Opinion
Case No. CV11-01586 PSG(JEMx)
09-13-2011
Conan Properties International, LLC, a Delaware Limited Liability Company, Plaintiff, v. Tim Underwood, individually and dba Underwood Books; Spectrum Fantastic Art LLC, a Kansas Limited Liability Company; Arnie Fenner, an individual; Cathy Fenner, an individual; Manuel Perez Clemente (a/k/a Sanjulian), an individual: and Manuel Auad, individually and dba Auad Publishing, Defendants.
Steven M. Morger, Esq. Wendel Rosen Black & Dean LLP Attorneys for defendants Manuel Auad and Manuel Perez Clemente aka Sanjulian Michael J. Hughes, Esq. Intellectual Property Law Office Attorneys for defendants Tim Underwood, individually and dba Underwood Books, Spectrum Fantastic Art LLC, Arnie Fenner and Cathy Fenn er
Sacha V. Emanuel (Bar No. 218705)
Attorney at Law
Attorneys for Plaintiff
Conan Properties International, LLC
CONSENT JUDGMENT AND ORDER
Plaintiff, Conan Properties International, LLC ("CPI"), and Defendants, Tim Underwood, individually and dba Underwood Books, Spectrum Fantastic Art LLC, Arnie Fenner, Cathy Fenner and Manuel Perez Clemente ("Clemente") (collectively "Defendants"), have stipulated that CPI shall have judgment on the Complaint as set forth herein. Judgment in this action shall enter as follows:
1. CPI owns all rights, title and interest in the following stories protected by United States copyright registrations: "Black Colossus" (reg. no. B 211 038; renewal no. R 269 994), "Phoenix on the Sword" (reg. no. B 175 731; renewal no. R 250 145), "Rogues in the House" (reg. no. B 246 430; renewal no. R 270 001), "Scarlet Citadel" (reg. no. B 175 732; renewal no. R 250 146), "Tower of the Elephant" (reg. no. B 211 035; renewal no. R 269 991), and "Vale of Lost Women" (reg. no. B 345 804; renewal no. RE 673 166), (the "Copyrighted Stories").
2. CPI owns all intellectual property rights, title and interest in those paintings by Clemente commissioned by Charter Communications, Inc. for use as cover art on certain "Conan" books licensed to Charter by CPI and published under Charter's "Ace" imprint (the "Ace Covers"), as follows:
a. The Ace Covers published in the book which is the subject of this action, Sword's Edge: Paintings Inspired by the Works of Robert E. Howard ("Sword's Edge");
b. The paintings which are used as Ace Covers on the following books:
1. Blade of Conan, The (1979)
2. Conan and the Sorcerer (1978)
3. Conan: the Flame Knife (1980)
4. Conan: Treasure of the Tranicos (1980)
5. Gods of Bal-Sagoth, The (1979)
6. Howard Collector, The (1979)
7. Spell of Conan, The (1980)
8. Three-Bladed Doom (1979)
9. Tigers of the Sea (1979)
10. Worms of the Earth (1979);
3. CPI owns trademark registrations worldwide for the trademarks CONAN and CONAN THE BARBARIAN, including, inter alia, the following United States trademark registration numbers for the trademark CONAN: 78325581, 78806704, 75436514, and 74369670 in Class 9; 1374714,3607668, and 2522082 in Class 16; 73112519 and 78806775 in Class 25; 78806795 and 73282331 in Class 28; 78806841 in Class 41; and United States trademark registration number 2522083 in Class 16 for the mark CONAN THE BARBARIAN (collectively, the "Conan Marks"). CPI also owns nearly one hundred (100) international registrations for CONAN, CONAN THE BARBARIAN, and other CONAN-formative trademarks.
4. CPI owns all right, title and interest in the fictional character "Conan," a/k/a "Conan the Barbarian," created by the author Robert E. Howard in the 1920s (the "Conan Character").
5. Defendants are enjoined from creating, publishing, selling in and/or importing into the United States any books (including, but not limited to, reprinting of Sword's Edge), containing the Copyrighted Stories, or any other stories containing the Conan Character owned by CPI, the Ace Covers, the Conan Marks and the Conan Character, except by license.
6. Defendants, and each of them, are permanently enjoined from reproducing, distributing or otherwise infringing the Copyrighted Stories, or any other stories containing the Conan Character owned by CPI, the Ace Covers, the Conan Marks and/or the Conan Character by, including without limitation, reproducing, distributing or otherwise using the Copyrighted Stories, the Ace Covers, the Conan Marks, and any depiction of the Conan Character in the United States, except by license.
7. Defendants are permanently enjoined from directly or indirectly using the name "Conan," the Conan Marks, and/or the Conan Character or any other mark, word or name similar thereto which is likely to cause confusion, mistake or to deceive, as to rights held by CPI, except by license.
Therefore, pursuant to the foregoing stipulations;
IT IS ORDERED that judgment enter for CPI on the Complaint as set forth herein. The Parties shall each bear its own costs in this matter.
The Hon. Philip S. Gutierrez
United States District Judge
PROOF OF SERVICE
Section 1013 A (3)
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 10250 Constellation Boulevard, Suite 2320, Los Angeles, California 90067.
On September 8, 2011, I served the foregoing document described as CONSENT JUDGMENT AND ORDER on interested parties as follows:
See service list attached hereto X By United States mail. I enclosed the document(s) in a sealed envelope or package addressed to the person(s) above.
_ By depositing the sealed envelope with the United States Postal Service, with the postage fully prepaid.
_ I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
_I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Los Angeles, California. __ By messenger service. I served the documents by placing them in an envelope or package addressed to the person(s) listed above and provided them to a professional messenger service for service. __ By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the person at the fax numbers listed above. No error was reported by the fax machine that I used. __ By overnight delivery. I enclosed the documents in an envelope provided by overnight delivery and addressed to the persons listed above. I placed the envelope for collection and delivered it to the regularly utilized drop box for overnight delivery. __ _ By e-mail or electronic transmission. Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the person at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic messenger or other indication that the transmission was unsuccessful. __ _ STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. X FEDERAL I declare under penalty of perjury under the laws of State of California and applicable federal law that the above is true and correct.
Executed on September 8, 2011, at Los Angeles, California.
____________
Catherine McCann
SERVICE LIST
Steven M. Morger, Esq.
Wendel Rosen Black & Dean LLP
Attorneys for defendants Manuel Auad and
Manuel Perez Clemente aka Sanjulian
Michael J. Hughes, Esq.
Intellectual Property Law Office
Attorneys for defendants Tim Underwood,
individually and dba Underwood Books,
Spectrum Fantastic Art LLC, Arnie Fenner
and Cathy Fenner