American Automobile Association, Inc. v. HCM Brothers, Inc. et al

Filing 30

ORDER signed by Judge Garland E. Burrell, Jr. on 04/06/10 ORDERING that no later than 04/19/10, dfts shall comply fully with the 20 Permanent Injunction and CEASE all remaining unauthorized uses of AAAs trademarks, including but not limited to the uses demonstrated in Exhibit A attached to this Order. If dfts do not comply with this Order by 04/19/10, a bench warrant may issue for the immediate arrest of dft Fu Shen Hsiao. As a remedial sanction, dfts shall also pay to AAA the reasonable att orneys' fees and costs AAA incurred in enforcing the Permanent Injunction. The parties are ordered to appear for further hearing on this matter on 04/19/10 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell, Jr. AAA shall serve a copy of this Order on dfts by mail and shall also hand deliver a copy of this Order to the front desk of the Cedar Inn & Suites hotel by 04/12/10. (Benson, A.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On April 5, 2010, Plaintiff, The American Automobile Association, Inc. ("AAA"), appeared before the undersigned judge as required by the court's Order to Show Cause filed on February 12, 2010. Defendants did not appear. AAA stated that Defendants continue to use AAA's trademark without authorization in violation of the permanent injunction issued by the court on October 29, 2009 (the "Permanent Injunction"). Permanent Injunction enjoined Defendants from using, without authorization, any of AAA's trademarks and required that Defendants destroy any infringing term, logo and symbol. Although Defendants The THE AMERICAN AUTOMOBILE ASSOCIATION, INC., ) ) ) ) Plaintiff, ) ) v. ) ) HCM BROTHERS, INC. d/b/a CEDAR INN ) & SUITES, and FU SHEN HSIAO, ) ) Defendants. ) ) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

2:08-cv-02878 ORDER FINDING DEFENDANTS IN CONTEMPT OF COURT AND WARNING DEFENDANT FU SHEN HSIAO THAT IF HE DOES NOT COMPLY WITH THE COURT'S ORDER BY APRIL 19, 2010, A BENCH WARRANT FOR HIS ARREST MAY ISSUE

have apparently removed the AAA trademark from a display outside the 1

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Cedar Inn & Suites hotel and from some of its webpages, as of April 5, 2010, Defendants continue to use the AAA trademark on at least two webpages, which can be found at: http://www.cedarinntahoe.com/ski%20package.htm and http://www.cedarinntahoe.com/season_package.htm. Copies of these continued uses are attached to this Order as Exhibit A. To ensure compliance with the Permanent Injunction, AAA requested that the court issue a bench warrant for the arrest of Defendant Fu Shen Hsiao. AAA also requested that the court award it

the attorneys' fees and costs it has incurred to enforce the Permanent Injunction. After reviewing the papers submitted by AAA and oral argument, IT IS HEREBY ORDERED AS FOLLOWS: 1. Since AAA has shown by "clear and convincing evidence" that Defendants violated, and continue to violate, the Permanent Injunction, Defendants are held in contempt of court. See FTC v. Affordable Media, 179 F.3d 1228,

1239 (9th Cir. 1999) (articulating the "standard for finding a party in civil contempt"). 2. No later than April 19, 2010, Defendants shall comply fully with the Permanent Injunction and cease all remaining unauthorized uses of AAA's trademarks, including but not limited to the uses demonstrated in Exhibit A attached to this Order. 3. In the event that Defendants do not comply with this Order by April 19, 2010, a bench warrant may issue for the immediate arrest of Defendant Fu Shen Hsiao, requiring the United States Marshal Service to seize 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: 6. 5. 4.

him and place him in jail until he complies with the Permanent Injunction. As a remedial sanction, Defendants shall also pay to AAA the reasonable attorneys' fees and costs AAA incurred in enforcing the Permanent Injunction. See

Donovan v. Burlington Northern, Inc., 781 F.2d 680, 683 (9th Cir. 1986) (stating that "the trial court should have the discretion to analyze each contempt case individually and decide whether an award of fees and expenses is appropriate as a remedial measure" (quotation and citations omitted)). AAA shall file an

affidavit supporting its request for attorneys' fees so the court may determine the reasonableness of the sum requested. The parties are ordered to appear for further hearing on this matter on April 19, 2010 at 9:00 a.m. in Courtroom 10, located at 501 I Street in Sacramento, California. AAA shall serve a copy of this Order on Defendants by mail and shall also hand deliver a copy of this Order to the front desk of the Cedar Inn & Suites hotel, located at 890 Stateline Avenue in South Lake Tahoe, California, 96150, on or before April 12, 2010. April 6, 2010

GARLAND E. BURRELL, JR. United States District Judge

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