Opinion
CONSENT JUDGMENT AND PERMANENT INJUNCTION
PERCY ANDERSON, District Judge.
WHEREAS, plaintiff Core Nutritionals, LLC ("Core Nutritionals") and defendant Mitch Casale aka Mitch Mitchell dba Crushit Gym Gear ("Crushit Gym Gear") have agreed in a separate agreement to settlement of the matters in issue between them and to entry of this Consent Judgment and Permanent Injunction, it is hereby ORDERED, ADJUDGED, AND DECREED THAT:
1. This is an action for: (1) federal trademark infringement and federal false designation of origin under the Trademark (Lanham) Act of 1946, as amended, 15 U.S.C. §1051, et seq.; (2) statutory unfair competition under California Business and Professions Code §17200, et seq.; (3) common law trademark infringement; and (4) common law unfair competition.
2. This Court has jurisdiction over all of the parties in this action and over the subject matter in issue based on 28 U.S.C. §§1331, 1338(a), 1338(b), and 1367(a), as well as 15 U.S.C. §1121(a). This Court further has continuing jurisdiction to enforce the terms and provisions of this Consent Judgment and Permanent Injunction. Venue is also proper in this Court pursuant to 28 U.S.C. §§1391(b) and 1391(c).
3. Core Nutritionals is a Virginia limited liability company, having its principal place of business at 820 North Pollard Street #3, Arlington, Virginia 22203.
4. Crushit Gym Gear is an individual who resides at 20952 Coast View Lane, Huntington Beach, California 92648.
5. Core Nutritionals is the owner of all right, title, and interest in United States Trademark Registration No. 4, 469, 572 ("the 572 trademark"), which is valid and enforceable. A copy of this registration is attached hereto as Exhibit 1.
6. Crushit Gym Gear has advertised, marketed, promoted, distributed, offered for sale, and sold clothing (including T-shirts, tank tops, and hats) using and/or bearing "CRUSH IT" and/or "CRUSHIT" in the United States (the "CRUSHIT clothing"). Examples from Crushit Gym Gear's internet websites (www.crushitgymgear.com and www.crushitgymgear.bigcartel.com) are attached hereto as Exhibits 2 & 3.
7. Crushit Gym Gear's advertising, marketing, promotion, distribution, offer for sale, and sale of the CRUSHIT clothing is likely to cause, and has caused, confusion, mistake, and deception among the consuming public in that it literally and/or colorably imitates the 572 trademark. It therefore constitutes infringement of the 572 trademark in violation of the Lanham Act, 15 U.S.C. §1051, et seq., to the substantial and irreparable injury of the public and of Core Nutritionals' business reputation and goodwill.
8. Crushit Gym Gear's advertising, marketing, promotion, distribution, offer for sale, and sale of the CRUSHIT clothing has also infringed on Core Nutritionals' federal and common law trademark rights in the 572 trademark in violation of Section 43(a) of the Landham Act, 15 U.S.C. §1125(a), as such acts are likely to deceive, and have deceived, customers and prospective customers into believing that Crushit Gym Gear's CRUSHIT clothing is from, sponsored by, or affiliated with Core Nutritionals.
9. Crushit Gym Gear's advertising, marketing, promotion, distribution, offer for sale, and sale of the CRUSHIT clothing further constitutes statutory unfair competition in violation of California Business & Professions Code §17200, et seq., common law trademark infringement, and common law unfair competition.
10. Crushit Gym Gear, his agents, assigns, and all persons and/or entities acting for, with, by, though, and/or in concert and participation with them, or any of them, are hereby permanently enjoined from engaging in any of the following activities:
(a) manufacturing, advertising, marketing, promoting, distributing, offering for sale, and/or selling the CRUSHIT clothing;
(b) manufacturing, advertising, marketing, promoting, distributing, offering for sale and/or selling clothing, namely, T-shirts, hooded sweatshirts, long-sleeve shirts, tank tops, jackets, hats, pants, and shorts, that infringe the 572 trademark;
(c) using "CRUSH IT, " "CRUSHIT, " "CRUSH, " and/or any other designation that is a colorable imitation of, or is confusingly similar to, the 572 trademark in connection with the manufacture, advertisement, marketing, promotion, distribution, offer for sale and/or sale of clothing, namely, T-shirts, hooded sweatshirts, long-sleeve shirts, tank tops, jackets, hats, pants, and shorts;
(d) using crushitgymgear.com, crushitgymear.bigcartel.com, or any other domain name that includes "CRUSH IT, " "CRUSHIT, " "CRUSH, " and/or any other designation that is a colorable imitation of, or is confusingly similar to, the 572 trademark, in connection with the manufacture, advertisement, marketing, promotion, distribution, offer for sale and/or sale of clothing, namely, T-shirts, hooded sweatshirts, long-sleeve shirts, tank tops, jackets, hats, pants, and shorts;
(e) using the 572 trademark and/or any other mark that is a colorable imitation thereof, or confusingly similar thereto, in connection with the manufacture, advertisement, marketing, promotion, distribution, offer for sale and/or sale of clothing, namely, T-shirts, hooded sweatshirts, long-sleeve shirts, tank tops, jackets, hats, pants, and shorts, or any goods or services not originating from or authorized by Core Nutritionals;
(f) using the 572 trademark and/or any other mark that is a colorable imitation thereof, or confusingly similar thereto, in any manner likely to cause confusion, to cause mistake, or to deceive the consuming public;
(g) representing in any manner, or by any method whatsoever, that goods, services, or other products provided by Crushit Gym Gear are sponsored, approved, authorized by, or originate from Core Nutritionals or otherwise taking any action likely to cause confusion, mistake, or deception as to the origin, approval, sponsorship, or certification of such goods or services;
(h) committing any acts calculated or likely to cause consumers to believe that Crushit Gym Gear's products are Core Nutritionals' products or are authorized Core Nutritionals products unless they are such;
(i) unfairly competing with Core Nutritionals in any manner.
11. Service by first class mail upon Crushit Gym Gear, addressed to Mitch Casale, 20952 Coast View Lane, Huntington Beach, California 92648 of a copy of this Consent Judgment and Permanent Injunction entered by the Court is deemed sufficient notice under Federal Rule of Civil Procedure 65. It shall not be necessary for Crushit Gym Gear to sign any form of acknowledgement of service.
12. The parties shall bear their own attorneys' fees and costs.
IT IS SO ORDERED.
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3