Del Monte Fresh Produce, N.A., Inc. v. Kiparissi Corporation et al

Filing 20

ORDER for permanent injunction as to Tsigaris. (cmc remains on calendar until Kiparissi Corp. is dismissed) (tf, COURT STAFF) (Filed on 6/22/2011)

1
2
3
4
5

J. MICHAEL KEYES (State Bar No. 262281)
[e-mail]
RACHEL DAVIDSON (State Bar No. 215517)
[e-mail]
K&L GATES LLP
Four Embarcadero Center, #1200
San Francisco, California 94111
Telephone: [phone]
Facsimile: 415-882-8220

6
7

Attorneys for Plaintiff
Del Monte Fresh Produce, N.A., Inc.

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15

DEL MONTE FRESH PRODUCE, N.A.,
INC.,
Plaintiff,
v.
KIPARISSI CORPORATION, d/b/a/ “DEL
MONTE PRODUCE”; DIMITRIES
TSIGARIS, an individual, JOHN DOES
NOS. 1-10,

Case No. CV-11-00682 SI
STIPULATION TO FINAL
JUDGMENT AND PERMANENT
INJUNCTION AGAINST
DIMITRIES TSIGARIS

Defendants.

16
17

Plaintiff Del Monte Fresh Produce, N.A., Inc. and Defendant Dimitries Tsigaris hereby

18

stipulate to the facts and conclusions contained in the attached Final Judgment and Permanent

19

Injunction and consent to its entry by this Court.

20
21

DATED: June 16, 2011

22

Respectfully submitted,
By: /s Susan Bishop ________________
Susan Bishop
Attorney for Defendant Dimitries Tsigaris

23
24
DATED: June 16, 2011

K&L GATES LLP

25
26
27
28

By: /s J. Michael Keyes _______________________
J. Michael Keyes
Attorney for Plaintiff Del Monte Fresh Produce,
N.A., Inc.
1
[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION AGAINST DIMITRIES TSIGARIS

1
2
3
4
5
6
7

J. MICHAEL KEYES (State Bar No. 262281)
[e-mail]
RACHEL DAVIDSON (State Bar No. 215517)
[e-mail]
K&L GATES LLP
Four Embarcadero Center, #1200
San Francisco, California 94111
Telephone: [phone]
Facsimile: 415-882-8220
Attorneys for Plaintiff
Del Monte Fresh Produce, N.A., Inc.

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
11

DEL MONTE FRESH PRODUCE, N.A.,
INC.,
Plaintiff,

12
13
14
15

v.
KIPARISSI CORPORATION, d/b/a/ “DEL
MONTE PRODUCE”; DIMITRIES
TSIGARIS, an individual, JOHN DOES
NOS. 1-10,

Case No. CV-11-00682 SI
[PROPOSED] FINAL
JUDGMENT AND PERMANENT
INJUNCTION

Defendants.

16
17

Plaintiff Del Monte Fresh Produce, N.A., Inc. (“Del Monte Fresh Produce”) filed a

18

Complaint alleging trademark infringement and unfair competition under California and federal

19

law against Defendant Dimitries Tsigaris (“Tsigaris”) and other parties.

20

Produce alleges that Tsigaris infringed its trademarks in the operation of “Del Monte Produce”, a

21

business selling fresh fruit and vegetables. Tsigaris does not admit to these allegations, but

22

consents to entry of this Final Judgment and Permanent Injunction to resolve this matter

23

expeditiously.

24

Del Monte Fresh

The Court now enters this Final Judgment and Permanent Injunction based on the

25

following facts.

26

Permanent Injunction and each party will bear its own fees and costs in connection with this

27

action.

Each party has waived the right to appeal from this Final Judgment and

28
2
[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION AGAINST DIMITRIES TSIGARIS

1
2
3
4

I.

STIPULATED FACTS AND CONCLUSIONS
A.

This Court has subject matter jurisdiction over this lawsuit and personal

jurisdiction over Tsigaris. Venue is proper in this Court.
B.

Del Monte Fresh Produce is the exclusive U.S. licensee of several valid,

5

federally-registered “Del Monte” trademarks for use in conjunction with fresh fruits and

6

vegetables (the “Licensed Marks”), including:

7

1.

“Del Monte,” U.S. Registration No. 881,339;

8

2.

“Del Monte Gold,” U.S. Registration No. 2,754,865;

9

3.

“Del Monte Quality,” U.S. Registration No. 2,581,586; and

10

4.

“Del Monte Gold Del Monte Quality,” U.S. Registration No. 2,287,404.

11

C.

Tsigaris has operated and currently operates a business d/b/a “Del Monte

12

Produce,” located at 2400 Del Monte Way, Monterey, CA, 93940 (the physical location

13

hereinafter referred to as “the Property”), wherein he sells fresh fruit and vegetables (“Del Monte

14

Produce”).

15

D.

Tsigaris hereby represents and warrants that he is not the owner, lessee, operator,

16

or user of two delivery trucks that contain the infringing name “Del Monte Produce” (the

17

“Infringing Trucks”) and that are physically located on the Property. On information and belief,

18

Watsonville Coast Produce, Inc. (the “Owner”) owns the Infringing Trucks. Despite Tsigaris’

19

requests that the Owner remove the Infringing Trucks from the Property, the Owner has not

20

removed the Infringing Trucks.

21

E.

Tsigaris hereby represents that he currently maintains a federal Employer

22

Identification Number (“EIN”) under the name Dimitires Tsigaris “d/b/a/ Del Monte Produce.”

23

Tsigaris further represents and warrants that he does not use, and will not use in the future, the

24

“Del Monte Produce” name in any manner with respect to any business or administrative filings

25

with the federal, state and local authorities.

26
27
28
3
[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION AGAINST DIMITRIES TSIGARIS

1

F.

Tsigaris hereby represents and warrants the he currently maintains business

2

checks with the name “Del Monte Produce” and that these are only used for bills that must be

3

paid by a written check as opposed to an online, debit, or credit payment.

4

II.

ORDER

5

It is hereby ordered and adjudged as follows:

6

A.

Within sixty (60) days after this Court enters this Final Judgment and Permanent

7

Injunction, Tsigaris and his agents, employees, servants, predecessors, successors, assigns,

8

affiliates, and all persons acting in concert or participating with him who receive actual notice of

9

this Final Judgment and Permanent Injunction, are hereby permanently enjoined and restrained,

10
11

directly or indirectly, from doing, authorizing or procuring any persons to do the following:
1.

Manufacturing, producing, sourcing, importing, selling, offering for sale,

12

distributing, advertising or promoting any consumer products (including fresh fruits, fresh

13

vegetables, and fresh produce) using the name “Del Monte” or any other words or symbols that

14

so resemble the Licensed Marks as to be likely to cause consumers to believe that Tsigaris’

15

business is affiliated with, sponsored by, or is otherwise approved by Plaintiff. Specifically,

16

Tsigaris shall cause the name “Del Monte Produce” to be removed from the building located at

17

2400 Del Monte Way, Monterey, CA 93940, and any business property therein or thereon,

18

including but not limited to, delivery trucks, invoices, purchase orders and printed receipts;

19
20
21
22
23

2.

Using or filing applications for the registration of trademarks, designs or

other intellectual property that is substantially similar to the Licensed Marks;
3.

Assisting, aiding or abetting any person or entity engaging in or

performing any act prohibited by this paragraph (A).
4.

Tsigaris shall continue to use his best efforts to contact the Owner of the

24

Infringing Trucks and request that they be removed from the property. Tsigaris shall also

25

promptly provide a copy of this Final Judgment and Permanent Injunction to the Owner of the

26

Infringing Trucks.

27
28
4
[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION AGAINST DIMITRIES TSIGARIS

1

5.

Within sixty (60) days after this Court enters this Final Judgment and

2

Permanent Injunction, Tsigaris shall execute and file with the County of Monterey Clerk a

3

“Statement of Abandonment of Use of Fictitious Business Name” for the name “Del Monte

4

Produce.”

5

6.

Within 180 days after this Court enters this Final Judgment and Permanent

6

Injunction, Tsigaris will refrain from using the business checks referenced in Paragraph I. F.,

7

supra.

8

7.

Notwithstanding the above, nothing in this Final Judgment and Permanent

9

Injunction will require Tsigaris to obtain a new EIN, so long as the use of the current EIN

10

conforms to the representations and uses set forth in Paragraph I.E., supra. Notwithstanding this

11

paragraph (7), to the extent any use of the current EIN causes any confusion, or causes mistake,

12

or deceives any person as to the affiliation, connection, or association of Tsigaris with Plaintiff,

13

or as to the origin, sponsorship or approval of his goods, services or commercial activities by

14

Plaintiff, then Plaintiff shall have the right to demand that Tsigaris cease and desist from any

15

further use of the current EIN and obtain a new one from the federal government without the

16

name “d/b/a Del Monte Produce.”

17

B.

Within seventy (70) days after this Court executes this Final Judgment and

18

Permanent Injunction, Tsigaris shall file with this Court and serve upon Plaintiff’s counsel a

19

written report under oath setting forth in detail the manner in which Defendant has complied

20

with this Final Judgment and Permanent Injunction.

21

C.

Should this Court find Tsigaris to be in contempt of this Final Judgment and

22

Permanent Injunction, Tsigaris shall be liable for liquidated damages in the amount of $500.00

23

for each day that Tsigaris is found to be violation of this Final Judgment and Permanent

24

Injunction. Tsigaris shall also be liable for any attorneys’ fees incurred by Plaintiff in any

25

enforcement proceedings brought pursuant to this paragraph (C).

26
27
28
5
[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION AGAINST DIMITRIES TSIGARIS

1

D.

This Court shall retain jurisdiction for the purpose of making any further orders

2

necessary and proper for the construction or modification of this Final Judgment and Permanent

3

Injunction, the enforcement thereof, and/or the punishment for any violations thereof.

4

E.

For the purpose of any future proceeding to enforce the terms of this Final

5

Judgment and Permanent Injunction, service by mail upon a party or its counsel of record at their

6

last known address shall be deemed adequate notice for each party.

7
8

21
PURSUANT TO STIPULATION IT IS SO ORDERED this __ day of June, 2011

9
10

____________________________________

11

The Honorable Susan Illston

12

K:\0440101\00015\17096_RAW\17096P274A-x

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION AGAINST DIMITRIES TSIGARIS