FINAL CONSENT JUDGMENT AND PERMANENT INJUNCTION AGAINST THE MADE GROUP, LLC D/B/A NICECYCLE.COM [14]
DAVID O. CARTER, District Judge.
Plaintiff Monster Energy Company ("Monster Energy Company") and Defendant The Made Group, LLC d/b/a Nicecycle.com, ("Nicecycle") consent and agree to the terms and conditions of this Final Consent Judgment and Permanent Injunction.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
1. The Court has personal jurisdiction over each of the parties to this action. The Court also has subject matter jurisdiction over this action pursuant to 15 U.S.C. §§ 1116 and 1121 and 28 U.S.C. §§ 1331, 1338(a), 1367(a). Venue is proper in this Judicial District pursuant to 28 U.S.C. § 1391(b).
2. Monster Energy Company is a corporation organized and existing under the laws of the State of Delaware, having a principal place of business at 1 Monster Way, Corona, California 92879. Monster Energy Company is in the business of developing, marketing, selling, and distributing beverages, including energy drinks.
3. The Made Group LLC is a limited liability company organized and existing under the laws of the State of Michigan, having a principal place of business at 209 W. Main Street, Unit #104, Brighton, Michigan 48116, and doing business as Nicecycle. Nicecycle operates the website www.nicecycle.com and it advertises and sells, among other things, motorcycle fairings, brake and clutch levers, gas caps, sport bike parts, cruiser parts, exhausts, exhaust parts, and helmets.
4. Monster Energy Company filed the Complaint in this lawsuit on January 15, 2014, and Nicecycle was personally served with the Complaint on January 17, 2014.
5. Nicecycle agrees that the following United States Trademark Registrations owned by Monster Energy Company are valid and enforceable:
6. Nicecycle agrees that as a result of Monster Energy Company's substantial and continuous use of Monster Energy Company's registered trademarks, Monster Energy Company is also the owner of common-law rights in the marks (collectively, "Monster Energy Company's trademarks").
7. Nicecycle agrees that the following United States Copyright Registrations owned by Monster Energy Company for works that feature Monster Energy Company's mark ("Claw Icon Mark") are valid and enforceable: Registration No. VA 1-789-900 registered on October 11, 2011, Registration No. VA 1-727-577 registered on August 2, 2010, Registration No. VA 1-749-215 registered on November 1, 2010, and Registration No. VA 1-737-654 registered on September 3, 2010 (collectively, "Monster Energy Company's copyrighted works").
8. Nicecycle agrees that Monster Energy Company is the owner of the trade dress in the overall appearance of the packaging design shown below ("the MONSTER trade dress"), which includes the common elements of a black or black and gray background, a clawed letter "M", a bright contrasting accent color, and the word "MONSTER" in a white, stylized font.
Nicecycle agrees that the MONSTER trade dress is valid and enforceable.
9. Nicecycle has offered to sell and has sold items, such as motorcycle parts and accessories, including, for example, gas caps, motorcycle levers, key chains, and wrist bands, (hereinafter "the Infringing Products") that bear marks that are essentially identical to MEC's Monster Energy Company's trademarks, as well as displaying the MONSTER trade dress. Images showing some of the products that Nicecycle has offered for sale or sold are shown below:
10. Nicecycle agrees that the marketing and sale of the Infringing Products infringes Monster Energy Company's rights in the Monster Energy Company's trademarks, Monster Energy Company's copyrighted works, and the MONSTER trade dress.
11. Nicecycle, and its parents, subsidiaries, affiliates, officers, agents, servants, employees, attorneys, and those persons in active concert or participation with it, who receive actual notice of this injunction by personal service or otherwise, are permanently restrained and enjoined from:
a. manufacturing, distributing, shipping, importing, displaying, advertising, marketing, promoting, transferring, selling, or offering to sell: (i) products that use the MONSTER™, MONSTER ENERGY®, or Claw Icon Marks or (ii) products that use other names or marks that include any of Monster Energy Company's trademarks or that are confusingly or substantially similar to any of Monster Energy Company's trademarks;
b. manufacturing, distributing, shipping, importing, displaying, advertising, marketing, promoting, transferring, selling, or offering to sell any products that either: (i) use or bear the MONSTER Trade Dress, or (ii) use or bear an overall appearance confusingly similar to and/or substantially similar to the MONSTER Trade Dress;
c. using Monster Energy Company's copyrighted works in connection with the manufacturing, distributing, shipping, importing, displaying, advertising, marketing, promoting, transferring, selling, or offering to sell of any products;
d. using any marks that are likely to dilute the distinctive quality of Monster Energy Company's trademarks; and
e. otherwise competing unfairly with Monster Energy Company.
12. Within ten days after entry of this Final Consent Judgment and Permanent Injunction, Nicecycle shall deliver to counsel for Monster Energy Company for destruction, without charge, all existing inventory of the Infringing Products and any advertising or promotional materials for the product.
13. This Court shall retain jurisdiction of this matter for all purposes, including for the purpose of enforcing the terms and provisions of this Final Consent Judgment and Permanent Injunction.
14. Nicecycle agrees to submit to the personal jurisdiction of this Court in connection with this matter for all purposes, including for the purpose of enforcing the terms and provisions of this Final Consent Judgment and Permanent Injunction.
15. This is a final judgment against Nicecycle. Any remaining claims against Nicecycle set forth in the Complaint filed by Monster Energy Company, to the extent not otherwise addressed by this Final Consent Judgment and Permanent Injunction, are hereby dismissed as to Nicecycle.
IT IS SO ORDERED.
