Specialized Bicycle Components, Inc. v. 17 No.1-Own et al

Filing 39

Consent Final Judgment and Permanent Injunction as to Defendant Number 36. Motion 38 to Approve Consent Judgment and Permanent Injunction is Granted. Signed by Judge Robert N. Scola, Jr on 8/18/2017. (kpe)

United States District Court
for the
Southern District of Florida
Specialized Bicycle Components,
Inc., Plaintiff,
v.
17 No.1-Own, and others,
Defendants.

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Case No. 17-61201-CIV-SCOLA

Consent Final Judgment and Permanent Injunction
as to Defendant Number 36
This matter is before the Court on the Plaintiff’s Motion for Entry of
Consent Final Judgment and Permanent Injunction as to Defendant Number
36 (ECF No. 38). The Court has carefully considered the Plaintiff’s Motion, the
record, and is otherwise fully advised in the premises.
Plaintiff Specialized Bicycle Components, Inc. (“Plaintiff”) and against
Defendant, KERRWL (Defendant number 36) a/k/a Xuedai Chen (“Defendant”),
stipulate and consent to the following:
WHEREAS, the Defendant adopted and began using trademarks in the
United States that infringe and dilute the distinctive quality of the Plaintiff’s
various registered trademarks as identified in Paragraph 14 of the Plaintiff’s
Complaint (ECF No. 1) and Schedule “B” thereto (the “Specialized Marks”);
WHEREAS, the Defendant’s use of names and marks which incorporate
one or more of the Specialized Marks is likely to cause confusion as to source
or origin;
WHEREAS, the parties desire to settle and have amicably resolved their
dispute to each of their satisfaction; and
WHEREAS, based upon the Plaintiff’s good faith prior use of the
Specialized Marks, the Plaintiff has superior and exclusive rights in and to the
Specialized Marks in the United States and any confusingly similar names or
marks.
Accordingly, it is ordered and adjudged that the Plaintiff’s motion (ECF
No. 38) is granted. Judgment is hereby entered in favor of the Plaintiff and
against the Defendant as follows:
1.
The Defendant and his officers, agents, servants, employees and
attorneys, and all persons in active concert and participation with them are

hereby permanently restrained and enjoined from intentionally and/or
knowingly:
A.
manufacturing or causing to be manufactured, importing,
advertising, promoting, distributing, selling or offering to sell
counterfeit and infringing goods bearing the Specialized
Marks;
B.
using the Specialized Marks in connection with the sale of
any unauthorized goods;
C.
using any logo and/or layout which may be calculated to
falsely advertise the services or products of the Defendant as
being sponsored by, authorized by, endorsed by, or in any
way associated with the Plaintiff;
D.
falsely representing the Defendant as being connected with
the Plaintiff, through sponsorship or association;
E.
engaging in any act which is likely to falsely cause members
of the trade and/or of the purchasing public to believe any
goods or services of the Defendant are in any way endorsed
by, approved by, and/or associated with the Plaintiff;
F.
using any reproduction, counterfeit, copy, or colorable
imitation of the Specialized Marks in connection with the
publicity, promotion, sale, or advertising of any goods sold
by the Defendant;
G.
affixing, applying, annexing or using in connection with the
sale of any goods, a false description or representation,
including words or other symbols tending to falsely describe
or represent the Defendant’s goods as being those of the
Plaintiff, or in any way endorsed by the Plaintiff;
H.
from unfairly competing with the Plaintiff;
I.
secreting, destroying, altering, removing, or otherwise
dealing with the unauthorized products or any books or
records which contain any information relating to the
importing,
manufacturing,
producing,
distributing,
circulating, selling, marketing, offering for sale, advertising,
promoting, renting or displaying of all unauthorized products
which infringe the Specialized Marks; and
J.
effecting assignments or transfers, forming new entities or
associations or utilizing any other device for the purpose of
circumventing or otherwise avoiding the prohibitions set
forth in subparagraphs (A) through (I).
2.
The Plaintiff shall have the right to seek sanctions for contempt,

compensatory damages, injunctive relief, attorneys’ fees, costs, and such other
relief deemed proper in the event of a violation or failure by the Defendant to
comply with any of the provisions hereof. The prevailing party in any such
proceeding shall be entitled to recover its attorneys’ fees and costs.
3.
This Consent Final Judgment shall be conclusive for purposes of
collateral estoppel regarding all issues that have been or could have been
brought on the same operative facts.
4.
Each party shall bear its own attorneys’ fees and costs.
5.
This Court will retain continuing jurisdiction over this cause to
enforce the terms of this Consent Final Judgment.
6.
Amazon Payments, Inc. (“Amazon”) shall (1) disburse the funds of
the Defendant restrained pursuant to the Court’s Order Granting Ex Parte
Temporary Restraining Order and Setting Hearing, dated June 20, 2017 (ECF
No. 9) as directed by the Plaintiff’s counsel; and (2) upon transfer of the funds
to the Plaintiff as required herein, Amazon shall remove any restraints that
were placed on the Defendant’s account pursuant to Court’s Order Granting Ex
Parte Temporary Restraining Order and Setting Hearing, dated June 20, 2017
(ECF No. 9), and return the Defendant’s account back to an unrestrained
status in accordance with Amazon’s operating procedures and contract for
services with the Defendant.
Done and ordered, in chambers, at Miami, Florida, on August 18, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge