Pandora Jewelry, LLC v. Bello Paradiso, LLC

Filing 137

CONSENT JUDGMENT signed by Senior Judge Lawrence K. Karlton on 06/10/10. (Williams, D)

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HARVEY SISKIND LLP D. Peter Harvey (SBN: 55712) [e-mail] Matthew A. Stratton (SBN: 254080) [e-mail] 4 Embarcadero Center, 39th Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] William R. Hansen (admitted pro hac vice) [e-mail] Bridget A. Short (admitted pro hac vice) [e-mail] Bernadette Reilly (admitted pro hac vice) [e-mail] Thomas J. FitzGerald (admitted pro hac vice) [e-mail] Suzanna M. M. Morales (admitted pro hac vice) [e-mail] LATHROP & GAGE LLP 230 Park Avenue, Suite 1847 New York, NY 10169 Telephone: [phone] Fax: [phone] Attorneys for Plaintiff and Counterclaim Defendant PANDORA JEWELRY, LLC

John Shaeffer (State Bar No. 138331) [e-mail] Jeffrey Grant (State Bar No. 218974) [e-mail] LATHROP & GAGE LLP 1888 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: [phone] Fax: [phone]

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO OFFICE PANDORA JEWELRY, LLC, a Maryland limited liability company, Plaintiff, v. BELLO PARADISO, LLC, a California limited liability company, and DOES 1-50 Defendants. Case No. 2:08-cv-03108-LKK-DAD FINAL JUDGMENT ON CONSENT Hon. Lawrence K. Karlton

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FINAL JUDGMENT ON CONSENT

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The parties to this action having agreed upon a basis for resolving and settling the issues before this Court, it is hereby: ORDERED, ADJUDGED AND DECREED: 1. This Court has jurisdiction over the subject matter of this action and over the

parties hereto who have consented to entry of this judgment ("Consent Judgment"). 2. Plaintiff, Pandora Jewelry, LLC ("Pandora"), is the owner of the names and

trademarks PANDORA and PANDORA JEWELRY as well as United States Trademark Registration Numbers 3,065,374; 3,613,181; and 3,640,357 ("PANDORA Marks") on the Principal Register of the United States Patent and Trademark Office. 3. Pandora is the owner of certain copyrights under 17 U.S.C. §101 et. seq.,

including those copyrights covered by United States Copyright Registration Numbers VA1277239, VA1256757, VA1309509, VAu666696, VAu635370, VAu671813, VAu721105, VAu731716, VAu703104, VA1366322, VA1208549, VA1218723, VAu955044 and VAu955485 for PANDORA jewelry design and photographic works ("PANDORA Copyrights"). 4. Pandora has alleged that Bello Paradiso, LLC ("Bello Paradiso") has infringed the

PANDORA Marks and PANDORA Copyrights and that Defendant has unfairly competed with Pandora by using the PANDORA Marks in the marketing, advertising, distributing, offering for sale and sale of jewelry products. 5. This Court has dismissed with prejudice Bello Paradiso's Counterclaims for

violations of the Sherman Act under 15 U.S.C.§§ 1, 2 and California law and has awarded Pandora its attorneys' fees and costs under California's Anti-Slapp Statute, C.C.P. § 425.16 [DKT Nos. 46 and 52].

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6.

The parties have agreed upon settlement of this matter, including upon this

Consent Decree. 7. Bello Paradiso and its two principals and officers, Matt Davies and Molly

Thompson, both individuals residing in Stockton, California, hereby consent to the entry of a Final Judgment as set forth in the said Order pursuant to Fed. R. Civ. P. 54(b). Bello Paradiso, Matt Davies and Molly Thompson further waive any right to appeal to the entry of this FINAL JUDGMENT on consent. 8. Bello Paradiso, Matt Davies and Molly Thompson hereby expressly acknowledge

that the PANDORA Marks and PANDORA Copyrights are valid and enforceable. Nothing herein shall be construed as an admission of wrongdoing by Bello Paradiso, Matt Davies and Molly Thompson. 9. Bello Paradiso, Matt Davies and Molly Thompson hereby covenant not to

challenge, or assist any others directly or indirectly, to oppose, interfere, challenge, contest or take any other action against, on any basis, the validity or enforceability of the PANDORA Marks and PANDORA Copyrights. 10.
As provided in 15 U.S.C. §1114 and 17 U.S.C. § 502, from the day of entry of this

Final Judgment on Consent, Bello Paradiso, Molly Thompson, Matt Davies, any holding company, parent, subsidiary, affiliate, division, any other officer, director, shareholder, employee, manager, or supervisor of and any person acting in concert or participation with any of them, are hereby PERMANENTLY ENJOINED and RESTRAINED from: (a) any and all use of the PANDORA Marks and any and all names and marks

confusingly similar thereto; (b) any and all use of the PANDORA Copyrights;

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(c)

marketing, advertising, distributing, offering for sale and selling any

products under the PANDORA Marks; and (d) registering any domain name(s) which reference or contain the

PANDORA Marks or any confusingly similar variation thereof or to purchase key words or display the PANDORA Marks or any confusingly similar variation thereof in Sponsored Ads through any Internet Search Engine, including but not limited to Google, Yahoo! and MSN/Bing. 11. Bello Paradiso hereby undertakes and represents that all advertising, marketing

and promotional materials which reference and/or display the PANDORA Marks and/or PANDORA Copyrights have been removed from all websites and retail locations owned and/or operated by Bello Paradiso, Molly Thompson and/or Matt Davies and/or any holding company, parent, subsidiary, affiliate, division, any other officer, director, shareholder, employee, manager, or supervisor of and any person acting in concert or participation with any of them. 12. Bello Paradiso further undertakes and represents that all advertising, marketing

and promotional materials which reference and/or display the PANDORA Marks and/or PANDORA Copyrights have been destroyed and all images of the PANDORA Marks and/or PANDORA Copyrights have been removed from all web sites and retail locations owned or operated by Bello Paradiso, Matt Davies and/or Molly Thompson and/or any holding company, parent, subsidiary, affiliate, division, any other officer, director, shareholder, employee, manager, or supervisor of and any person acting in concert or participation with any of them. 13. Bello Paradiso, Matt Davies and Molly Thompson hereby undertake and represent

that all domain names currently registered to Bello Paradiso and/or Matt Davies and/or Molly Thompson which include the PANDORA Marks or any names and marks confusingly similar

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thereto will be transferred to Pandora at no cost to Bello Paradiso, Matt Davies or Molly Thompson within ten (10) business days of the entry of this Consent Decree. 14. Bello Paradiso, Matt Davies and Molly Thompson, along with all successors and

assigns of Bello Paradiso, hereby shall be subject to the jurisdiction of this Court. In the event of a breach or default of any term of this Consent Decree, this Court shall maintain jurisdiction over this action to decide any issues relating to such breach or default. If a violation is found to have occurred at any time, in addition to any fines, damages, and injunctive relief awarded by a Court, Pandora shall be entitled to an award of all costs and expenses, including attorneys' fees, arising out of the default or breach and paid or incurred by Pandora in enforcing and/or obtaining the full performance of this Consent Judgment. 15. This Final Judgment on Consent, entered pursuant to Fed. R. Civ. P. 54, is in full

settlement of all claims and defenses by and between the parties hereto with respect to each and every claim in Plaintiff's Complaint and counterclaims which were raised or could have been raised and shall constitute a final adjudication on the merits as to all damages claimed by Pandora and all defenses relating to the subject matter in the Complaint that were raised or could have been raised by Bello Paradiso. However, nothing in this Final Judgment on Consent waives Pandora's rights under federal law, state law, and common law, including but not limited to inter alia, preliminary injunctions, monetary sanctions and costs, and damages as provided under Titles 15 and 17 of the U.S. Code, should an action or motion be warranted by Bello Paradiso, Matt Davies and/or Molly Thompson's future conduct with respect to any acts prohibited by the terms of this Final Judgment on Consent. 16. Bello Paradiso, Matt Davies, Molly Thompson and Pandora each represents that,

before the execution of this Consent Judgment, it had the benefit of legal counsel of its selection, and that it executed this Consent Judgment only after consulting with such legal counsel.
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17.

Bello Paradiso, Matt Davies, Molly Thompson and Pandora expressly agree that

this Consent Judgment shall not be construed against any party on the ground that such party was responsible for the preparation of this Consent Judgment, or on any related ground. The language of this Consent Judgment shall be construed as a whole and according to its fair meaning. All terms contained herein shall be construed as singular, plural, masculine, feminine, or neuter, as context requires. "And," "or," and "and/or" shall be construed in the manner most restrictive on Bello Paradiso, Matt Davies and Molly Thompson.

Dated: Sacramento, California June 10, 2010

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The parties and their respective attorneys hereby consent to the entry of the foregoing judgment. FOR THE PLAINTIFF: Dated: Columbia, Maryland June 1, 2010 By: __________/s/___________________ John White for Pandora Jewelry, LLC

Dated: New York, New York June 1, 2010

By: __________/s/___________________ LATHROP & GAGE LLP William R. Hansen (WH-9446) 230 Park Avenue, Suite 1847 New York, New York 10168 [phone] Attorneys for Plaintiff Pandora Jewelry, LLC

FOR THE DEFENDANT: Dated: San Francisco, California June 2, 2010

By: __________/s/___________________ Bello Paradiso, LLC

FOR MATT DAVIES INDIVIDUALLY:

Dated: San Francisco, California June 2, 2010

By: __________/s/___________________ Matt Davies

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FOR MOLLY THOMPSON INDIVIDUALLY:

Dated: San Francisco, California June 2, 2010

By: __________/s/___________________ Molly Thompson

Dated: Los Angeles, California June 3, 2010

By: __________/s/___________________ Thomas Michael O'Leary, Esq. Ropers, Majeski, Kohn & Bentley 515 South Flower Street Suite 1100 Los Angeles, California 90071 Attorneys for Defendant Bello Paradiso, Matt Davies and Molly Thompson

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