaint, and this Judgment shall not be interpreted as an admission or a
14 determination of wrongful or unlawful conduct by Fragrance Acquisitions.
15

3.

Attorneys’ Fees and Costs. Each party shall bear its own attorneys’

16 fees and costs arising out of, related to, or incurred in this action, except as provided
17 in the Agreement.
18

4.

Violation of Judgment – Contempt of Court. In the event that any part

19 of this Judgment or the obligations set forth in Paragraphs 3 and 7 of the Agreement,
20 respectively, is violated by Fragrance Acquisitions, or by any of its present officers,
21 directors, agents, servants, employees, or representatives, or by any person in active
22 concert and participation with Fragrance Acquisitions that receives notice of this
23 Judgment, Summit may file and serve a motion for contempt seeking damages,
24 attorneys’ fees, expert witness fees, and/or other appropriate relief, and Fragrance
25 Acquisitions may oppose such motions as provided by law.
26

5.

Violation of Judgment -- Prevailing Party Fees and Costs. In an action

27 or proceeding based upon an allegation that a party has violated this Judgment, the
28 prevailing party shall be entitled to recover all of its reasonable attorneys’ fees,
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1 expert witness fees, and other costs incurred in connection with the action or
2 proceeding. This paragraph shall not be construed to limit any party’s rights,
3 remedies or procedural options.
4

6.

Binding Effect. This Judgment shall be binding upon and inure to the

5 benefit of the parties and all successors, assigns, officers, directors, members,
6 agents, and other persons who are in active concert or participation with anyone
7 described herein, who receive actual notice of this Judgment by personal service or
8 otherwise.
9

7.

Continuing Jurisdiction. This Court shall retain jurisdiction to enforce

10 this Judgment and the Agreement.
11

8.

No Territorial Limit. This Judgment shall be enforceable against

12 Fragrance Acquisitions for any acts of Fragrance Acquisitions that violate this
13 Judgment that occur inside and/or outside of the United States of America, except to
14 the extent heretofore released.
15

9.

Final Judgment. This Judgment is a final adjudication of all claims

16 alleged or which, limited to the sales reports disclosed by Fragrance Acquisitions to
17 Summit, could have been alleged by Summit in this action against Fragrance
18 Acquisitions, and the parties stipulate that they will not appeal this Judgment.
19

SO ORDERED.

20
21 Date: February 10, 2014

United States District Court Judge

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1 Approved as to content and form:
2 SUMMIT ENTERTAINMENT, LLC
Plaintiff
3
4 By:
5 Name:
Title:
6

/S/

Date:

2/5/14

Date:

2/3/14

7
8 FRAGRANCE ACQUISITIONS, LLC
Defendant
9
10 By:
11 Name:
Title:
12

/S/

13
14 Approved as to form:
15 SHEPPARD MULLIN RICHTER HAMPTON, LLP
16
17 By: Jill M./S/
Pietrini
Attorneys for Plaintiff
18
Summit Entertainment, LLC

Date:

2/6/14

Date:

2/4/14

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21

SCHWARTZ & THOMASHOWER, LLP

22 By:
/S/
William Thomashower
23
Attorneys for Defendant
Fragrance Acquisitions, LLC
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SMRH:415646939.5

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