Drip More, LLC et al v. Cravinvapes LLC et al

Filing 26

STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL by Judge Percy Anderson, re Stipulation for Permanent Injunction #25 . Permanent Injunction. As of September 4, 2018, Hoosier along with their directors, principals, officers, agents, servants, employees, representatives, successors and assigns, and all those persons or entities acting in concert or participation with them, shall be and hereby are PERMANENTLY ENJOINED and restrained from, or ordered to take affirmative action, as follows: (see document for full details). Case Terminated. Made JS-6. (mrgo)

JS-6
1 HANSON BRIDGETT LLP
RAFFI VAHEH ZEROUNIAN, SBN 236388
2 [e-mail]
555 S. Flower Street, Suite 650
3 Los Angeles, California 90071
Telephone: [phone]
4 Facsimile: [phone]
5 HANSON BRIDGETT LLP
HOLLY R. HANKS, SBN 313143
6 [e-mail]
425 Market Street, 26th Floor
7 San Francisco, California 94105
Telephone: [phone]
8 Facsimile: [phone]
9 Attorneys for Plaintiffs DRIP MORE,
LLC and BRAIN BEREBER
10
Daniel Cotman (CBN 218315)
11 [e-mail]
Obi I. Iloputaife (CBN 192271)
12 [e-mail]
Jayson S. Sohi (CBN 293176)
13 [e-mail]
COTMAN IP LAW GROUP, PLC
14 35 Hugus Alley, Suite 210
Pasadena, CA 91103
15 [phone]/FAX: [phone]
Attorneys for Defendant Hoosier
16 Vapes, Inc.
17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA

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20

DRIP MORE, LLC and BRIAN
21 BEREBER,
Plaintiffs,

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23

v.

Case No. 5:18-cv-00766-PA-SHK
STIPULATED PERMANENT
INJUNCTION AND ORDER OF
DISMISSAL

24 CRAVINVAPES LLC; LICENSED
ELIQUID MANUFACTURING LLC;
25 and HOOSIER VAPES, INC.,
26

Defendants.

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28
14832954.1

Case No. 5:18-cv-00766-PA-SHK
[PROPOSED] STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1

Plaintiffs Drip More, LLC ("Drip More") and Brian Bereber ("Bereber")

2 (collectively, "Plaintiff" or "Drip More"), filed their Complaint against
3 Defendants CravinVapes LLC ("CravinVapes"), Licensed Eliquid
4 Manufacturing LLC ("Licensed Eliquid"), and Hoosier Vapes Inc. ("Hoosier")
5 (collectively, "Defendants") on April 16, 2018. The Complaint asserted
6 claims against Defendants for trademark infringement, trade dress
7 infringement, false designation of origin, unfair competition, and copyright
8 infringement under federal and California law.
9

Drip More and Hoosier have entered into an agreement settling their

10 dispute and hereby stipulate to the entry of this Stipulated Permanent
11 Injunction and Order of Dismissal, the latter pursuant to Fed. R. Civ. P.
12 41(a)(2).
13

NOW THEREFORE, Drip More and Hoosier hereby stipulate and

14 agree as follows:
15

1.

This Court has subject matter jurisdiction under 15 U.S.C. §

16 1121 and 28 U.S.C. §§ 1331, 1332, 1338 and 1367, as the claims arise in
17 part under the Lanham Act, 15 U.S.C. § 1051, et seq. This Court has
18 supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. §§
19 1332, 1338(b), and 1367. This Court has personal jurisdiction over the
20 parties hereto. Venue is proper in this District under 28 U.S.C. §1391(b)-(c).
21

2.

Drip More is the owner of the entire right, title and interest in and

22 to the trademark CANDY KING and numerous KING-based trademarks in
23 connection with the manufacture, promotion and sale of electronic cigarette
24 liquid (e-liquid), including but not limited to U.S. Trademark Registration Nos.
25 5,426,943 and 5,418,220, and U.S. Trademark Application Nos. 87-584,724;
26 87-584,691; 87-584,718; and 87-609,250, as well as common law rights in
27 the trademarks BATCH, WORMS, and SOUR WORMS (collectively the
28 “KING Marks”).
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Case No. 5:18-cv-00766-PA-SHK
-2STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1

3.

Drip More is also the owner of its distinctive crown logo, which it

2 uses both as a design element in the "A" in CANDY, and, more prominently,
3 as a feature of the CANDY KING mark ("King Logo Marks"). Typical of the
4 King Logo Marks is the following appearing in Drip More's CANDY KING
5 mark, U.S. Registration No. 5,418,220:
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7
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4.

Drip More owns the inherently distinctive trade dress that

11 incorporates the King Logo Marks, a colorful stylized background, and a
12 product mark under the CANDY KING mark (“Batch and Worm Trade
13 Dress”). Representative images illustrating certain aspects of the trade dress
14 of Drip More's well known and distinctive e-liquid bottles are shown below:
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24

5.

The KING Marks, the King Logo Marks, and the Batch and Worm

25 Trade Dress are collectively referred to as the "Candy King Marks." The
26 Candy King Marks include the registrations and applications listed in Exhibit
27 A. In addition to Drip More's trademarks discussed above, Drip More uses
28 distinctive label for its products, including but not limited to the label art
14832954.1

Case No. 5:18-cv-00766-PA-SHK
-3STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1 featured below for its SOUR WORMS label and its BATCH label, as shown
2 in Paragraph 4 (("Batch and Sour Worms Copyrights") (the Candy King
3 Marks and the Batch and Sour Worms Copyrights shall be referred to
4 hereinafter collectively as the "Candy King IP")). Drip More also owns
5 copyright registration number VA0002117575 and application number
6 TX0008561521 for the artwork for these labels.
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15

6.

More commenced use of the Candy King IP, Hoosier began

16 using: i) the marks CLONE KING, PATCH, and SOUR WIGGLERS
17 (collectively the "CLONE KING Marks"); and ii) product labels and
18 promotional and advertising materials featuring the artwork and illustrations
19 appearing below (the "Clone King Labels"):
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14832954.1

7.

Hoosier has agreed to cease all use of the CLONE KING Marks,
Case No. 5:18-cv-00766-PA-SHK
-4STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1 Clone King Labels, and anything confusingly similar to the Candy King IP on
2 or prior to September 4, 2018.
3

8.

Permanent Injunction. As of September 4, 2018, Hoosier along

4 with their directors, principals, officers, agents, servants, employees,
5 representatives, successors and assigns, and all those persons or entities
6 acting in concert or participation with them, shall be and hereby are
7 PERMANENTLY ENJOINED and restrained from, or ordered to take
8 affirmative action, as follows:
9

a.

Cease using the CLONE KING Marks, the Clone King

10

Labels, the Candy King IP, the KING Marks, or any other KING-based

11

trademarks, including but not limited to anything that it is the phonetic

12

equivalent or variant of KING (collectively the "Infringing KING IP") in

13

any way, including but not limited to: as any part of a trade name,

14

trademark, service mark, logo, product label, advertising and

15

promotional materials, domain name, URL, e-mail address or

16

otherwise; on the Internet including but not limited to such use in meta

17

tags, links, key words, AdWords, and other means affecting Internet

18

search engines and Internet search engine results; websites, online

19

videos, or any other marketing, promotional, or advertising materials or

20

media.

21

b.

Destroy (or delete or remove where appropriate) anything

22

that references or includes any Infringing KING IP, including but not

23

limited to the CLONE KING Marks, the Clone King Labels, the Candy

24

King IP, the KING Marks, or any other KING-based trademarks,

25

including but not limited to anything that it is the phonetic equivalent or

26

variant of KING;

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14832954.1

c.

Cease using, in any way, and remove all content from, and

disable any URL forwarding from, any domain name that includes any
Case No. 5:18-cv-00766-PA-SHK
-5STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1

Infringing KING IP, including but not limited to the CLONE KING

2

Marks, the Candy King Marks, the KING Marks, or any other KING-

3

based trademarks, including but not limited to anything that it is the

4

phonetic equivalent or variant of KING, and let such domain name(s)

5

lapse when they are currently due to expire.
d.

6

Provide Drip More with written confirmation of the

7

permanent discontinuation of use of any Infringing KING IP, including

8

but not limited to the CLONE KING Marks, the Clone King Labels, the

9

Candy King IP, the KING Marks, or any other KING-based trademarks,

10

including but not limited to anything that it is the phonetic equivalent or

11

variant of KING by having Joseph Stowers, an officer of Hoosier

12

Vapes, Inc., sign under oath a letter substantially in the form attached

13

to the Parties' settlement agreement, and delivering it to Drip More no

14

later than September 17, 2018.
e.

15

Make a payment from Hoosier to Drip More in the amount

16

and manner specified in Drip More and Hoosier’s settlement

17

agreement.

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f.

Cease otherwise infringing Drip More's Candy King IP.

19

g.

Not challenge or otherwise object to use or registration of

20

the Candy King Marks, or any other trademark featuring the KING

21

letter string, by Drip More or any of its affiliated companies or

22

individuals either in proceedings before the United States Patent and

23

Trademark Office, or in any court or other legal forum, or assist any

24

third party in doing so.

25

9.

Pursuant to 15 U.S.C. § 1118, Hoosier must deliver up for

26 destruction, or show proof of said destruction or sufficient modification to
27 eliminate all articles, packages, wrappers, products, displays, labels, signs,
28 circulars, kits, packaging, letterheads, business cards, literature, materials,
14832954.1

Case No. 5:18-cv-00766-PA-SHK
-6STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1 receptacles and any other matter in the possession, custody, or under the
2 control of Hoosier or its agents or distributors bearing any Infringing KING
3 IP, including the Candy King IP, in any form or manner whatsoever, or any
4 mark that is confusingly similar to or a colorable imitation of the Candy King
5 IP, both alone and in combination with other words or terms, and all plates,
6 molds, matrices, and other means of making the same, on or prior to
7 September 17, 2018.
8

10.

Hoosier, pursuant to section 34(a) of the Lanham Act, 15 U.S.C.

9 § 1116(a), must serve upon Drip More on or prior to September 17, 2018, a
10 report in writing under oath setting forth in detail the manner and form in
11 which Hoosier has complied with the terms of this Order and implemented
12 adequate and effective means to either discontinue doing business and/or
13 discontinue offering or selling goods or services bearing the Infringing KING
14 IP, including the Candy King IP. In the event that Hoosier fails to file such a
15 report with the Court on or prior to September 17, 2018, Drip More agrees to
16 provide written notice to Hoosier that it is in violation of this Stipulated
17 Injunction. If Hoosier fails to cure the violation and files and serves the report
18 described herein within ten (10) days of receiving such notice (time being of
19 the essence), Drip More may notify the court, and Hoosier shall be liable for
20 and pay to Drip More its reasonable attorneys’ fees in connection with the
21 enforcement by the Court of this Stipulated Injunction.
22

11.

Each party shall pay its own attorneys’ fees and costs that have

23 accrued on or before the execution of this Stipulated Injunction.
24

12.

If Hoosier breaches any term of this Stipulated Injunction,

25 Hoosier shall be liable for and pay to Drip More its reasonable attorneys’
26 fees in connection with any future enforcement by the Court of this
27 Stipulated Injunction.
28
14832954.1

13.

Nothing in this Stipulated Permanent Injunction and Order of
Case No. 5:18-cv-00766-PA-SHK
-7STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1 Dismissal precludes Drip More from asserting any claims or rights that arise
2 solely after entry of this Stipulated Permanent Injunction and Order of
3 Dismissal or that are based upon any breach of, or the inaccuracy of, any
4 representation or warranty made by Drip More in this Stipulated Permanent
5 Injunction and Order of Dismissal or the settlement agreement reached by
6 Drip More and Hoosier.
7

14.

This Stipulated Permanent Injunction and Order of Dismissal is

8 final and may not be appealed by either party.
9

15.

This Stipulated Permanent Injunction applies to and binds all

10 parties who are in active concert or participation with Hoosier as provided in
11 Rule 65(d) of the Federal Rules of Civil Procedure. Hoosier waives any
12 objection under Rule 65(d) of the Federal Rules of Civil Procedure.
13

16.

This Stipulated Permanent Injunction and Order of Dismissal

14 shall bind Hoosier Vapes and its corporate affiliates, successors, assignees,
15 officers, directors, employees, agents, servants, representatives, and
16 shareholders.
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14832954.1

Case No. 5:18-cv-00766-PA-SHK
-8STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1

17.

Drip More’s claims against Hoosier are hereby dismissed with

2 prejudice and without costs to either party.
3
4
5
6 DATED: Sept. 10, 2018
7

HANSON BRIDGETT LLP
By:

8
9
10

/s/ Raffi V. Zerounian/
RAFFI VAHEH ZEROUNIAN
HOLLY R. HANKS
Attorneys for Plaintiffs DRIP MORE,
LLC and BRAIN BEREBER

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12
13
14
15
16

DATED: Sept. 10, 2018

COTMAN IP LAW GROUP, PLC
By:

/s/ Jayson S. Sohi
JAYSON S. SOHI
Attorney for Defendant HOOSIER
VAPES, INC.

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18

September
SO ORDERED this _____ day of _______________, 2018.
12th

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20

____________________________________
21 UNITED STATES DISTRICT COURT JUDGE
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14832954.1

Case No. 5:18-cv-00766-PA-SHK
-9STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

Exhibit A

1
2
3

Reg. No.
/Serial No.

Goods and Services

5,418,220

Mark

IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette
cartridges.

4
5
6
7

(CANDY KING
logo)

8
9

87553,234

CAKE KING

87584,691

COFFEE KING

87584,710

COOKIE KING

10

CANDY KING

87584,718

CREAM KING

87584,724

DESSERT
KING

87584,741

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12
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28
14832954.1

IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette
cartridges.
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical

Case No. 5:18-cv-00766-PA-SHK
-10STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1
2
3

DONUT KING

87584,747

ICE CREAM
KING

87585,114

ICE KING

87585,115

JUICE KING

87585,117

LIQUID KING

87585,119

MENTHOL
KING

87585,123

MUFFIN KING

87585,126

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5
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14832954.1

87780,776
SALT KING

flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)

Case No. 5:18-cv-00766-PA-SHK
-11STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL

1
2
3
4

SLURPY KING

87585,135

SOUR KING

87585,138

SWEET KING

87585,140

TOFFEE KING

87585,142

YOGURT
KING

87585,146

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10
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comprised of vegetable glycerin; Bottles filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette
cartridges.
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges
IC 034: Electronic cigarette liquid (e-liquid) comprised of
flavorings in liquid form, other than essential oils, used to refill
electronic cigarette cartridges; Electronic cigarette liquid (e-liquid)
comprised of propylene glycol; Electronic cigarette liquid (e-liquid)
comprised of vegetable glycerin; Containers filled with chemical
flavorings in liquid form for electronic cigarettes; Chemical
flavorings in liquid form used to refill electronic cigarette cartridges

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Case No. 5:18-cv-00766-PA-SHK
-12STIPULATED PERMANENT INJUNCTION AND ORDER OF DISMISSAL