Tate v. Matteo, 18-cv-03535-JCS. (2019)
Court: District Court, N.D. California
Number: infdco20191114797
Visitors: 4
Filed: Nov. 13, 2019
Latest Update: Nov. 13, 2019
Summary: ORDER OF DISMISSAL WITH PREJUDICE JOSEPH C. SPERO , Magistrate Judge . Plaintiff John A. Tate, pro se, and Defendant Matteo Devescovi have settled this matter pursuant to a settlement agreement which is attached as Exhibit 1. Pursuant to that settlement agreement, the Court dismisses the entire action with prejudice, with each party bearing that party's attorneys' fees and costs of suit. The Court retains jurisdiction to enforce the settlement agreement. IT IS SO ORDERED. Exhibit 1 Se
Summary: ORDER OF DISMISSAL WITH PREJUDICE JOSEPH C. SPERO , Magistrate Judge . Plaintiff John A. Tate, pro se, and Defendant Matteo Devescovi have settled this matter pursuant to a settlement agreement which is attached as Exhibit 1. Pursuant to that settlement agreement, the Court dismisses the entire action with prejudice, with each party bearing that party's attorneys' fees and costs of suit. The Court retains jurisdiction to enforce the settlement agreement. IT IS SO ORDERED. Exhibit 1 Set..
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ORDER OF DISMISSAL WITH PREJUDICE
JOSEPH C. SPERO, Magistrate Judge.
Plaintiff John A. Tate, pro se, and Defendant Matteo Devescovi have settled this matter pursuant to a settlement agreement which is attached as Exhibit 1. Pursuant to that settlement agreement, the Court dismisses the entire action with prejudice, with each party bearing that party's attorneys' fees and costs of suit. The Court retains jurisdiction to enforce the settlement agreement.
IT IS SO ORDERED.
Exhibit 1
Settlement Agreement
This settlement agreement ("Agreement") is entered into and effective as of March 21, 2019 by and between John Tate. Fancy Hat Studios, Inc. and Michael Real, on the one one hand (collectively referred to as "Claimants"), and Matteo Devescovi (sued in the action as "Devescovi Matteo"), on the other ("Devescovi"), with respect to the following:
A. Tate filed an action for copyright infringement in the Northern District of California entitled John A. Tate v. Devescovi Matteo, Case No. 3:18-cv-03535-EDL ("the Action") contending entitlement to damages and further contending entitlement to protection from infringement of its copyrights, including without limitation, Copyright Numbers VA0002083564, VA0002116862, TX0008563826, VA0002116003, V A0002116004, VA0002116049, and VA0002116052; and in protecting its Trademark "Towergirls" (Trademark Registration 5572493;
B. Devescovi filed his answer to the Action, denying any wrongdoing or infringement of any kind, and he specifically denies the validity of Claimants' copyright registrations as well as the validity and subsistence of any "Towergirls" trademark; and
C. The parties now wish to settle all claims between them.
Now, therefore, the parties by this Agreement have agreed as follows:
1. Devescovi has made material changes to his Kobold Princess. The sketch depicting revisions is attached as Exhibit A ("Revised Princess"), and Claimants agree and acknowledge that the Revised Princess is materially changed and different from the Towergirls kobold princess. At any time Devescovi can modify the Revised Princess or create a new one provided that it is at least as different from the Towergirls kobold princess as the Revised Princess is.
2. Devescovi shall make the following additional changes to color/palette:
a. Human Princess — change the hair and dress color; a distinctly different shade of pink and blond would be acceptable.
b. Merchant Princess — change color palette to different color altogether
c. Slime Princess — change to a different color; a distinctly different shade of green would be acceptable.
d. Dog Princess — change car tuft color.
e. Drider Princess — change the dark purple in the spider portion of the body to a different color; a distinctly different purple is acceptable.
3. Devescovi shall make the following other changes that he previously agreed to make in discussions with Mr. Tate:
a. Rabbit — color palette change and rose removed from hair.
b. Moth — change the pattern on wings
c. Slime — change or remove the visible skeleton
d. Marmalad — name change to Jell
e. Bullfang — remove from game
f. Ribeye/SkullCrawler — Palette change
g. Kobold war suit — Helmet removal/replacement
4. Devescovi denies that he has in the past copied any Towergirls characters without permission or engaged in any kind of copyright infringement. Nevertheless, Claimants have received from Devescovi and or reviewed all characters currently used by Devescovi for his Princess & Conquest game ("P&C Characters") and agree that once the above changes are made in compliance with this Agreement, there are no such P&C Characters concerning which Claimants contend Devescovi has committed any kind of copyright infringement. Devescovi warrants, represents, promises and agrees that in the future he will not infringe any Towergirls copyrights or characters, nor use on or in connection with his games "Towergirls" as a trademark or trade name, or any confusingly similar name.
a. Devescovi warrants, represents, promises and agrees that the Princess & Conquest game shall not be published for public consumption until all changes outlined in this agreement, including the changes mandated within paragraph's 1, 2 & 3 herein, have been completed, or all content requiring changes has been removed prior to such publishing, including such publishing within Patreon, itch.io and gamejolt. (It is understood that this stipulation only applies to such characters that are published and that are subject of this Agreement, i.e. this Agreement only applies to that which he's going to publish; Devescovi doesn't have to make changes to characters he's no longer using, does not publish, or is not about to publish.)
b. Devescovi warrants, represents, promises and agrees that he shall provide Claimants on the release date of Princess & Conquest game, once all changes detailed in paragraphs 1, 2, & 3 have been implemented, to the to forward us a copy of his game.
5. The Memorandum of Understanding executed February 2017 between Devescovi and Claimants (or a principal of Claimants), is hereby recognized as terminated and of no force and effect.
6. Claimants will provide full and prompt cooperation to ensure that Devescovi's distribution pages, including, but not limited to, Patreon, Itch.io, and Gamejolt, are back up and operating, including executing any documents reasonably necessary to accomplish the same.
7. By entering into this Agreement, there is no admission of liability by any party This Agreement is a resolution of disputed claims.
8. Except for obligations arising out of this Agreement, the parties (Claimants, their agents, employees, successors and assigns, on the one hand, and Devescovi, his agents, employees, successors and assigns, on the other) hereby release each other from all claims, costs, and liabilities between them arising out of or relating to the facts and claims alleged in the Action.
9. Each side shall bear its own attorneys' fees arid costs in this Action. If, however, any future action or proceeding is brought to enforce the terms of this Agreement, the prevailing party shall be awarded its reasonable attorneys' fees and costs.
10. Claimant John Tate and Devescovi shall file a stipulation and order of dismissal with prejudice of the Action once this Agreement is signed by Claimants Tate and Fancy Hat. The stipulation and order shall request that the Court retain jurisdiction if needed by either party to enforce the terms of this Agreement.
11. In the event that Claimants believe that Devescovi is in breach of this Agreement, Claimants, by and through John Tate, shall notify Devescovi by e-mail (mdeve88@gmail.com, with copy to his attorney Jtownsend@owe.com) giving notice and describing in sufficient detail the alleged breach. Within 48 hours of receipt of such notice, Devescovi (or his attorney) shall acknowledge receipt of such notice to John Tate (johntate@bowlerboy.com), with copy to corporate counsel George 1. Tate (george@gitatelaw.com). Devescovi shall thereafter have seven (7) days to cure, as appropriate, the alleged breach, including by revising or correcting an offending element of Devescovi's game or by removing the allegedly offending element from the game, web page, or the like. If an alleged breach is not cured in the manner and in the time provided in this paragraph, Claimants may then seek to enforce this Settlement Agreement in this Court including, as provided in this Settlement Agreement, and including without limitation, paragraphs 9, 10 & 12.
12. Jurisdiction and venue for any dispute arising out of or relating to this Agreement shall be exclusively in the federal court in the Northern District of California.
13. This Agreement and all terms contained in it are binding on the parties hereto and may be enforced as a full and final settlement of the Action among and between the parties. This Agreement may be signed in counterparts and by facsimile, which, when taken together, shall be deemed to constitute a single original. Executed copies of this Agreement may be delivered via e-mail (PDF format). IF this Agreement is not signed and delivered within 48 hours following the time by which the first party has delivered its signed copy, it shall be null and void.
Fancy Hat Studios, Inc.
_________________________
By: John Tate, President
_________________________
Michael Real
_________________________
Matteo Devescovi
EXHIBIT A
Source: Leagle
