Avlon Industries, Inc. v. The Beauty Max et al

Filing 31

CONSENT JUDGMENT and PERMANENT INJUNCTION. Signed by Magistrate Judge David Keesler on 3/20/2012. (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
AVLON INDUSTRIES, INC.,

)
)
Plaintiff,
)
)
v.
)
)
THE BEAUTY MAX and DOES 1-5,
)
)
Defendants.
)
____________________________________)

Civil Action No. 3:11-CV-423

CONSENT JUDGMENT AND PERMANENT INJUNCTION
The parties in the above captioned proceeding have resolved their dispute pursuant to a settlement
agreement which contemplates, inter alia, the entry of the following Consent Judgment and
Permanent Injunction in favor of Plaintiff and against Defendants. By consent of the parties, the
Court hereby enters judgment in the form set forth herein.
NOW, THEREFORE, it is ORDERED, ADJUDGED and DECREED:
1. Avlon is an Illinois corporation with its principal place of business at 1999 North 15th
Avenue, Melrose Park, Illinois 60160.
2. Defendant The Beauty Max is a North Carolina corporation having a place of business at 228
Eastway Drive, Charlotte, North Carolina 28213.
3. 1The Court has personal jurisdiction over the parties in this case, and venue is proper within
this judicial district pursuant to 28 U.S.C. § 1391(b).
4. The Court has subject matter jurisdiction pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§
1331, 1338, and 1367.
5. Avlon is the owner of numerous trademarks which it uses in connection with its line of
professional grade hair care products, including, but not limited to, United States Trademark

Registration No. 1,376,804, No. 1,767,128, and No. 1,763,923 (collectively “the Avlon
Marks”).
6. Avlon’s line of professional grade hair care products includes, but is not limited to, the
AFFIRM® Conditioning Relaxer System kit (hereinafter, the “AFFIRM® Product Kit”).
7. Defendants have altered, tampered with, and made unauthorized sales of product, including
the AFFIRM® Product Kit, bearing one or more of the Avlon Marks.
8. Avlon has alleged that Defendants’ actions constitute, inter alia, trademark infringement,
unfair competition, and unfair and deceptive trade practices, the particulars of which
allegations are more fully set forth in the Complaint filed in this lawsuit.
9. Avlon and the Defendants each have consented to the entry of judgment in this matter in
favor of Avlon and against Defendants with respect to each of Avlon’s claims against
Defendant.
10. Accordingly, the Court finds that Defendants’ alteration, tampering, and unauthorized sales
of Avlon’s trademarked products, including, but not limited to, AFFIRM® branded products,
constitute: trademark counterfeiting, trademark infringement, and unfair competition under
the law of the United States, Title 15, United States Code; trademark infringement,
trademark counterfeiting, and deceptive or unfair trade practice under the North Carolina
Unfair and Deceptive Trade Practices and the Trademark Registration Act § 75-1 and § 8011, et seq., and trademark infringement and unfair competition under the common law of the
state of North Carolina.
11. Avlon and Defendants have further agreed to the entry of a Permanent Injunction in favor
of Avlon and against Defendants.

12. The Court finds that Defendants’ conduct has caused, and in the absence of relief from the
Court will, continue to cause, irreparable injury to the value and goodwill of the Avlon
Marks; that the injury is not readily compensable by traditional remedies at law; that the
balance of the hardships with respect to the issuance of an injunction falls in the favor of
Avlon; and that the public interest will be served by issuance of an injunction.
13. Accordingly, Defendants, along with their agents, servants, employees, representatives,
subsidiaries, successors, and assigns, and all persons acting in concert or participation with
them are PERMANENTLY ENJOINED and restrained from:
a. imitating, copying, or making any other infringing use or infringing distribution of
hair care products or items protected by any of Avlon’s trademarks, including, but
not limited to, Trademark Reg. No. 1,376,804 (AFFIRM®);
b. manufacturing, assembling, producing, distributing, offering for distribution,
circulating, selling, offering for sale, advertising, importing, promoting, or displaying
any hair care or salon product item or thing bearing any simulation, reproduction
counterfeit, copy, or colorable imitation of any Avlon product protected by any of
Avlon’s trademarks, including, but not limited to, Reg. No. 1,376,804 (AFFIRM®);
c. using any simulation, reproduction, counterfeit, copy or colorable imitation of any
of Avlon’s trademarks, including, but not limited to, Reg. No. 1,376,804
(AFFIRM®), in connection with the manufacture, distribution, offering for
distribution, sale, offering for sale, advertisement, promotion, or display of any hair
care or salon product, item or thing not authorized or licensed by Avlon;
d. using any false designation of origin or false description which can or is likely to
lead the trade, or public or individuals erroneously to believe that any hair care or

salon product, item or thing has been manufactured, produced, distributed, offered
for distribution, advertised, promoted, displayed, licensed, sponsored, approved, or
authorized by or for Avlon, when such is not true in fact;
e. engaging in any other activity constituting an infringement of any of Avlon’s
trademarks, including, but not limited to, Reg. No. 1,376,804 (AFFIRM®), or of
Avlon’s rights in, or rights to use or to exploit Avlon’s trademarks, or constituting
any dilution of Avlon’s name, reputation, or goodwill; and
f. assisting, aiding, or abetting any other person or business entity in engaging in or
performing any of the activities referred to in paragraph 15(a-e) above.
14. This Consent Judgment and Permanent Injunction shall be enforceable by Avlon and its
successors and assigns, and shall be enforceable against Defendants and their successors and
assigns.
15. Each party shall bear its own costs and attorneys’ fees.
ENTERED.
Signed: March 20, 2012

CONSENT TO ENTRY OF JUDGMENT AND INJUNCTION
_______________________ hereby consents to the entry of judgment in this action in the form
specified in the foregoing pages.
________________________
Date

__________________________________
By:___________________

STATE OF ____________________
ss.
COUNTY OF __________________

I, ______________________________________, a Notary Public for said County and State do
hereby certify that, on the date below, _________________, personally appeared before me and
signed the foregoing instrument.
This _______ day of ________________________, ______.

________________________________________ (Notary Public)
Notary’s Official Signature

________________________________________, Notary Public
Notary’s printed or typed name

My commission expires: ____________

CONSENT TO ENTRY OF JUDGMENT AND INJUNCTION
________________________ hereby consents to the entry of judgment in this action in the form
specified in the foregoing pages.
________________________
Date

__________________________________
By:____________________

STATE OF ____________________
ss.
COUNTY OF __________________

I, ______________________________________, a Notary Public for said County and State do
hereby certify that, on the date below, _________________, personally appeared before me and
signed the foregoing instrument.
This _______ day of ________________________, ______.

________________________________________ (Notary Public)
Notary’s Official Signature

________________________________________, Notary Public
Notary’s printed or typed name

My commission expires: ____________

APPROVED AS TO FORM AND ENTRY REQUESTED:

____________________________
Matthew J. Ladenheim
(NC State Bar No. 29309)
TREGO HINES & LADENHEIM, PLLC
9300 Harris Corners Parkway Suite 210
Charlotte, North Carolina 28269
Phone: [phone]
Fax: [phone]
[e-mail]
4000
Counsel for Plaintiff

__________________________
Richard M. McDermott
(NC State Bar No. 21201)
Jeffrey M. Connor
(NC State Bar No. 36344)
ALSTON & BIRD LLP
Bank of America Plaza
101 South Tryon Street, Suite 4000
Charlotte, North Carolina 28280Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Counsel for ______