CytoSport, Inc. v. Vital Pharmaceuticals, Inc.

Filing 231

STIPULATION and ORDER DISMISSING CASE signed by Judge John A. Mendez on 9/28/12. Any and all motions that remain pending on the docket for this action are hereby denied as moot. CASE CLOSED. (Manzer, C)

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1 2 3 4 5 6 7 GIBSON, DUNN & CRUTCHER LLP G. CHARLES NIERLICH, SBN 196611 HOWARD S. HOGAN, pro hac vice JOSHUA A. JESSEN, SBN 222831 555 Mission Street, Suite 3000 San Francisco, CA 94105-2933 Telephone: 415.393.8200 Facsimile: 415.393.8306 gnierlich@gibsondunn.com hhogan@gibsondunn.com jjessen@gibsondunn.com KING PARRET & DROSTE LLP ALAN J. DROSTE, SBN 105616 450 Newport Center Drive, Suite 500 Newport Beach, CA 92660 Telephone: 949.644.3484 Facsimile: 949.644.3993 adroste@kpdlex.com Attorneys for Plaintiff CYTOSPORT, INC. Attorneys for Defendant VITAL PHARMACEUTICALS, INC. [Additional counsel on signature pages] 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 SACRAMENTO DIVISION 12 13 CASE NO. 2:08-CV-02632-JAM-GGH CYTOSPORT, INC., a California corporation, 14 15 16 17 18 AGREED STIPULATION AND ORDER OF DISMISSAL Plaintiff, v. VITAL PHARMACEUTICALS, Florida Corporation, INC., a Defendant. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 1 AGREED STIPULATION AND [PROPOSED] ORDER OF DISMISSAL, CASE NO. 2:08-CV-02632-JAM-GGH 1 2 3 4 5 6 7 8 This matter is before the Court on the joint application of plaintiff CytoSport, Inc. (“CytoSport”) and Defendant Vital Pharmaceuticals, Inc. (“VPX”) (collectively, “the Parties”). WHEREAS, Plaintiff commenced the above-captioned civil action on or about November 4, 2008 and filed a Third Amended Complaint on or about December 7, 2009; WHEREAS, Defendant filed an answer and counterclaims against CytoSport that were deemed filed as of December 22, 2009; WHEREAS, the Parties have entered into a confidential settlement agreement in which they have agreed to resolve the dispute giving rise to this action; and 9 WHEREAS, without admitting any factual or legal allegation, claim alleged, or defense 10 asserted, the Parties have consented to the entry of this dismissal order pursuant to Rule 41(a)(2) of 11 the Federal Rules of Civil Procedure with prejudice. 12 Therefore, it is hereby ORDERED that: 13 (a) 14 15 All claims asserted by Plaintiff against Defendant and all counterclaims asserted by Defendant against Plaintiff are hereby dismissed with prejudice; (b) The preliminary injunction entered by this Court on May 6, 2009 and affirmed by 16 order of the United States Court of Appeals for the Ninth Circuit dated September 14, 2009 and filed 17 October 13, 2009 is hereby converted into a permanent injunction and the terms of the injunction set 18 forth therein shall remain permanently in effect pursuant to 15 U.S.C. § 1116 except that CytoSport is 19 hereby relieved of its obligation to post a security under Rule 65(c) of the Federal Rules of Civil 20 Procedure. The Surety Bond in the amount of $500,000.00 received by attorney-in-fact Sheryl 21 Smith/American Contractors Indemnity Company and recorded as Docket No. 78 is accordingly 22 hereby discharged and exonerated. 23 (c) As set forth in the confidential settlement agreement between the Parties, VPX 24 surrenders and abandons all statutory and common law rights in the marks “Muscle Power” (Reg. 25 Nos. 3,551,076 and 3,547,541) and “I Am Muscle Power” (Serial No. 77/679,693), along with any 26 and all of the goodwill associated with and represented and symbolized by such marks. The Court 27 hereby orders the cancellation of Reg. Nos. 3,551,076 and 3,547,541 and certifies such order to the 28 Director of the United States Patent and Trademark Office “who shall make appropriate entry upon Gibson, Dunn & Crutcher LLP 2 AGREED STIPULATION AND [PROPOSED] ORDER OF DISMISSAL, CASE NO. 2:08-CV-02632-JAM-GGH 1 the records of the Patent and Trademark Office and shall be controlled thereby,” pursuant to 15 2 U.S.C. § 1119; 3 (d) As set forth in the confidential settlement agreement between the Parties, VPX 4 withdraws its petitions to cancel CytoSport’s registrations for the “Muscle Milk” and “Muscle Milk 5 Light” marks, Petition for Cancellation Nos. 92051604, 92051605, 92051607 and 92051697 before 6 the Trademark Trial and Appeal Board of the United States Patent and Trademark Office; 7 8 (e) Each of the Parties shall bear its own costs, expenses and attorneys’ fees associated with the prosecution and defense of this action; 9 (f) 10 denied as moot; 11 /// 12 /// 13 /// Any and all motions that remain pending on the docket for this action are hereby 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 3 AGREED STIPULATION AND [PROPOSED] ORDER OF DISMISSAL, CASE NO. 2:08-CV-02632-JAM-GGH 1 (g) This Court shall retain subject matter jurisdiction over this matter for purposes of 2 enforcement of this order and the Parties’ settlement of this action, and the Parties hereby expressly 3 consent to the exclusive personal jurisdiction of this Court with respect to any action arising from or 4 related to this Settlement Agreement; and 5 6 (h) The Clerk of the Court is directed to close the above-captioned action. DATED: September 27, 2012 7 8 9 GIBSON, DUNN & CRUTCHER LLP G. CHARLES NIERLICH HOWARD S. HOGAN JOSHUA A. JESSEN KING, PARRET & DROSTE LLP ALAN J. DROSTE By: /s/ G. Charles Nierlich G. Charles Nierlich By: /s/ Alan J. Droste Alan J. Droste Attorneys for Plaintiff CYTOSPORT, INC. Attorneys for Defendant VITAL PHARMACEUTICALS, INC. VITAL PHARMACEUTICALS, INC. KALINA PAGANO VICTORIA GODWIN 10 11 12 13 14 15 16 17 IT IS SO ORDERED. 18 19 20 Dated: 9/28/2012 /s/ John A. Mendez____________________ U. S. DISTRICT COURT JUDGE 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 4 AGREED STIPULATION AND [PROPOSED] ORDER OF DISMISSAL, CASE NO. 2:08-CV-02632-JAM-GGH

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