Grocery Outlet Inc. v. Albertson's, Inc. et al

Filing 399

ORDER GRANTING 398 Stipulation for Entry of Permanent Injunction. Signed by Judge Jeffrey S. White on 1/15/09. (jjo, COURT STAFF) (Filed on 1/15/2009)

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Case 3:06-cv-02173-JSW Document 398 Filed 01/14/2009 Page 1 of 5 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 Robert A. Weikert, State Bar No. 121146 rweikert@nixonpeabody.com John A. Chatowski, State Bar No. 174471 jchatowski@nixonpeabody.com NIXON PEABODY LLP One Embarcadero Center, Suite 1800 San Francisco, CA 94111 Telephone: (415) 984-8200 Facsimile: (415) 984-8300 Attorneys for Defendants AMERICAN STORES COMPANY, LLC, NEW ALBERTSONS, INC., and ALBERTSON'S LLC and Counterclaimants AMERICAN STORES COMPANY, LLC and NEW ALBERTSONS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO DIVISION) GROCERY OUTLET INC., Plaintiff, vs. AMERICAN STORES COMPANY, LLC, NEW ALBERTSONS, INC., ALBERTSONS, LLC, and SAVE MART SUPERMARKETS, Defendants. AMERICAN STORES COMPANY, LLC, NEW ALBERTSONS, INC., and ALBERTSONS, LLC Counterclaimants. vs. GROCERY OUTLET INC., Counterdefendant. Case No.: C06-02173 JSW STIPULATION FOR ENTRY OF PERMANENT INJUNCTION AND [PROPOSED] ORDER THEREON STIPULATION FOR ENTRY OF PERMANENT INJUNCTION AND [PROPOSED] ORDER THEREON Case 3:06-cv-02173-JSW Document 398 Filed 01/14/2009 Page 2 of 5 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 IT IS HEREBY STIPULATED AND AGREED, by and between plaintiff and counterdefendant Grocery Outlet, Inc. ("Grocery Outlet") and defendants American Stores Company, LLC ("American Stores"), New Albertson's, Inc. ("New Albertsons"), Albertson's LLC ("Albertson's LLC), and Save Mart Supermarkets ("Save Mart") (collectively "Defendants"), and counterclaimants American Stores and New Albertson (collectively counterclaimants), as follows: 1. On December 16, 2008, the Court entered its Order Granting Albertsons' Motion for Summary Judgment (Docket No. 380); 2. On December 17, 2008, the Court entered its Amended Order Granting Albertsons' Motion for Summary Judgment (Docket No. 382); 3. On December 30, 2008, American Stores, New Albertsons, and Albertson's LLC filed a Motion for Entry of Permanent Injunction (Docket No. 386); 4. The parties identified above agree to the entry of a permanent injunction against Grocery Outlet in the form set forth below, and that this order satisfies the requirements of Rule 65 of the Federal Rules of Civil Procedure; 5. American Stores, New Albertsons, and Albertson's LLC agree to withdraw their Motion for Entry of Permanent Injunction, currently set for hearing on February 13, 2009; and 6. The parties identified above agree that nothing in this Order shall preclude or otherwise limit Grocery Outlet's ability to exercise whatever appellate rights it may have, if any, with respect to the Court's December 16, 2008 Order Granting Albertsons' Motion for Summary Judgment, December 16, 2008 Judgment, December 17, 2008 Amended Order Granting Albertsons' Motion for Summary Judgment, the December 17, 2008 Amended Judgment, or any subsequent Amended Judgment in the case; except that Grocery Outlet agrees that it will not contend in connection with any appeal that the permanent injunction entered by the Court is invalid on some procedural basis or does not satisfy the requirements of Rule 65 of the Federal Rules of Civil Procedure. 12344319.1 -2- STIPULATION FOR ENTRY OF PERMANENT INJUNCTION AND [PROPOSED] ORDER THEREON Case 3:06-cv-02173-JSW Document 398 Filed 01/14/2009 Page 3 of 5 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 Accordingly, it is hereby ordered: 1. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the Court hereby finds it appropriate to enter a permanent injunction against Grocery Outlet; 2. The bond obtained by Albertson's Inc, American Stores, and Lucky Stores, Inc. in connection with this Court's July 7, 2006 Order granting Defendants' Motion for Preliminary Injunction is hereby released and dissolved; 3. Grocery Outlet is permanently enjoined from making any use whatsoever of the LUCKY trade name, trademark and service mark, or any confusingly similar name or mark, and in particular is barred from using the LUCKY trade name, trademark and service mark in association with retail grocery services and grocery products, including but not limited to (a) using the LUCKY trade name, trademark and service mark, or any confusingly similar name or mark, in or on any of Grocery Outlet's grocery stores; (b) using the LUCKY trade name, trademark and service mark, or any confusingly similar name or mark, on any goods or products; (c) using the LUCKY trade name, trademark and service mark, or any confusingly similar name or mark, in any print or broadcast advertising; (d) using the LUCKY trade name, trademark and service mark, or any confusingly similar name or mark, on any Internet web site controlled by Grocery Outlet or its agents; and (e) using the LUCKY trade name, trademark and service mark, or any confusingly similar name or mark, in any other fashion likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of Grocery Outlet with Defendants or their successors in interest, or as to the as to the origin, sponsorship, or approval of Grocery Outlet's goods, services or commercial activities by Defendants or their successors in interest; 4. This Order is binding on Grocery Outlet, its officers, agents, servants, employees, affiliates, attorneys, successors and assigns as well as those persons in active concert or participation with it and who receive actual notice of this Order; 12344319.1 -3- STIPULATION FOR ENTRY OF PERMANENT INJUNCTION AND [PROPOSED] ORDER THEREON Case 3:06-cv-02173-JSW Document 398 Filed 01/14/2009 Page 4 of 5 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 5. This Order shall inure to the benefit of, and shall be enforceable by, each of the following parties, American Stores, New Albertsons, Albertson's LLC, and Save Mart, and their affiliates, successors and assigns, as their respective interests may appear; and 6. Any violation of this Order is punishable by contempt of this Court. Respectfully submitted, Dated: January 14, 2009 CRAIGIE, McCARTHY & CLOW /S/ PETER W. CRAIGIE Attorneys for Plaintiff and Counter-Defendant GROCERY OUTLET, INC. Dated: January 14, 2009 NIXON PEABODY LLP /S/ JOHN A. CHATOWSKI Attorneys for Defendants AMERICAN STORES COMPANY, LLC, NEW ALBERTSONS, INC., and ALBERTSON'S LLC and Counterclaimants AMERICAN STORES COMPANY, LLC and NEW ALBERTSONS, INC. Dated: January 14, 2009 LAW OFFICES OF PERRY IRVINE /S/ PERRY IRVINE Attorneys for Defendant SAVE MART SUPERMARKETS 12344319.1 -4- STIPULATION FOR ENTRY OF PERMANENT INJUNCTION AND [PROPOSED] ORDER THEREON Case 3:06-cv-02173-JSW Document 398 Filed 01/14/2009 Page 5 of 5 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 12344319.1 GENERAL ORDER 45 CERTIFICATION I, John A. Chatowski, hereby attest pursuant to N.D. Cal. General Order No. 45 that the concurrence to the filing of this document has been obtained from each signatory hereto. Dated: January 14, 2009 NIXON PEABODY LLP ______________/s/ John A. Chatowski __________ John A. Chatowski Attorneys for Defendants AMERICAN STORES COMPANY, LLC, NEW ALBERTSONS, INC., and ALBERTSON'S LLC and Counterclaimants AMERICAN STORES COMPANY, LLC and NEW ALBERTSONS, INC. IT IS SO ORDERED. January 15, Dated: _____________________, 2009 ____________________________________ The Honorable Jeffrey S. White United States District Court Judge -5- STIPULATION FOR ENTRY OF PERMANENT INJUNCTION AND [PROPOSED] ORDER THEREON

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