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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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: [phone]
Facsimile: [phone]

Molly A. Jones (SBN 301419)
[e-mail]
CROWELL & MORING LLP
3 Embarcadero Center, 26th Floor
San Francisco, CA 941 I I
Telephone: [phone]
Facsimile: [phone]

Virginia Wolk Marino (Illinois Bar No. 629799 I; pro hac vice to be submitted)
[e-mail]
Andrew J. Avsec (Illinois Bar No. 6292313; pro hac vice to be submitted)
[e-mail]
BRINKS GILSON & LIONE
NBC Tower - Suite 3600
455 N. Cityfront Plaza Drive
Chicago, Illinois 60611
Telephone: [phone]
Facsimile: [phone]
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

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CROWELL
& MORI G LLP

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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

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STIPULATED REQUEST FOR ENTRY OF
CONSENT DECREE; ORDER; CASE NO. 5
20-CV-09452-NC

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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.
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Each party shall bear its own attorney's fees and costs incurred in connection with

this action and all rights of appeal are waived.
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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.
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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

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CROWELL
& MORING LLP
ATTPRNn, AT LAW

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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
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to enter into Ihc terms and conditions of this l >rorosctll Consent Dc::crec.

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provisions of lhi� Consent Decree. including over an} claim that the Defondants have violated any
term of this Consent Decree.

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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
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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:

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c:Pf)<f.e

By:

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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

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Dated: April 8.. 2021

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'!';)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

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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

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IT IS FURTHER ORDERED that the Court shall retain jurisdiction over the Parties for the

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sole purpose of enforcing compliance by the Plaintiff and Defendant with the terms of the Consent

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Decree.

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IT IS FURTHER ORDERED that upon approval and entry of this Consent Decree by the

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Court this Consent Decree shall constitute a final judgment between Emergent and the Defendants.

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The above-captioned action against Defendants is dismissed with prejudice and all calendared dates

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are hereby vacated.

S

UNIT
ED

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April 28
Dated: ____, 2021

NO

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Jud

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FO

Honorable Nathanael M. Cousins
ins
l M Cous
United StatesgeMagistrate .Judge
Nathanae

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IT IS SO ORDERED.

A

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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