Filed: May 23, 2014
Latest Update: May 23, 2014
Summary: ORDER GRANTING STIPULATED MOTION AND PERMANENT INJUNCTION CHRISTINE M. ARGUELLO, District Judge. This matter comes before the Court on the parties' Stipulated Motion for Entry of Injunction and Dismissal filed May 23, 2014. The Court, having reviewed the Motion and record, and noting that all parties have agreed to the relief requested therein, FINDS as follows: 1. Plaintiff alleges that Defendant infringed on Plaintiff's intellectual property, which the Defendant has denied; 2. The Parties
Summary: ORDER GRANTING STIPULATED MOTION AND PERMANENT INJUNCTION CHRISTINE M. ARGUELLO, District Judge. This matter comes before the Court on the parties' Stipulated Motion for Entry of Injunction and Dismissal filed May 23, 2014. The Court, having reviewed the Motion and record, and noting that all parties have agreed to the relief requested therein, FINDS as follows: 1. Plaintiff alleges that Defendant infringed on Plaintiff's intellectual property, which the Defendant has denied; 2. The Parties h..
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ORDER GRANTING STIPULATED MOTION AND PERMANENT INJUNCTION
CHRISTINE M. ARGUELLO, District Judge.
This matter comes before the Court on the parties' Stipulated Motion for Entry of Injunction and Dismissal filed May 23, 2014. The Court, having reviewed the Motion and record, and noting that all parties have agreed to the relief requested therein, FINDS as follows:
1. Plaintiff alleges that Defendant infringed on Plaintiff's intellectual property, which the Defendant has denied;
2. The Parties have settled this matter and jointly request that the Court enter this Order and Permanent Injunction and dismiss this case, with prejudice, each party to bear its or his own attorneys' fees and costs; and
3. Good cause has been shown for entry of the Permanent Injunction. Therefore, the Court ORDERS as follows:
1. The Stipulated Motion is GRANTED.
2. Defendant Zhengmao Zhu his employees, agents and contractors are hereby permanently enjoined from using the product design shown in Ex. B in the U.S. and any product that is "substantially similar" to the product design shown in Ex. A. The standard for determining "substantially similar" is the standard as determined by applicable case law as of the time of the alleged infringement, that applies in U.S. design patent infringement cases.
3. For the UNITED STATES and any of its protectorates, ZHU shall not directly offer to deliver, offer to sell, sell, manufacture, have manufactured or represent as agent for any purchase or sale or indirectly by contributing, inducing or participating with any third party in any such acts by others, any product or component, herein designated as the "ZHU Product", which is substantially similar to the iOMount iOStand, as shown in Ex. A, including without limitation any Magfoot stands as shown in Ex. B, or any combination of the ball head and magnetic carrier member substantially similar to the components of the iOMount iOStand as shown in Ex. A and Ex. C.
4. ZHU shall not advertise or market on any internet sites directed to the United States or any sites that enable orders for the product to be fulfilled to a United States shipping address, any ZHU Products that are substantially similar to the iOMount iOStand or the combination of the ball head and magnetic carrier thereof, for itself or others in any form or media. A website shall not be deemed to be deliberately directed to U.S. customers if it includes a foreign country code in the domain name. The website must prominently state that the product is not for sale in or into the United States and that if any customer attempts to order the product for shipment to a United States address, Defendant will not fulfill the order.
5. This injunction does not determine any claim, defense or asserted right by either party that may arise from future acts related to Zhu's manufacture, importation, sale or offering for sale, directly, indirectly, or in cooperation with others, of products other than the ZHU Product in Ex. B, including future claims of infringement of the intellectual property asserted in the Litigation or of claims based on additional patents, trademarks, or trade dress claimed by iOmounts.
6. Within 45 days ZHU shall destroy all of its ZHU Products or its component parts located in the United States or its territories.
7. Within 45 days ZHU shall produce to iOMount's counsel the following information related to the ZHU Products:
a. The name and address of any manufacturer, distributor, importer, supplier, sub-distributor, sales agents, or sales reps, whether in the United States or not, of the ZHU Products or their components;
b. To the extent any third party has design drawings, manufacturing specifications, molds or documents used to construct, manufacture or source components of the ZHU Products, ZHU shall provide their name, address and their role in the manufacture or assembly of the ZHU Products;
c. The number and description of units, components or sub-assemblies of the ZHU Products manufactured by or for ZHU or any other importer or distributor;
d. The number and description of units or components of the ZHU Products delivered to ZHU or any other importer or distributor in the United States and at what period of time;
e. The number and description of units or components of the ZHU Products delivered outside the United States and at what period of time;
f. Separately provide the number and description of units or components of the ZHU Products sold in the United States and outside the United States by ZHU and the dates;
g. The name and address of any purchaser and the shipping address of the ZHU Products in the United States and the number and description of units or components purchased by each;
h. If there were any sales to any buyer outside the United States, and the quantity was greater than 20, the name and address of the buyer, the shipping address, the number and description sold, the date of sale;
i. Certification that all advertising, marketing, internet market, e.g. eBay without limitation, or other activities related to distribution, offering for sale, or sale of the ZHU Products in or to the United States have been cancelled or stopped, including without limitation any internet, social network, or online marketing listings or other postings;
j. Certification that any remaining inventory of ZHU Products in the United States has been destroyed; and
k. Certification that all United States orders or supplies of the ZHU Products in vendor's or supplier's possession have been destroyed and orders cancelled.
This case is DISMISSED WITH PREJUDICE; each party shall pay its or his own attorney's fees and costs. This Court shall retain jurisdiction to enforce this Permanent Injunction; and
The Clerk shall enter Judgment on this Order of Dismissal.
