Emergent BioSolutions Inc. v. Mutual Holistic, Inc.

Filing 21

ORDER GRANTING 18 Stipulated Request for Entry of Consent Decree and Dismissal. Signed by Judge Nathanael M. Cousins on 4/28/2021. (lmhS, COURT STAFF) (Filed on 4/28/2021)

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2 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 8 & CROWELL MORING LLP Valerie M. Goo (SBN 187334) vgoo@crowel I .com CROWELL & MORING LLP 515 South Flower St., 40th Floor Los Angeles, CA 90071 Telephone: (213) 622-4750 Facsimile: (213) 622-2690 Molly A. Jones (SBN 301419) mojones@crowell.com CROWELL & MORING LLP 3 Embarcadero Center, 26th Floor San Francisco, CA 941 I I Telephone: (415) 986-2800 Facsimile: (415) 986-2827 Virginia Wolk Marino (Illinois Bar No. 629799 I; pro hac vice to be submitted) vmarino@brinksgiIson.com Andrew J. Avsec (Illinois Bar No. 6292313; pro hac vice to be submitted) aavsec@brinksgilson.com BRINKS GILSON & LIONE NBC Tower - Suite 3600 455 N. Cityfront Plaza Drive Chicago, Illinois 60611 Telephone: (312) 321-4200 Facsimile: (312) 321-4299 Attorneys for Plaintif EMERGENT BIOSOLUTIONS INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION EMERGENT BIOSOLUTIONS INC. vs. Plaintiff, MUTUAL HOLISTIC, INC., JOHN DOES I THROUGH 50, and JOHN DOE ENTITIES I THROUGH IO, Defendants. f Case No. 5:20-cv-09452-NC Judge: Hon. Nathanael M. Cousins Complaint Filed: December 30, 2020 Case 5:20-cv-09452-NC Document 21 Filed 04/28/21 Page 1 of 5 V. Apr 28 2021 STIPULATED REQUEST FOR ENTRY OF CONSENT DECREE AND DISMISSAL; ORDER STIPULATED REQUEST FOR ENTRY OF CONSENT DECREE; [ORDER; CASE NO. 5:20-CV-09452-NC 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 CROWELL & MORI G LLP I. 2. 3. 4. 6. -2- The following Consent Decree is entered by and between Plaintiff Emergent BioSolutions Inc. ("Emergent" or "Plaintiff"), Defendant Mutual Holistic, Inc. ("Mutual Holistic"), and Mutual Holistic's officer Brad Moore ("Moore," and collectively with Mutual Holistic, "Defendants"), having agreed upon a basis for settlement of the matters in dispute and having agreed upon the entry of this Consent Decree, it is hereby ordered, adjudged, and decreed as follows, and the Court makes the following findings of fact and conclusion of law: parties hereto. This Court has jurisdiction over the subject matter of this action and over the Venue properly lies in this District. Emergent is a Delaware corporation with a principal place of business in Gaithersburg, Maryland. Mutual Holistic is a non-profit mutual benefit corporation organized under the laws of California with a principal place of business in Sebastopol, California. Moore is an individual with an address c/o Attorney Richard Freeman, 703 2nd Street,Suite 350, Santa Rosa, CA 95404. Emergent has for many years used the trademarks and service marks EMERGENT and EMERGENT BIOSOLUTIONS, alone and in connection with other words and designs (the "EMERGENT Marks"), in connection with various goods and services, including biopharmaceutical related products and services. In addition to its common law rights, Emergent is the owner of numerous federal trademark and service mark registrations and applications for the EMERGENT Marks, including but not limited to, Reg. Nos. 3,934,662; 4,020,248; 3,446,708; 5,129,287; 5,211,622; and App. Serial No. 88/884,324. Mutual Holistic and Moore have promoted their herbal medicine products and services, including Respiratory Immune Syrups, under the name and mark EMERGENT BOTANICALS, without any authorization or consent from Emergent. The EMERGENT Marks are valid, subsisting and in full force and effect as to Defendants. Case 5:20-cv-09452-NC Document 21 Filed 04/28/21 Page 2 of 5 5. 7. 8. STIPULATED REQUEST FOR ENTRY OF CONSENT DECREE; ORDER; CASE NO. 5 20-CV-09452-NC 6 2 3 4 5 7 8 9 IO II 12 13 15 16 17 18 19 20 21 22 23 24 25 27 14 26 9. Defendants' use of the name and mark EMERGENT BOTANICALS in connection with herbal medicine products and services is likely to cause confusion, or to cause mistake, or to deceive the relevant public and the trade, such that the relevant public and the trade are likely to believe that Defendants and their goods and services originate with or are related to Emergent. Defendants and any of their officers, agents, servants, employees, attorneys, successors, related companies and assigns and their business or businesses, and all those in active concert or participation with them, are hereby permanently enjoined from using the name and mark EMERGENT BOTANICALS, any mark incorporating the term EMERGENT, or any other mark confusingly similar to the EMERGENT Marks, in connection with the provision of goods and services. 11. Each party shall bear its own attorney's fees and costs incurred in connection with this action and all rights of appeal are waived. 12. This Consent Decree may be executed in any number of counterparts, all of which together shall constitute one original document. Electronic copies of original signatures shall be deemed to be originally executed counterparts of this Consent Decree. 13. Subject only to the express restrictions contained in this Consent Decree, all of the rights, duties and obligations contained in this Consent Decree shall inure to the benefit of and shall be binding upon Plaintiff and Defendants and their successors and assigns. Plaintiff and Defendants have negotiated this Consent Decree, and agree that it shall not be construed against the party preparing it, but shall be construed as if the parties jointly prepared this [Proposed] Consent Decree and any uncertainty and ambiguity shall not be interpreted against any one party. 15. Each signatory of this Consent Decree signing on behalf of another, warrants that he or she has the authority to sign on behalf of said person or entity and all persons Case 5:20-cv-09452-NC Document 21 Filed 04/28/21 Page 3 of 5 10. 14. 28 CROWELL & MORING LLP ATTPRNn, AT LAW -3- STIPULATED REQUEST FOR ENTRY OF CONSENT DECREE; ORDER; CASE NO. 5:20-CV-09452-NC Case 5:20-cv-09452-NC Document 21 Filed 04/28/21 Page 4 of 5 covered hy this Consent Decn::e, and is l'ully authori/,ed by the party whom he or she represents f to enter into Ihc terms and conditions of this l >rorosctll Consent Dc::crec. + 5 16. provisions of lhi� Consent Decree. including over an} claim that the Defondants have violated any term of this Consent Decree. 6 7 8 9 17. 12 Emergent and Defendants herchy respectfi1lly request Iha! this Court promptly approve an<l enter this Consent Decree. If this IConsent Decrt-c is not appro\>cd hy the Court, it shall he of nn force and eflcct. and it may not he used in any proceeding for any purpost:. JO 11 This Court shal I retain junsdiction mer this matter for purposes of enforcing the 1T IS SO AGREED AND STIPULATl<:D. Dated: March _. 2021 Name: Title: 14 16 c:Pf)<f.e By: 13 15 EMERGENT l310SOLUTIONS, INC Dated: /\pril K. • 2021 Elecrronically signed by. Jennifer Fox Reason' I approve this document Date· Apr 24, 2021 18.37 EDT Jennifer Fox SVP and Deputy General Counsel MlJTllAL 110!.ISTIC INC 17 18 19 20 Dated: April 8.. 2021 21 22 23 24 25 26 27 �JHJW1.h 4 U()�INfi¾..i.,P i 28 '!';)P,>ol �.._, �T l,A.� APPROVED AS TO FORM: Dated. �Qk. 2021 CROWELL & MORIN(i I.LP Bv: ls/r(\fp/1" --�one Valerie M. Go f ,\ttorneys for Plaintif EMFR(iENT Btosou:T[ONS [NC , I ll'Ul.,\ l Ul RL.lH.\ I H1K ENTK 'f 1)£­ r ONSPH DF.LHIT. !Of{l)I R CA'-l' NO 5.2!1-( V-094�.1-N( & MnRtNC LLP 3 4 7 2 5 6 8 9 10 11 12 13 14 15 FILER'S ATTESTATION ORDER incorporated herein by reference and is entered as an Order of the Court. Case 5:20-cv-09452-NC Document 21 Filed 04/28/21 Page 5 of 5 Dated: April 2 f , 2021 THE LAW OF 'JCES OF RICHARD FREEMAN Specially appearing on behalf of Defendants MUTUAL HOLISTIC, INC. and BRAD MOORE Pursuant to Civil Local Rule 5- I (i)(J) regarding signatures, I attest that the other above- named signatories concur in this filing. Dated: April )l_o. 2021 IT JS HEREBY ORDERED that the foregoing Consent Decree is fully I6 IT IS FURTHER ORDERED that the Court shall retain jurisdiction over the Parties for the 17 sole purpose of enforcing compliance by the Plaintiff and Defendant with the terms of the Consent 18 Decree. 19 IT IS FURTHER ORDERED that upon approval and entry of this Consent Decree by the 20 Court this Consent Decree shall constitute a final judgment between Emergent and the Defendants. 21 The above-captioned action against Defendants is dismissed with prejudice and all calendared dates 22 are hereby vacated. S UNIT ED 25 April 28 Dated: ____, 2021 NO RT c�owu I. ER H 28 Jud -5- FO Honorable Nathanael M. Cousins ins l M Cous United StatesgeMagistrate .Judge Nathanae 27 LI 26 TED GRAN RT U O 24 ISTRIC ES D TC AT T R NIA IT IS SO ORDERED. A 23 C N STIPULATED REQUEST FOR ENTRY OF F DCONSENTC T O ORDER; CASE NO. I S T R I DECREE: 5:20-CV-09452-NC

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