Car-Freshner Corporation et al v. Air Fresheners, Inc. et al

Filing 52

JUDGMENT in favor of Car-Freshner Corporation, Julius Samann Ltd. against Air Fresheners, Inc., Slawomir M. Warzocha. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JUDGMENT IN A CIVIL CASE
CAR-FRESHNER CO. and
JULIUS SÄMANN, LTD.,
Plaintiffs,

Civil Case No. 7:10-cv-1491

-vsAIR FRESHNERS, INC. d/b/a
SCENT USA; and SLAWOMIR M.
WARZOCHA a/k/a MICHAEL
WARZOCHA,
Defendants.
[X] Decision by Court. This action came to trial or hearing before the Court. The
issues have been tried or heard and a decision has been
rendered.
IT IS ORDERED AND ADJUDGED that Plaintiffs' motion for entry of default
judgment against Defendants (Dkt. No. 14) is GRANTED in part and DENIED in part;
that Defendants' motion to set aside the Clerk's entry of default (Dkt. No. 21) is
GRANTED in part and DENIED in part; that Plaintiffs' motion to strike Defendants'
Answer (Dkt. No. 22) is GRANTED in part and DENIED in part; and that Defendants'
default as to Count VIII of the Complaint is SET ASIDE; that Defendants' Answer is
STRICKEN, except for those parts that apply to Count VIII of the Complaint; and it is
further
ORDERED AND ADJUDGED that Defendants shall IMMEDIATELY cease all use
of, and reference to, "LITTLE TREE," "LITTLE TREES," "MAGIC TREE," and "CAR
FRESHNER," or the phonetic equivalents, with or without punctuation between the
words, as those terms are used to describe Plaintiffs' trademarks with registration
numbers 675,796; 798,701; 1,017,831; and 1,990,039, to promote or refer to air
fresheners on Defendants' web sites, meta tags, search engine listings, any form of
advertising or promotional materials, packaging, and products; and it is further
ORDERED and ADJUDGED that Defendants shall IMMEDIATELY cease all
manufacture, procurement, promotion, distribution, or sale of any air fresheners in the
shape of or incorporating any of Plaintiffs trademarked pine tree designs or that are
otherwise colorable imitations of Plaintiffs' tree design marks, as represented by
trademark registration numbers. 719,498; 1,131,617; 1,781,016; 1,791,233; 3,766,310;
and it is further
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ORDERED AND ADJUDGED that Defendants shall, within SIXTY (60) DAYS of
the August 10, 2012 Decision and Order, surrender to Plaintiffs all materials, including
promotional materials, dies, and tooling, related to the manufacture or promotion of
Plaintiffs' trademarked pine tree-shaped air fresheners, specifically those pine
tree-shaped air fresheners embodied in trademark registration numbers 719,498;
1,131,617; 1,781,016; 1,791,233; 3,766,310; and it is further
ORDERED AND ADJUDGED that Defendants shall, within SIXTY (60) DAYS of
the August 10, 2012 Decision and Order, deliver to Plaintiffs' counsel documentation
showing all pine tree-shaped air fresheners manufactured, produced, sold, or otherwise
distributed by Defendants after September 22, 2003; and it is further
ORDERED AND ADJUDGED that Defendants shall, no later than October 1,
2012, file with the Court and serve on Plaintiffs a report in writing and under oath setting
forth in detail the manner and form in which Defendants have complied with the terms of
this Decision and Order, in accordance with the provisions of 15 U.S.C. § 1116(a).
All of the above pursuant to the Memorandum-Decision & Order of the Honorable
Judge Glenn T. Suddaby, dated the 10th day of August, 2012; and it is further
ORDERED AND ADJUDGED that, pursuant to Rule 68 of the Federal Rules of
Civil Procedure, the defendants having consented to allow Judgment to be taken
against them jointly and severally in this action in the nature of a permanent injunction
against them as described in this Court's Memorandum-Decision and Order dated
August 10, 2012, including an injunction against the manufacture, promotion,
distribution, or sale of the designs depicted in the Offer of Judgment (Docket No. 51); to
pay Plaintiffs one hundred thousand dollars ($100,000) within 30 calendar days of entry
of this Judgment; to inform each employee of Air Fresheners, Inc. d/b/a Scent USA of
the contents of this Judgment within either (a) 10 calendar days of entry of this
Judgment; or (b) 10 calendar days of the beginning of the employee's employment at
Air Fresheners, Inc. d/b/a Scent USA, whichever is later; and if either Defendant
breaches the terms of this Judgment, Defendants shall pay to CFC ten thousand dollars
($10,000.00) per violation of this Judgment, $1 per infringing product produced or
distributed after the date of this Judgment, and Plaintiffs' costs and attorneys fees in
enforcing the Judgment.
DATED:

January 4, 2013

s/ L. Welch
Deputy Clerk

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NOTICE TO LITIGANTS
FILING NOTICE OF APPEAL
This notice is to inform you of the time limitations for filing a Notice of Appeal under
Federal Rules of Appellate Procedure 4 (see below) and of the necessity of filing a
timely motion for extension with in the thirty-day extension period if the Notice of Appeal
is untimely.
Lawrence K. Baerman
Clerk of the Court
Effective 12/1/11:
Rule 4. Appeal as of Right - When Taken
(a) Appeal in a Civil Case
(1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules
4(a)(1)(B), 4(a)(4) and 4(c), the notice of appeal
required by Rule 3 must be filed with the district clerk
within 30 days after entry of the judgment or order
appealed from.
(B) The notice of appeal may be filed by any
party within 60 days after the entry of the judgment or
order appealed from if one of the parties is:
(i) the United States;
(ii) a United States agency;
(iii) a United States officer or employee sued
in an official capacity; or
(iv) a current or former United States officer or
employee sued in an individual capacity for an act or
omission occurring in connection with duties performed
on the United States’ behalf - including all instances in
which the United States represents that person when
the judgment or order is entered or files the appeal for
that person.
(C) An appeal from an order granting or denying
an application for writ of error coram nobis is an appeal
in a civil case for purposes of Rule 4(a).
(2) Filing Before Entry of Judgment. A notice of
appeal filed after the court announces a decision or
order - but before the entry of the judgment or order - is
treated as filed on the date of and after the entry.
(3) Multiple Appeals. If one party timely files a
notice of appeal, any other party may file a notice of
appeal within 14 days after the date when the first
notice was filed, or within the time otherwise prescribed
by this Rule 4(a), whichever period ends later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any
of the following motions under the Federal Rules of Civil
Procedure, the time to file an appeal runs for all parties
from the entry of the order disposing of the last such
remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual
findings under Rule 52(b), whether or not granting the
motion would alter the judgment;
(iii) for attorney’s fees under Rule 54 if the
district court extends the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule
59;
(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is
filed no later than 28 days after the judgment is entered.
(B)(i) If a party files a notice of appeal after
the court announces or enters a judgment - but before it
disposes of any motion listed in Rule 4(a)(4)(A) - the
notice becomes effective to appeal a judgment or order,
in whole or in part, when the order disposing of the last
such remaining motion is entered.
(ii) A party intending to challenge an order
disposing of any motion listed in Rule 4(a)(4)(A) or a
judgment’s alteration or amendment upon such a
motion, must file a notice of appeal, or an amended
notice of appeal - in compliance with Rule 3(c) - within
the time prescribed by this Rule measured from the
entry of the order disposing of the last such remaining
motion.
(iii) No additional fee is required to file an
amended notice.
(5) Motion for Extension of Time
(A) The district court may extend the time to
file a notice of appeal if:
(i) a party so moves no later than 30 days
after the time prescribed by this Rule 4 (a) expires; and
(ii) regardless of whether its motion is filed
before or during the 30 days after the time prescribed
by this Rule 4 (a) expires, that party shows excusable
neglect or good cause.
(B) A motion filed before the expiration of
the time prescribed in Rule 4 (a)(1) or (3) may be ex
parte unless the court requires otherwise. If the motion
is filed after the expiration of the prescribed time, notice
must be given to the other parties in accordance with
local rules.
(C) No extension under this Rule 4 (a)(5)
may exceed 30 days after the prescribed time or 14
days after the date when the order granting the motion
is entered, whichever is later.
(6) Reopening the Time to File an Appeal.
The district court may reopen the time to file an appeal
for a period of 14 days after the date when its order to
reopen is entered, but only if all the following conditions
are satisfied:
(A) the court finds that the moving party did
not receive notice under Federal Rule of Civil Procedure
77(d) of the entry of the judgment or order sought to be
appealed within 21 days after entry;
(B) the motion is filed within 180 days after
the judgment or order is entered or within 14 days after
the moving party receives notice under Federal Rule of

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(b)(3)(A)—becomes effective upon the later of the
following:
(i) the entry of the order disposing of the last
such remaining motion; or
(ii) the entry of the judgment of conviction.
(C) A valid notice of appeal is effective—without
amendment—to appeal from an order disposing of any
of the motions referred to in Rule 4 (b)(3)(A).
(4) Motion for Extension of Time. Upon a finding
of excusable neglect or good cause, the district court
may—before or after the time has expired, with or
without motion and notice—extend the time to file a
notice of appeal for a period not to exceed 30 days from
the expiration of the time otherwise prescribed by this
Rule 4 (b).
(5) Jurisdiction. The filing of a notice of
appeal under this Rule 4 (b) does not divest a district
court of jurisdiction to correct a sentence under Federal
Rule of Criminal Procedure 35(a), nor does the filing of
a motion under 35(a) affect the validity of a notice of
appeal filed before entry of the order disposing of the
motion. The filing of a motion under Federal Rule of
Criminal Procedure 35(a) does not suspend the time for
filing a notice of appeal from a judgment of conviction.
(6) Entry Defined. A judgment or order is
entered for purposes of this Rule 4 (b) when it is
entered on the criminal docket.

Civil Procedure 77(d) of the entry, whichever is earlier;
and
(C) the court finds that no party would be
prejudiced.
(7) Entry Defined.
(A) A judgment or order is entered for
purposes of this Rule 4 (a):
(i) if Federal Rule of Civil Procedure
58(a)(1) does not require a separate document, when
the judgment or order is entered in the civil docket
under Federal Rule of Civil Procedure 79(a); or
(ii) if Federal Rule of Civil Procedure
58(a)(1) requires a separate document, when the
judgment or order is entered in the civil docket under
Federal Rule of Civil Procedure 79(a) and when the
earlier of these events occurs:
• the judgment or order is set forth on a
separate document, or
• 150 days have run from entry of the
judgment or order in the civil docket under Federal Rule
of Civil Procedure 79(a).
(B) A failure to set forth a judgment or order
on a separate document when required by Federal Rule
of Civil Procedure 58(a)(1) does not affect the validity of
an appeal from that judgment or order.
(b) Appeal in a Criminal Case.
(1) Time for Filing a Notice of Appeal.
(A) In a criminal case, a defendant’s notice of
appeal must be filed in the district court within 14 days
after the later of:
(i) the entry of either the judgment or the order
being appealed; or
(ii) the filing of the government’s notice of
appeal.
(B) When the government is entitled to appeal,
its notice of appeal must be filed in the district court
within 30 days after the later of:
(i) the entry of the judgment or order being
appealed; or
(ii) the filing of a notice of appeal by any
defendant.
(2) Filing Before Entry of Judgment. A notice of
appeal filed after the court announces a decision,
sentence, or order—but before the entry of the
judgment or order—is treated as filed on the date of and
after the entry.
(3) Effect of a Motion on a Notice of Appeal.
(A) If a defendant timely makes any of the
following motions under the Federal Rules of Criminal
Procedure, the notice of appeal from a judgment of
conviction must be filed within 14 days after the entry of
the order disposing of the last such remaining motion,
or within 14 days after the entry of the judgment of
conviction, whichever period ends later. This provision
applies to a timely motion:
(i) for judgment of acquittal under Rule 29;
(ii) for a new trial under Rule 33, but if based
on newly discovered evidence, only if the motion is
made no later than 14 days after the entry of the
judgment; or
(iii) for arrest of judgment under Rule 34.
(B) A notice of appeal filed after the court
announces a decision, sentence, or order—but before it
disposes of any of the motions referred to in Rule 4

(c) Appeal by an Inmate Confined in an Institution.
(1) If an inmate confined in an institution files a
notice of appeal in either a civil or a criminal case, the
notice is timely if it is deposited in the institution’s
internal mail system on or before the last day for filing. If
an institution has a system designed for legal mail, the
inmate must use that system to receive the benefit of
this rule. Timely filing may be shown by a declaration in
compliance with 28 U.S.C. § 1746 or by a notarized
statement, either of which must set forth the date of
deposit and state that first-class postage has been
prepaid.
(2) If an inmate files the first notice of appeal in a
civil case under this Rule 4 (c), the 14-day period
provided in Rule 4 (a)(3) for another party to file a notice
of appeal runs from the date when the district court
dockets the first notice.
(3) When a defendant in a criminal case files a
notice of appeal under this Rule 4 (c), the 30-day period
for the government to file its notice of appeal runs from
the entry of the judgment or order appealed from or
from the district court’s docketing of the defendant’s
notice of appeal, whichever is later.
(d) Mistaken Filing in the Court of Appeals. If a
notice of appeal in either a civil or a criminal case is
mistakenly filed in the court of appeals, the clerk of that
court must note on the notice the date when it was
received and send it to the district clerk. The notice is
then considered filed in the district court on the date so
noted.

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