Levi Strauss & Co v. Chimala Design, Inc.

Filing 18

STIPULATION AND ORDER re 17 to Final Judgment and Permanent Injunction. Signed by Judge Jeremy Fogel on 1/6/09. (dlm, COURT STAFF) (Filed on 1/15/2009)

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TOWNSEND AND TOWNSEND AND CREW LLP GREGORY S. GILCHRIST (State Bar No. 111536) GIA L. CINCONE (State Bar No. 141668) RAQUEL PACHECO (State Bar No. 245328) Two Embarcadero Center, 8th Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail], [e-mail], [e-mail] Attorneys for Plaintiff LEVI STRAUSS & CO. FREDRIC H. AARON 14 Vanderventer Avenue, Suite 212 Port Washington, NY 11050 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorney for Defendant CHIMALA DESIGN, INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION LEVI STRAUSS & CO., Plaintiff, v. CHIMALA DESIGN, INC., Defendant. Case No. C 08-02623 JF STIPULATION TO FINAL JUDGMENT AND PERMANENT INJUNCTION

STIPULATION TO ENTRY OF FINAL JUDGMENT - 1 -

Levi Strauss & Co. v. Chimala Design, Inc. Case No. CV 08-2623 JF

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Plaintiff Levi Strauss & Co. and Defendant Chimala Design, Inc. hereby stipulate to the facts and conclusions contained in the attached Final Judgment and Permanent Injunction and consent to its entry by the Court. IT IS SO STIPULATED AND CONSENTED. DATED: January 5, 2009 TOWNSEND AND TOWNSEND AND CREW LLP

By: /s/ Raquel Pacheco__________ Raquel Pacheco Attorneys for Plaintiff LEVI STRAUSS & CO. DATED: January 5, 2009 CHIMALA DESIGN, INC.

By: /s/ Fredric H. Aaron__________ Fredric H. Aaron Attorney for Defendant CHIMALA DESIGN, INC.

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Levi Strauss & Co. v. Chimala Design, Inc. Case No. CV 08-2623 JF

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 Plaintiff Levi Strauss & Co. ("LS&CO.") has filed a Complaint alleging trademark infringement, dilution, and unfair competition under federal and California law against defendant Chimala Design, Inc. ("Chimala"). LS&CO. alleges that Chimala has manufactured, promoted, and sold clothing, including denim jeans, that violates LS&CO.'s rights in its registered Tab Device Trademark (the "Tab trademark"). The Court now enters final judgment based upon the following undisputed facts. Each party has waived the right to appeal from this final judgment and each party will bear its own fees and costs in connection with this action. I. STIPULATED FACTS AND CONCLUSIONS A. This Court has subject matter jurisdiction over this lawsuit and personal jurisdiction v. CHIMALA DESIGN, INC., Defendant. LEVI STRAUSS & CO., Plaintiff, Case No. C 08-02623 JF FINAL JUDGMENT UPON CONSENT AND PERMANENT INJUNCTION UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

over Chimala. Venue is proper in this Court.
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B.

LS&CO. owns the Tab trademark, which is a valid and famous trademark of LS&CO.

and which is registered as follows for use on a variety of casual apparel: a. May 10, 1938); b. October 18, 1949); c. July 21, 1953); d. August 4, 1964); e. August 18, 1964); and f. June 16, 1961). C. Chimala has infringed LS&CO.'s Tab trademark and engaged in unfair competition by Registration No. 1,157,769 (first used as early as September 1, 1936; registered Registration No. 775,412 (first used as early as October 9, 1957; registered Registration No. 774,625 (first used as early as May 22, 1963; registered Registration No. 577,490 (first used as early as September 1, 1936; registered Registration No. 516,561 (first used as early as September 1, 1936; registered Registration No. 356,701 (first used as early as September 1, 1936; registered

manufacturing, distributing and selling jeans that display the pocket tab illustrated in Exhibit A (the "Chimala tab"). II. ORDER It is hereby ordered and adjudged as follows: 1. Commencing as of the "So Ordered" date of this Final Judgment and Permanent

Injunction, Chimala, its principals, agents, employees, officers, directors, servants, successors, and assigns, and all persons acting in concert or participating with it or under its control who receive actual notice of this Order, are hereby permanently enjoined and restrained, directly or indirectly, from doing, authorizing or procuring any persons to do any of the following: a. Manufacturing, licensing, selling, offering for sale, distributing, importing,

exporting, advertising, promoting, or displaying any products that display any tab in the form and location illustrated in Exhibit A, or any other tab that is substantially similar to the Chimala tab or to the Tab trademark;
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b.

Manufacturing, licensing, selling, offering for sale, distributing, importing,

exporting, advertising, promoting, or displaying any products that display any tab that may reasonably be believed to be as similar or more similar to the Tab trademark than the Chimala tab; c. d. Violating the rights of Levi Strauss & Co. in and to its Tab trademark; and Assisting, aiding or abetting any person or entity engaging in or performing any

act prohibited by this paragraph. 2. Chimala shall pay to LS&CO. the sum of $6,500.00 within 14 calendar days from the

date of entry of this Judgment. If this amount is not timely paid, interest of 7% will run on the unpaid balance from the date of entry of this Judgment. A check payable to Levi Strauss & CO. shall be sent to Townsend and Townsend and Crew LLP addressed as follows: Raquel Pacheco TOWNSEND AND TOWNSEND AND CREW LLP Two Embarcadero Center, 8th Floor San Francisco, CA 94111 In the event that Chimala violates the terms of this Judgment by making, selling or

offering for sale garments displaying the Chimala tab illustrated in Exhibit A, it shall pay to LS&CO. liquidated damages of (a) 20% of the sales revenue received by Chimala at any time on account of such garments, or (b) $10,000, whichever is greater, and judgment shall be entered against Chimala for that amount. Chimala specifically acknowledges that this is a reasonable estimate of the damages to which LS&CO. would be entitled by virtue of Chimala's sales of such garments and the costs LS&CO. has incurred in enforcing its rights. Such liquidated damages shall be in addition to any further damages or equitable relief to which LS&CO. may be entitled with respect to future sales by Chimala that violate LS&CO.'s trademark rights, but any payments made by Chimala pursuant to this paragraph shall be deemed a credit against any potential award of damages under this paragraph. 4. This Court shall retain jurisdiction for the purpose of making any further orders

necessary or proper for the construction or modification of this Judgment, the enforcement thereof, and/or the punishment for any violations thereof. If LS&CO. commences an action for enforcement of this Judgment, the prevailing party shall be awarded reasonable attorneys' fees and costs from the other party.
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5.

For the purpose of any future proceeding to enforce the terms of this Judgment, service

by mail upon a party or their counsel of record at their last known address shall be deemed adequate notice for each party.

IT IS SO ORDERED AND ADJUDGED.

1/6/09 DATED: __________________

_________________________________ The Honorable Jeremy Fogel United States District Court Judge

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Levi Strauss & Co. v. Chimala Design, Inc. Case No. CV 08-2623 JF