Neurotech Forty, Inc. et al v. Biocybernaut Institute, Inc. et al

Filing 93

CONSENT JUDGMENT, PERMANENT INJUNCTION, AND ORDER OF DISMISSAL by Judge Fernando M. Olguin. Neurotech Forty, Inc., 40 Years, Inc. D/B/A 40 Years of Zen, and Dave Asprey and Defendants Biocybernaut Institute Inc., Biocybernaut Institute of Arizona, LLC, and James Hardt have agreed to enter into a final settlement agreement regarding this Litigation. *See Judgment for Details.* (iv)

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Paul A. Stewart (SBN 153,467)
[e-mail]
Ali S. Razai (SBN 246,922)
[e-mail]
Jared C. Bunker (SBN 246,946)
jared.bunker@knobbe,com
Nicole R. Townes (SBN 272,342)
[e-mail]
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street, Fourteenth Floor
Irvine, CA 92614
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs
NEUROTECH FORTY, INC.
40 YEARS, INC., and DAVE ASPREY

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THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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Plaintiffs,
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v.
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BIOCYBERNAUT INSTITUTE
INC., a California corporation, and )
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BIOCYBERNAUT INSTITUTE
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OF ARIZONA, LLC, an Arizona
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limited liability company, and
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JAMES HARDT, an individual,
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Defendants.
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NEUROTECH FORTY, INC., a
Canadian corporation, 40 YEARS,
INC. D/B/A 40 YEARS OF ZEN,
a Delaware corporation, and
DAVE ASPREY, an individual,

Civil Action No. 2:19-cv-09410-FMODFM
Hon. Fernando M. Olguin
CONSENT JUDGMENT,
PERMANENT INJUNCTION, AND
ORDER OF DISMISSAL

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Neurotech Forty, Inc., 40 Years, Inc. D/B/A 40 Years of Zen, and Dave

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Asprey (collectively “Plaintiffs”) and Defendants Biocybernaut Institute Inc.,

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Biocybernaut Institute of Arizona, LLC, and James Hardt (collectively

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“Defendants”) have agreed to enter into a final settlement agreement regarding

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this Litigation. The Parties hereby consent and agree to the terms and conditions

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of this Final Consent Judgment and Permanent Injunction.

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The Court, upon the consent and request of the parties, hereby

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acknowledges the following Consent Judgment and, upon due consideration,

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issues the following Order.

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

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1.

This Court has personal jurisdiction over each of the Parties to this

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action. The Court also has subject matter jurisdiction over this action pursuant to

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28 U.S.C. §§ 1331, 1338, and 1367(a). Venue is proper in this Judicial District

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pursuant to 28 U.S.C. § 1391(b).

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2.

Neurotech Forty, Inc. is a corporation organized and existing under

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the laws of Canada, having a principal place of business in Cobble Hill Victoria,

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British Columbia, Canada (“Neurotech”).

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3.

40 Years, Inc., doing business as 40 Years of Zen, is a Delaware

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corporation, having a principal place of business at 16527 74th Ave NE,

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Kenmore, Washington 98028 (“40 Years”).

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4.

Dave Asprey is an individual residing in British Columbia, Canada.

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5.

Biocybernaut Institute, Inc. is a California corporation, having a

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principal place of business at 395 Jordan Road, Sedona, Arizona 86336 (“BII”).
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Biocybernaut Institute of Arizona, LLC is an Arizona limited

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liability company, having a principal place of business at 395 Jordan Road,

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Sedona, Arizona 86336 (“BIA”).

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7.

James Hardt is an individual residing in Arizona.

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8.

Plaintiffs brought this action against Defendants for trademark
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infringement, false designation of origin, false advertising, misappropriation of

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right of publicity, and unfair competition (the “Litigation”).

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Plaintiffs asserted claims for the infringement of Neurotech’s U.S. Trademark

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Registration No. 5,007,452 for the mark 40 YEARS OF ZEN, as well as false

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designation of origin, false advertising, misappropriation of Asprey’s right of

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publicity, and unfair competition (“Claims”). Defendants answered Plaintiffs’

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complaint and asserted counterclaims against Plaintiffs for declaratory judgment

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of no false advertising, declaratory judgment of non-infringement of Neurotech’s

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U.S. Trademark Registration No. 5,007,452 for the mark 40 YEARS OF ZEN, as

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well as trademark infringement and false designation of origin, false advertising,

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and violation of the Defend Trade Secrets Act (“Counterclaims”).

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9.

In particular,

Defendants recognize and acknowledge Plaintiffs’ respective and

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exclusive trademark rights in the marks “DAVE ASPREY” and “40 YEARS OF

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ZEN” and recognize and acknowledge that those marks are valid and enforceable,

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and that U.S. Trademark Registration No. 5,007,452 is valid, enforceable, and

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owned by Neurotech.

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10.

Defendants and their parents, subsidiaries, affiliates, officers, agents,

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servants, employees, attorneys, and those persons in active concert or

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participation with any of them, who receive actual notice of this injunction by

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personal service or otherwise are permanently restrained and enjoined from:

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a. using the marks “DAVE ASPREY,” “40 YEARS OF ZEN,” “21

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to 40 Years of Zen,” and “BIOHACKED” (collectively “the

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Marks”) or any other marks confusingly similar thereto in any

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way, including but not limited to in connection with the

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manufacture, use, display, advertisement, marketing, promotion,

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sale, or offer for sale of any product or service, and from aiding

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or abetting in any way or inducing or contributing to the use or

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infringement of any of the Marks. For the avoidance of doubt,
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this includes the use of any of the Marks or any other marks

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confusingly similar thereto as part of Defendants’ website

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metadata, in Google Adwords, any other type of search engine

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optimization, any paid or unpaid social media postings, email

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campaigns, or any other marketing or advertising;
b. adopting, using, or seeking registration for the Marks or any other

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mark that is confusingly similar to any of the Marks; and

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c. disputing or contesting, directly or indirectly, Plaintiffs’

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exclusive rights and titles to the DAVE ASPREY or

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40 YEARS OF ZEN marks or the validity thereof in the courts or

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any administrative agency or body of the United States or any

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analogous institutions of foreign nations;

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11.

This is a final judgment against Defendants. All of the Parties’

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Claims, Counterclaims, and any and all remaining claims related to this

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Litigation, are dismissed with prejudice.

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12.

Each party shall bear its own fees, costs, and expenses.

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13.

The Clerk of the Court is directed to enter this Consent Judgment

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and Dismissal Order forthwith.

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Respectfully submitted,

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KNOBBE, MARTENS, OLSON & BEAR, LLP

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Dated: July 6, 2020

By: /s/ Ali S. Razai
Paul A. Stewart
Ali S. Razai
Jared C. Bunker
Nicole R. Townes
Attorneys for Plaintiffs

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THE DUBOFF LAW GROUP, PC

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Dated: July 6, 2020

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By: /s/ Leonard D. DuBoff
(with permission Ali S. Razai)
Leonard D. DuBoff
Edward Fu

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Attorneys for Defendants

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IT IS SO ORDERED

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Dated: July 6, 2020

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_________/s/_____________________
Hon. Fernando M. Olguin
United States District Judge

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33060012

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