Filed: Oct. 22, 2015
Latest Update: Oct. 22, 2015
Summary: FINAL CONSENT JUDGMENT JAMES V. SELNA , District Judge . Plaintiff, GENERAL MARKETING CAPITAL, INC., ("GMCI") and Defendants, LYNN YENKO ZOIOPOULOS aka Lynn Shelton-Zoiopoulos, Lynn Y. Shelton, Lynn Yenko, Lynn Yenko Zoiopoulos, Lynn Yenko Shelton-Zoiopoulos and Lynn Zoiopoulos ("ZOIOPOULOS"), YENKO ENTERPRIZES, INC., an Illinois corporation ("YEI") and NEXT GENERATION SPORTS CARS, INC., A Michigan corporation ("NGSCI") (collectively "the Parties"), having entered into a contemporaneously e
Summary: FINAL CONSENT JUDGMENT JAMES V. SELNA , District Judge . Plaintiff, GENERAL MARKETING CAPITAL, INC., ("GMCI") and Defendants, LYNN YENKO ZOIOPOULOS aka Lynn Shelton-Zoiopoulos, Lynn Y. Shelton, Lynn Yenko, Lynn Yenko Zoiopoulos, Lynn Yenko Shelton-Zoiopoulos and Lynn Zoiopoulos ("ZOIOPOULOS"), YENKO ENTERPRIZES, INC., an Illinois corporation ("YEI") and NEXT GENERATION SPORTS CARS, INC., A Michigan corporation ("NGSCI") (collectively "the Parties"), having entered into a contemporaneously ex..
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FINAL CONSENT JUDGMENT
JAMES V. SELNA, District Judge.
Plaintiff, GENERAL MARKETING CAPITAL, INC., ("GMCI") and Defendants, LYNN YENKO ZOIOPOULOS aka Lynn Shelton-Zoiopoulos, Lynn Y. Shelton, Lynn Yenko, Lynn Yenko Zoiopoulos, Lynn Yenko Shelton-Zoiopoulos and Lynn Zoiopoulos ("ZOIOPOULOS"), YENKO ENTERPRIZES, INC., an Illinois corporation ("YEI") and NEXT GENERATION SPORTS CARS, INC., A Michigan corporation ("NGSCI") (collectively "the Parties"), having entered into a contemporaneously executed Agreement for settlement of the above-captioned civil action and having filed herewith their Joint Motion for Entry of First Amended Complaint and Consent Judgment as to All Defendants, and having thereby agreed, without condition, to the entry of this Consent Judgment, it is AGREED, ORDERED, ADJUDGED AND DECREED as follows:
1. This court has subject matter jurisdiction over this action and personal jurisdiction over GMCI, ZOIOPOULOS, YEI and NGSCI.
2. Judgment is hereby entered in favor of GMCI and against ZOIOPOUPOS, YEI and NGSCI on all claims and defenses pleaded in the Complaint.
3. ZOIOPOULOS, YEI and NGSCI waive all defenses and counterclaims which have or could have been raised in this action including but not limited to all defenses and counter claims for invalidity, non-infringement, and/or unenforceability of the trademark rights in suit.
4. GMCI is the owner of common law trademarks YENKO, YENKO/SC and sYc as used in connection with automotive goods, services and memorabilia as well as the following United States Trademark Registrations and pending United States Trademark Applications (such common law, registered and pending trademarks being hereinafter collectively referred to as the "Yenko Trademarks"):
Registration Mark Filing Registrati Goods
or Date on Date
Application
No.
3161668 YENKO 02/17/05 10/24/06 Clothing and headwear
accessories, namely shirts,
jackets and caps
3097652 YENKO 02/17/05 05/30/06 Automobiles and
Automotive parts and
accessories, namely, wheel
caps, spoilers and
emblems
3779462 YENKO 04/24/08 04/20/10 Automotive vehicle parts,
namely, ornamentation in
the nature of decorative
metal emblems, hoods,
exterior trim, rear spoilers,
body panels, badges and
engine valve covers;
Automotive vehicle
interior parts, namely,
steering wheels, Drinking
glasses and mugs,
Clothing, namely, shirts
and hats
3812169 YENKO 04/04/07 06/29/10 Motor vehicle accessories,
namely, automobile body
emblems and license plate
frames
3585627 01/3/08 03/10/09 Metal parts for motor
vehicles, namely,
decorative metal
automotive emblems,
Decals, Glass mugs,
Clothing, namely, t-shirts
and caps
2314585 YENKO 02/08/99 02/01/00 Mail order catalogue
services featuring parts
and accessories for the
restoration of classic
automobiles; wholesale
distributorships featuring
parts and accessories for
the restoration of classic
automobiles
2049857 YENKO 07/26/95 04/01/97 Toy cars
4063536 YENKO 04/04/07 11/09/201 Motor land vehicles;
1 motor vehicle accessories,
namely, license plates
3607796 SYC 04/14/09 04/14/09 Automotive parts and
accessories, namely, seat
upholstery
3083835 12/09/04 04/18/06 Vinyl decals
3842228 10/22/08 08/31/10 Wearable garments and
clothing, namely, shirts
86431834 YENKO/SC 10/22/14 Pending Automotive parts and
accessories, namely
striping kits and decals for
automobiles.
86441441 10/31/14 Pending Automotive parts and
accessories, namely,
decals for automobiles
5. The Yenko Trademarks are valid and enforceable by GMCI.
6. YEI will cease doing business and will be voluntarily dissolved within ten (10) days of this Consent Judgment.
7. The YEI website at www. http://www.yenko-enterprizes.com/and all YEI-associated social media sites/pages, including but not limited to http://www.facebook.com/pages/YENKO-Enterprizes-The-Next Generation/1394141777564877, will be permanently removed and taken down within ten (10) days of this Consent Judgment
8. ZOIOPOULOS, YEI (until such time as its permanent dissolution has been completed) and NGSCI, as well as their officers, agents, servants, employees, attorneys, and those persons or entities in active concert or participation with them who receive actual notice of this PERMANENT INJUNCTION, are hereby permanently enjoined from the following:
a) any and all further use of "YENKO ENTERPRIZES" or the word "YENKO" alone or in combination with other words or images, as a tradename, corporate name, company name, other business entity name, fictitious business name or other trading designation in relation to: the designing, building, advertising, promoting, selling, leasing, modifying or distributing of any motor vehicles, automobiles, automotive goods, automotive services or memorabilia, including but not limited to automobiles, automotive parts, automotive accessories, automotive equipment, decals, emblems, license plates, license plate frames, striping, emblems, body panels, hoods, valve covers, air filter covers, wheel covers, wheel center covers, grills, door sills, seat upholstery, ornaments, wearing apparel, shirts, caps, key fobs, posters, cushions and pillows, drinking mugs and glassware.
b) any and all further registration or use of "YENKO ENTERPRIZES" or the word "YENKO" alone or in combination with additional words or characters as an internet domain name or label in association with any website related to the designing, building, advertising, promoting, selling, leasing, modifying or distributing of any motor vehicles, automobiles, automotive goods, automotive services or memorabilia, including but not limited to: automobiles, automotive parts, automotive accessories, automotive equipment, decals, emblems, license plates, license plate frames, striping, emblems, body panels, hoods, valve covers, air filter covers, wheel covers, wheel center covers, grills, door sills, seat upholstery, ornaments, wearing apparel, shirts, caps, key fobs, posters, cushions and pillows, drinking mugs and glassware.
c) using any or all of the Yenko Trademarks or any reproduction, counterfeit, copy or colorable imitation thereof, in commerce or in relation to the designing, building, advertising, promoting, selling, leasing, modifying or distributing of any motor vehicles, automobiles, automotive goods, automotive services or memorabilia, including but not limited to automobiles, automotive parts, automotive accessories, automotive equipment, decals, emblems, license plates, license plate frames, striping, emblems, body panels, hoods, valve covers, air filter covers, wheel covers, wheel center covers, grills, door sills, seat upholstery, ornaments, wearing apparel, shirts, caps, key fobs, posters, cushions and pillows, drinking mugs and glassware;
d) using any of the Yenko Trademarks or any reproduction, counterfeit, copy or colorable imitation thereof as a meta tag or searchable term in connection with any publication or internet website which relates to any the designing, building, advertising, promoting, selling, modifying or distributing of any automobiles, automotive goods, automotive services or memorabilia, including but not limited to automobiles, automotive parts, automotive accessories, automotive equipment, decals, emblems, license plates, license plate frames, striping, emblems, body panels, hoods, valve covers, air filter covers, wheel covers, wheel center covers, grills, door sills, seat upholstery, ornaments, wearing apparel, shirts, caps, key fobs, posters, cushions and pillows, drinking mugs and glassware;
e) adopting, using, incorporating, forming, establishing, registering or maintaining any trade name, corporate name, company name, internet domain name or other trading designation that contains or consists of the term YENKO, any other Yenko Trademark or any reproduction, counterfeit, copy or colorable imitation thereof, provided however that ZOIOPOULOS is not hereby barred or enjoined from using her true personal name as a trade name, corporate name, company name, internet domain name or other trading designation for her licensed and lawful practice of medicine or her other business endeavors which are not involved in the designing, building, advertising, promoting, selling, leasing, modifying or distributing of any automobiles, automotive goods, automotive services or memorabilia, including but not limited to automobiles, automotive parts, automotive accessories, automotive equipment, decals, emblems, license plates, license plate frames, striping, emblems, body panels, hoods, valve covers, air filter covers, wheel covers, wheel center covers, grills, door sills, seat upholstery, ornaments, wearing apparel, shirts, caps, key fobs, posters, cushions and pillows, drinking mugs and glassware; and
f) making, displaying or publishing, or continuing to make, display or publish, any disparaging image or statement about GMCI and/or its licensee(s) or their respective products, affiliates, owners, officers, directors, employees, vendors or customers.
9. For purposes of the PERMANENT INJUNCTION set forth in Paragraph 8 above, the term "disparaging image or statement' shall mean any statement (whether written or oral), photograph, drawing, video, image or other form of communication which would reasonably be understood by those who receive or view it as communicating or alleging any of the following: a) that GMCI and/or its licensee(s) or their respective products, affiliates, owners, officers, directors, employees, vendors or customers have stolen, misappropriated, wrongfully acquired, otherwise lack rightful ownership and control of, or are improperly using and licensing any or all of the Yenko Trademarks; b) that automobiles or other goods designed, built or sold by GMCI and/or its licensee(s) or their respective affiliates, owners, officers, directors, employees, vendors and customers are not "Yenko inspired," not well designed, not well built, flawed, unattractive, ugly, deficient, inauthentic, unauthorized, lacking of any required or unrequired approval, sanction, credential or endorsement or blessing from either ZOIOPOULOS, the Estate or Donald Yenko or any other Yenko family member or heir.
10. In accordance with the PERMANENT INJUNCTION set forth in Paragraph 8 above, ZOIOPOULOS, YEI (until such time as its permanent dissolution has been completed) and NGSCI shall, no later than (10) days after the date of this Consent Judgment, complete the following:
a) To the extent reasonably possible, take down from the internet and cease and desist from further publishing on social media or elsewhere all comments, statements, publications, interviews, videos, promotional items and advertisements which refer to the sale, or intended future development or sale of any YENKO vehicle having a model year later than 1981 or which constitute a "disparaging image or statement" as defined above;
b) take down from the internet and cease and desist from publishing on social media or elsewhere all images of the Next Generation Sports Cars, Inc. "Evil Twin" Chevrolet Camaro bearing a "YENKO Z" license plate or any other labeling or affixation of the word YENKO or any Yenko Trademark; and;
c) cease and desist from selling, offering for sale, distributing, shipping, advertising, promoting, publishing or displaying t shirts or clothing items bearing any of the Yenko Trademarks including but not limited to the YENKO-THE NEXT GENERATION t shirts referenced in the Complaint in this action.
11. GMCI's claims and causes of action pleaded in the Complaint in this action, as well as all defenses of ZOIOPOULOS, YEI and/or NGSCI to such claims and causes of action are hereby dismissed with prejudice, provided, however that any of GMCI's claims and causes may be reasserted against ZOIOPOULOS, YEI and/or NGSC, or against any entity or individual controlled by or acting in concert with ZOIOPOULOS, YEI and/or NGSC with respect to any action by GMCI seeking to enforce this judgment.
12. Plaintiff GMCI and Defendants ZOIOPOULOS, YEI and NGSC forever, fully and finally discharge each other, and each and all of their employees, agents, representatives, heirs, executors, administrators, servants, vendors, and customers with respect to any and all claims, actions, causes of action, rights to contribution or indemnity (express or implied), demands, rights, damages, costs, obligations, expenses and liabilities of any kind asserted, or which could have been asserted in the Civil Action. This includes an express waiver of California Civil Code § 1542, which states:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
13. This Final Consent Judgment is to be governed and construed in accordance with the laws of the State of California without giving effect to conflict of law principles.
14. Each party is to bear its own costs and attorney fees.
15. This Court retains jurisdiction over the subject matter and the Parties to enforce this Order
IT IS SO STIPULATED AND AGREED:
IT IS SO ORDERED AND DECREED, AND FINAL JUDGMENT IS HEREBY ENTERED.
