Capcom Co. LTD. et al v. The MKR Group, Inc.

Filing 69

ORDER AND JUDGMENT re 68 (rslc1, COURT STAFF) (Filed on 11/25/2008) Modified on 12/1/2008 (rssec, COURT STAFF).

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[List of Counsel Appears on Signature Page]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

CAPCOM CO., LTD. and CAPCOM ENTERTAINMENT, INC., Plaintiffs, v. THE MKR GROUP, INC., Defendant. THE MKR GROUP, INC., Counterclaim-Plaintiff and ThirdParty Plaintiff, v. CAPCOM CO., LTD. and CAPCOM ENTERTAINMENT, INC., Counterclaim-Defendants, and CAPCOM U.S.A., INC., Third-Party Defendant.

Case No. 5:08-CV-00904 (RS) (MED) STIPULATION AND [PROPOSED] ORDER AND JUDGMENT

WHEREAS, on February 12, 2008, Capcom Co., Ltd. and Capcom Entertainment, Inc. ("Plaintiffs") filed their Complaint for Declaratory Relief against The MKR Group, Inc. ("MKR") (the "Declaratory Relief Complaint") seeking a judicial declaration that Plaintiffs' video game Dead Rising did not infringe MKR's copyright or trademark rights held in the film George A. Romero's Dawn of the Dead or otherwise incur liability for related state and common law claims;

STIP & [PROPOSED] ORDER AND JUDGMENT

CASE NO. 5:08-CV-00904 (RS)(MED)

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WHEREAS, on May 15, 2008, MKR filed its Amended Answer, Counterclaims and Third Party Complaint asserting claims for copyright infringement, violations of the Lanham Act, and related state and common law claims against Plaintiffs and Third-Party Defendant Capcom U.S.A., Inc. (collectively "Capcom"); WHEREAS, on October 20, 2008, the Court posted its Order dated October 10, 2008, granting Capcom's Motion to Dismiss MKR's Counterclaims in their entirety and with prejudice (the "Order"); and, WHEREAS, MKR has agreed to withdraw its Opposition No. 91/175,392 before the Trademark Trial and Appeal Board of the United States Patent and Trademark Office against Capcom Co., Ltd.'s United States Trademark Application Serial No. 78/633,771 for the mark DEAD RISING. Now, therefore, pursuant to a settlement between the parties, IT IS HEREBY STIPULATED, CONSENTED AND AGREED TO by and between the parties, after consultation with their respective attorneys of record, that (i) in view of the Court's Order, Capcom's Declaratory Relief Complaint is dismissed as moot; (ii) Capcom waives its right to seek attorneys' fees, expenses and costs incurred in relation to the above titled actions; (iii) each party shall bear its own attorney's fees, expenses and costs incurred in relation to the above titled actions; and (iv) MKR waives its right to appeal the Court's Order. SO STIPULATED AND AGREED: Dated: November 14, 2008 FENWICK & WEST LLP By: /s/ Rodger R. Cole_____________ Rodger R. Cole (CSB NO. 178865) Jennifer L. Kelly (CSB No. 193416) Mary E. Milionis (CSB No. 238827) KENYON & KENYON LLP By: /s/ Philip J. McCabe Philip J. McCabe (CSB NO. 201092) Mark Yuan (CSB NO. 246146) Jonathan D. Reichman (Pro Hac Vice) Mimi K. Rupp (Pro Hac Vice)

Attorneys for Plaintiffs and CounterclaimAttorneys for Defendant, CounterclaimDefendants CAPCOM CO., LTD. and Plaintiff and Third-Party Plaintiff CAPCOM ENTERTAINMENT, INC., and Third-Party Defendant CAPCOM U.S.A., INC. THE MKR GROUP, INC

STIP & [PROPOSED] ORDER AND JUDGMENT

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CASE NO. 5:08-CV-00904 (RS)(MED)

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ATTESTATION PURSUANT TO GENERAL ORDER 45 I, Philip J. McCabe, attest that concurrence in the filing of this document has been obtained from any signatories indicated by a "conformed" signature (/s/) within this e-filed document. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 14th day of November, 2008 at San Jose, California. KENYON & KENYON, LLP By: /s/ Philip J. McCabe ________ Philip J. McCabe Attorneys for THE MKR GROUP

[PROPOSED] ORDER AND JUDGMENT Pursuant to the above Stipulation, (i) in view of the Court's Order, Capcom's Declaratory Relief Complaint is dismissed as moot; (ii) Capcom waives its right to seek attorneys' fees, expenses and costs incurred in relation to the above titled actions; (iii) each party shall bear its own attorney's fees, expenses and costs incurred in relation to the above titled actions; and (iv) MKR waives its right to appeal the Court's Order. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that judgment be entered in favor of Capcom. . SO ORDERED:

11/24/08 Date: _____________, 2008

__________________________________ Judge Richard Seeborg United States Magistrate Judge

STIP & [PROPOSED] ORDER AND JUDGMENT

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CASE NO. 5:08-CV-00904 (RS)(MED)