eBay Inc. et al v. PartsRiver, Inc.

Filing 199

ORDER by Judge Claudia Wilken Granting ( 194 in case 4:10-cv-04947-CW; 545 in case 4:11-cv-01548-CW; 164 in case 4:11-cv-01398-CW) Motion to Appoint Receiver. (ndr, COURT STAFF) (Filed on 6/20/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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EBAY INC., and MICROSOFT
CORPORATION,

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Plaintiffs, Counterclaim-Defendants,
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vs.
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KELORA SYSTEMS, LLC,
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Defendant, Counterclaim-Plaintiff.
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_________________________________ )
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CABELA’S INC.,
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Plaintiff, Counterclaim-Defendant,
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vs.
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KELORA SYSTEMS, LLC,
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Defendant, Counterclaim-Plaintiff.
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_________________________________ )
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KELORA SYSTEMS, LLC,
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Plaintiff, Counterclaim-Defendant,
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vs.
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No. C 10-4947 CW (LB)

No. C 11-1398 CW (LB)

No. C 11-1548 CW (LB)

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ORDER GRANTING MOTION FOR APPOINTMENT OF RECEIVER
NO. C 10-4947 CW (LB) / No. C 11-1398 CW (LB) / No. C 11-1548 CW (LB)

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TARGET CORPORATION;
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AMAZON.COM, INC.; DELL, INC.;
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OFFICE DEPOT, INC.; NEWEGG INC.; )
COSTCO WHOLESALE
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CORPORATION; HEWLETT)
PACKARD COMPANY; AUDIBLE,
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INC.; and ZAPPOS.COM, INC.,
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Defendants, Counterclaim-Plaintiffs.
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_________________________________ )

ORDER GRANTING MOTION FOR
APPOINTMENT OF RECEIVER
Date:
Time:
Courtroom: 2, 4th Floor
Chief District Judge: Claudia Wilken

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Judgement Creditors eBay, Inc., Microsoft Corporation, Cabela’s Inc., Target Corporation,

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Amazon.com, Inc., Dell, Inc., Office Depot, Inc., Newegg, Inc., Costco Wholesale Corporation,

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Hewlett-Packard Company, Audible, Inc. and Zappos.com, Inc. move for appointment of a

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receiver. No opposition to the motion has been filed. The Court takes the motion under

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submission on the papers. Having considered the papers filed in support of the motion, and for

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good cause appearing, the Court GRANTS the motion for appointment of a receiver.

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IT IS HEREBY ORDERED that under C.C.P. § 708.620, C.C.P. § 564, C.C.P. § 564.8,

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and otherwise under FRCP 68, Michael Warda, Esq., shall be appointed as and for receiver of the

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trademark, patents, copyrights, and domain name, which are listed below:

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Trademarks:

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A. STEP SEARCH, Serial Number: 74735136.

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B. KELORA DIAMOND SEARCH [not registered with the USPTO].

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C. COMMERCE SUITE [not registered with the USPTO].

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Patents:

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Country

Title

A. United States

5,715,444

Method and system for executing a guided
parametric search

B. United States

6,327,588

Method and system for executing a guided
parametric search

C. United States

6,275,821

Method and system for executing a guided
parametric search

D. United States

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Patent No.

5,983,219

Method and system for executing a guided
parametric search

E. European Patent Office

0792 491

Method and system for executing a guided

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ORDER GRANTING MOTION FOR APPOINTMENT OF RECEIVER
NO. C 10-4947 CW (LB) / No. C 11-1398 CW (LB) / No. C 11-1548 CW (LB)

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parametric search

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F. Canada

2,202,481

Method and system for executing a guided
parametric search

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G. United States Patent
Danish, et al.

7,885,956

Display and search interface for product
database

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H. United States Patent
Danish, et al.

8,209,327

Display and search interface for product
database

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Domain Name:

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KELORA.COM.

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UDIAMONDSEARCH.COM.

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Copyright:

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Copyright for contents of domain name under the title of “KELORA.COM.” [Not

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registered with the United States Copyright Office.] The copyright is held in the name of Kelora

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Systems, LLC.

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IT IS FURTHER ORDERED that all rights to payment of money, accounts, accounts

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receivable, funds due under any patent license, or similar right under C.C.P. § 708.510(a) in which

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any and all funds which are due would be assigned and paid to Michael Warda as and for receiver

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thereof. These rights to payment of money include, but are not limited to, licensing fees,

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maintenance fees, annual fees, renewal fees, and other charges arising out of or based on the use

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of a software, digital, or other product owed by the following obligors:

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Original
Buy Date

Name

Latest Product Used

Type

Comments

3M
Honeywell
International, Inc.
Hubbell
IDEC
Corporation
Lincoln Electric
Company
SICK, Inc.
Zilog

CommerceSuite 4.5

Licensed

Current

CommerceSuite 4.5
ProductServer 3.1

Licensed
Licensed

Current
Current

CommerceSuite 4.5

Licensed

Current

CommerceSuite 4.5
CommerceSuite 4.5
ProductServer 3.1

Licensed
Licensed
Licensed

Current
Current
Current

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5/23/2000
4/15/2000

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4/5/2000
7/31/2000

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3/30/2001
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5/31/2002
12/29/1999

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These funds may arise out of and are based upon any and all rights to payment of money, claims,

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causes of action, payment streams, revenues, or licenses which arise out of any licensing, patents,

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or any claims of infringement thereof.
ORDER GRANTING MOTION FOR APPOINTMENT OF RECEIVER
NO. C 10-4947 CW (LB) / No. C 11-1398 CW (LB) / No. C 11-1548 CW (LB)

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IT IS FURTHER ORDERED the Defendant KELORA SYSTEMS, LLC is restrained from

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the sale, alienation, mortgage, lien, encumbrance, advancement, cashing or negotiation, or receipt

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or exploitation of any of the accounts under C.C.P. § 708.520(a).

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IT IS FURTHER ORDERED that Defendant KELORA SYSTEMS, LLC shall turn over

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any and all documentary evidence of any of the accounts, including but not limited to, any checks,

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drafts, money orders, deposits, deposit accounts, books, records, papers or files, listing of

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accounts, accounts receivable ledgers or journals, to and on behalf of the UNITED STATES

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MARSHAL, NORTHERN DISTRICT OF CALIFORNIA, 450 Golden Gate Avenue, Rm. 20-

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6888, San Francisco, CA 94102, ATTN: CIVIL ENFORCEMENTS, pursuant to the provisions of

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C.C.P. §699.040(a).

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IT IS FURTHER ORDERED that the following are the proposed receiver’s duties herein:

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A. The receiver shall be entitled to sell, auction, convey, transfer, license, and sublicense

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all of the trademarks, patents, copyrights, accounts and accounts receivable, and domain name.
B. The receiver may conduct a private or public sale, subject to further order of this court,

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and to the highest bidder, including a credit bid by Judgment Creditors, to sell the trademarks,

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patents, copyrights, accounts and accounts receivable, and domain name.

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C. The receiver may establish one or more bank accounts to deposit any and all proceeds

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thereof from the sale of the trademarks, patents, copyrights, accounts and accounts receivable, and

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domain name.

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D. The receiver may make, execute and deliver any types of applications, transfer notices,

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notes, instruments, or other writings, for and on behalf of any purchaser, and/or conveyee of the

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intellectual property therein, and to execute, make and deliver any and all writings required by the

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United States Trademark and Patent Office, to facilitate the transfer thereunder of the trademarks,

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patents, copyrights, accounts and accounts receivable, and domain name.

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E. The receiver may be authorized, if necessary, to affix the name of the Defendant on any

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documents which may be required by the United States Trademark and Patent Office, to facilitate

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the transfer of the copyrights relating to the trademarks, patents, copyrights, accounts and

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accounts receivable, and domain name from the Defendant to the successful buyer herein.
ORDER GRANTING MOTION FOR APPOINTMENT OF RECEIVER
NO. C 10-4947 CW (LB) / No. C 11-1398 CW (LB) / No. C 11-1548 CW (LB)

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F. The receiver may retain the services of one or more attorneys, experts or consultants,

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by which to aid and advise the receiver in the performance of the duties thereunder and appraise or

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evaluate the trademarks, patents, copyrights, accounts and accounts receivable, and domain name.

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G. The receiver may advertise and incur any expense for purposes of advertising the

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intellectual property for sale, which would include the publication in Craig’s List, online

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activities, any newspaper of general circulation, any trade newspaper or magazine, or any other

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activity by which to promote the sale thereunder of the trademarks, patents, copyrights, accounts

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and accounts receivable, and domain name.

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H. The receiver may take and receive all funds constituting the proceeds from the sale of

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the trademarks, patents, copyrights, accounts and accounts receivable, and domain name, and

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deposit the same in a receiver’s account, pending further order of this court.

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I. The receiver may conduct a credit bid for the benefit of the Judgment Creditors

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thereunder for the sale of the trademarks, patents, copyrights, accounts and accounts receivable,

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and domain name.

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J. That the receiver shall be authorized to collect and receive payments due under an

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assignment order under C.C.P. § 708.510(a), that such payments shall be deposited in the account

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of the receiver herein pending further order of this court, that the receiver shall be entitled to

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endorse any and all checks, drafts, warrants, instruments and notes in the name of the Judgment

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Debtor, and deposit the same as applicable in a bank account, pending further order of this court;

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that the receiver be authorized in good faith to negotiate any discount on any debt due the

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Judgment Debtor, extend time for payment, accept or receive a compromise, or otherwise dispose

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of any obligation due the debtor in the place of the debtor.

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K. The court shall keep and retain continuing jurisdiction for the sale or liquidation of the
trademarks, patents, copyrights, accounts and accounts receivable, and domain name.

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6/20/2013
DATED: ____________________

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CLAUDIA WILKEN
CHIEF DISTRICT JUDGE

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ORDER GRANTING MOTION FOR APPOINTMENT OF RECEIVER
NO. C 10-4947 CW (LB) / No. C 11-1398 CW (LB) / No. C 11-1548 CW (LB)

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