Bajer Design & Marketing, Inc v. Fab Starpoint LLC et al

Filing 23

MOTION by Plaintiff Bajer Design & Marketing, Inc for judgment Joint Motion For Consent Judgment (Scallan, Stephen)

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1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS 2 3 4 5 BAJER DESIGN & MARKTING, INC., a Wisconsin corporation, Case No.: 08-CV-6655 Judge Gettleman Plaintiff v. 6 York FAB STARPOINT LLC, a New 7 Corporation, and FASHION ACCESSORY BAZAAR LLC, a New York Corporation, 8 Defendants. 9 10 CONSENT JUDGMENT 11 The Plaintiff, BAjER DESIGN & 1:LARKETING, INC., ("Plaintiff") and the Defendants, FAB 12 STARPOINT LLC and FASHION ACCESSORY BAZAAR LLC. ("Defendants"), having agreed to 13 the entry of this consent judgment, it is ORDERED, ADJUDGED AND DECREED as follows: 14 15 1. This court has jurisdiction over the subject matter of this action and jurisdiction over both 16 17 the Plaintiff and Defendants. 18 2. judgment is hereby entered in favor of Plaintiff and against Defendants on Phúntiff's claims of infringement of United States Patent Nos. 5,964, 533 and RE37, 924; trademark infringement; unfair competition; false designation of origin; common law trademark 19 20 21 infringement; common law unfair competition; and violation of the Illiois Consumer Fraud Act. 22 23 24 25 3. Defendants waive all defenses and counterclaims which cOlùd have been raised in this action including al defenses and counterclaims for inv,ùidity, non-infringement, and/or unenforceability of the patents-in-siút. 26 27 28 4. United States Patent Nos. 5,964,533 and RE37, 924 are valid and enforceable. 1 i 2 3 5. United States Trademark Registrations, Fed. Reg. No. 2,276,917, for the mark POP OPENcI for use on a "collapsible containers" and Fed. Reg. No. 2,271,373, for the mark POP-UPS!CID for use on "hampers" are vald and enforceable. 4 5 6 7 8 6. Plaintiff's claims for damages and attorney fees with respect to trademark infringement, unf,úr competition, false designation of origin, common law trademark infringement, common law untàir competition, and violation of the Illnois Consumer Fraud Act are 9 10 11 dismissed with prejudice, provided, however, that any such cLúms shall be preserved with respect to any action by any Defendant after the date of entry of judgment. 12 13 7. / Plaintiff's claims fÒr damages and attorney fees \vith respect to patent infringement are dismissed with prejudice, provided, however, that any such claims shall be preserved with 14 15 respect to any infringement of the patents-in-suit by either Defendant after the date of entry of judgment. 16 17 18 8. Each party is to bear its own costs and attorney fees. 19 9. Defendants, their officers, agents, serv,ilts, employees, attorneys, and those persons or entities in active concert or participation with them who receive actual notice of this 20 21 PERMANENT INJUNCTION, are hereby permanently enjoined from making, using, sellng, offering to sell or importing, or inducing others to make, use, sell, offer to sell, or 22 23 import foldable hampers and collapsible cont,úners that infringe upon at least one claim of United States Patent Nos. 5,964,533 and RE37,924, including: a "Pop-Up Hamper" 24 25 (Complaint Exhibit 5), absent Defendants purchasing foldable containers from Plaintiff or Defendants being granted a license by Plaintiff under United States Patent No. 5,964,533 26 27 28 and United States Patent No. RE37, 924, and Defendants not being in any uncured breach of the terms or conditions of any such license so granted or purchase made. 2. 1 2 3 10. This PERivLANENT INJUNCTION shall reimún in effect until anyone of the following events occurs: (1) the expiration of United States Patent No. 5,964,533 and United States 4 5 Patent No. RE37, 924 or (2) all of the cLúms of United States Patent No. 5,964,533 and United States Patent No. RE37, 924 are held to be invald by a tînal order of a court of competent jurisdiction that has not or cannot be appealed. In the event that fe\,ver than all 6 7 8 of the claims of United States Patent No. 5,964,533 and United States Patent No. RE37, 924 (or claims added during reissue or reexamination of those patents) are cancelled or are 9 10 11 held invalid or unenforceable in a final order that has not or cannot be appealed, and then Defendants shall not be precluded from seeking modification of this PERi\-IANENT INJUNCTION, upon a showing by Defendants of non-infringement of such claims that rema11. 12 13 14 15 11. Defendants, their oftîcers, agents, servants, employees, attorneys, and those persons or entities in active concert or participation with them who receive actual notice of this 16 17 18 19 PERMANENT INJUNCTION, are also hereby permanently enjoined from using in commerce any reproduction, counterfeit, copy, or colorable imitation of Plaintiff's trademarks POP-UPS!(R) ,ind POP OPENtE) including the terms POP UP or POP-UP or POP-OPEN in connection with the sale, offering for sale, or distribution, or advertising of foldable hampers and collapsible containers until such time as Defendants can prove that 20 21 Plaintiff has ceased use of its POP-UPS! and POP OPEN trademark or colorable imitation thereof for a period of three (3) consecutive years, absent Defendants being granted a license by Plaintiff under its POP-UPS! trademark and Defendants not being in any 22 23 24 25 uncured breach of the terms or conditions of any such license so granted. 26 12. This Judgment has been unconditionally accepted by authorized representatives of Plaintiff 27 28 and Defendants. 3. 1 13. The court retains jurisdiction to enforce this Order. 2 3 Entered this day of 2009. 4 5 6 7 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. WE ASK FOR TilS: Counsel for Plaintiff Josep A. Kromholz Ryan Kromholz & Manion, S. C. P.O. Box 26618 Milwaukee, WI 53226-0618 Telephone (262) 783-1300 Facsimile (262) 783-1211 J~ ~ii uval H. Marcus, Esq. REISMAN, P.C. OTTIEB, RACKMAN & 270 Madison Avenue, 8th Floor New York, NY 10016 Telephone (212) 684-3900 x241 Facsimile (212) 684-3999 An rew Staes Steven Scallan :l~ Staes & Scallan, LLC. 111 W. Washington, Suite 1631 Chicago, IL 60602 Telephone (312) 201-8969 Facsimile (312) 201-9233 (local counsel for Plaintiffs) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AJER DESIGN & MAKETING, INC., a Wisconsin corporation, Plaintiff v. Case No.: 08-CY-6655 Judge Gettleman BAZAA LLC, a New York Corporation, Defendants. Corporation, and FASHION ACCESSORY AB STAROINT LLC, a New York JOINT MOTION FOR ENTRY OF CONSENT JUDGMENT The Plaintiff, Bajer Design & Marketing, Inc., ("Bajer") the Defendants, FAB Starpoint LLC and Fashion Accessory Bazaar LLC, have agreed to the entry of the consent judgment that is attached to this motion. Entry of the consent judgment by this court is respectfully requested. And it is so ORDERED. ENTERED this day of , 2009. UNITED STATES DISTRICT JUDGE

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