Filed: Jul. 02, 2018
Latest Update: Jul. 02, 2018
Summary: PERMANENT INJUNCTION DAVID O. CARTER , District Judge . Having considered the stipulation of Plaintiff Kennedy Marketing Group, LLC ("KMG") and Defendant Ideal Direct Ad Group, Inc. ("Ideal") and good cause appearing, the Court hereby finds and orders as following. Findings of Fact 1. The Court has subject matter jurisdiction over this action and personal jurisdiction over the parties to this action. 2. The Court finds from the Complaint and Stipulation of the parties: a. KMG has regis
Summary: PERMANENT INJUNCTION DAVID O. CARTER , District Judge . Having considered the stipulation of Plaintiff Kennedy Marketing Group, LLC ("KMG") and Defendant Ideal Direct Ad Group, Inc. ("Ideal") and good cause appearing, the Court hereby finds and orders as following. Findings of Fact 1. The Court has subject matter jurisdiction over this action and personal jurisdiction over the parties to this action. 2. The Court finds from the Complaint and Stipulation of the parties: a. KMG has regist..
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PERMANENT INJUNCTION
DAVID O. CARTER, District Judge.
Having considered the stipulation of Plaintiff Kennedy Marketing Group, LLC ("KMG") and Defendant Ideal Direct Ad Group, Inc. ("Ideal") and good cause appearing, the Court hereby finds and orders as following.
Findings of Fact
1. The Court has subject matter jurisdiction over this action and personal jurisdiction over the parties to this action.
2. The Court finds from the Complaint and Stipulation of the parties:
a. KMG has registered federal copyrights and a trademark and claims specified trade dress;
b. KMG asserts and presents evidence that Ideal infringed on the claimed trade dress and/or registered copyrights, trademark and/or;
c. KMG asserts that a substantial likelihood of success on the merits exists regarding its claims against Ideal.
d. KMG asserts and presents evidence that its trade dress includes the combination of or substantial similarities to: a bi-fold and/or vertical fold brochure; with messages similar to KMG's copyrights (i.e., using copyright language such as "trade keys", "toss us the keys", etc.) and format and order similar to KMG's works, and the use of a business card and handwritten sticky note ("KMG Trade Dress"). KMG asserts that (1) its trade dress is inherently distinctive or has become distinctive through secondary meaning; (2) there is a likelihood of confusion among consumers as to the source of the competing products; and (3) the trade dress is nonfunctional.
Conclusions of Law and Permanent Injunction
Rather than litigate the foregoing assertions, which Ideal has disputed, the Parties have reached a settlement pursuant to a Court ordered mediation, whereby they have stipulated to a Permanent Injunction against Ideal and all persons acting as agents of or in concert with it, directly or indirectly, which the Court adopts and pursuant to which the Court concludes as follows:
1. Ideal is enjoined from using, disclosing and/or infringing on KMG copyrights, trademarks and Trade Dress at issue in this Action, whether federally registered or arising at common law;
2. Ideal is enjoined from using the advertisement at issue in this lawsuit;
3. Ideal is enjoined from using the registered trademark sticky note or the words "see me for a great deal";
4. Ideal shall not utilize any promotional mailers confusingly similar to KMG's mailers, including mailers featuring in any non-infringing mailer or work a business card and handwritten sticky note. However, Ideal will not be found to infringe on KMG's trade dress by creating mailers or works featuring: a non-bi-fold or vertical fold mailer brochure; using photo(s) of vehicle(s); using whatever quality of paper and printing; and using entirely different messages, slogans (i.e., provided Ideal cannot use copyrighted language such as "trade keys", "toss us the keys", etc.), formats or orders of text, than KMG and its proprietary works.
IT IS SO ORDERED.
