Opinion
Nos. C 05-0058 MEJ, C 05-0527 MEJ.
December 14, 2005
Ray K. Shahani, Esq. SBN 160,814 Attorney at Law Twin Oaks Office Plaza San Mateo, California, Attorney for Plaintiff KIRK G. ESSLER, an individual and dba THEJOYRIDER.COM
Andre Genevoy Defendant Individually Defendant on behalf of JIM SUPPORT ENTERPRISES
Robert L. Codekas Defendant Individually Defendant on behalf of JIM SUPPORT ENTERPRISES
Louis Ceruzzi Defendant Individually Defendant on behalf of CERUZZI CONCEPTS, INC.
Douglas Stenzel, Esq. Attorney for Defendant JIM SUPPORT ENTERPRISES, ANDRE GENEVOY, ROBERT L. CODEKAS, CERUZZI CONCEPTS, INC., LOUIS CERUZZI
WHEREAS, on January 4, 2005, Kirk G. Essler, an individual and dba The JoyRider and dba www.TheJoyRider.com ("Essler") filed its complaint for Patent, Trademark, Copyright Infringement and Unfair Competition ("Complaint") against, inter alia, Defendants JIM SUPPORT ENTERPRISES, a California partnership, ANDRE GENEVOY, an individual and ROBERT L. CODEKAS, an individual (collectively, "Defendants");
WHEREAS, on February 4, 2005, Kirk G. Essler, an individual and dba The JoyRider and dba www.TheJoyRider.com ("Essler") filed its complaint for Patent, Trademark, Copyright Infringement and Unfair Competition ("Complaint") against, inter alia, Defendants CERUZZI CONCEPTS, INC., a Georgia corporation, and LOUIS CERUZZI, an individual (collectively, "Defendants");
WHEREAS, the parties hereto desire that the Court enter this [PROPOSED] STIPULATED JUDGMENT AND PERMANENT INJUNCTION as set forth below.
THE PARTIES HEREBY AGREE AND STIPULATED, AND THE COURT ORDERS, ADJUDGES AND DECREES, AS FOLLOWS:
1. This Court has jurisdiction of the subject matter of the action and the parties to this action, and venue is proper in this judicial district;
2. Essler is the owner of United States Patent No. 6,030,039 entitled which originally issued on February 29, 2000, to Kirk G. Essler (the "039 Patent");
3. The `039 Patent is valid and enforceable;
4. Essler is the owner of the trademark JOYRIDER and is the owner of United States Trademark Application Serial No. 76/628,287 filed Jan. 19, 2005 for the trademark JOYRIDER which has been in continuous use since September 28, 1997 and which has been in continuous use in interstate commerce since November 8, 1997 (the "Trademark");
5. The Trademark is valid and enforceable;
6. Essler is the owner of Copyright Application Serial No. ___ N.A. ___ filed October 20, 2005 for material used to promote and advertise his product The JoyRider on the world wide web, in labels, brochures, printed materials and other publications (the "Copyright");
7. The Copyright is valid and enforceable;
8. Plaintiff hereby dismisses the present cases with prejudice.
9. Defendants, and their officers, agents, servants, employees and attorneys, and those persons in active concert and participation with Defendants, are permanently enjoined from directly or indirectly:
a. Manufacturing, marketing, using, offering for sale and/or sale of all products that infringe the `039 Patent and/or products bearing Essler's patent number.
b. Manufacturing, marketing, offering for sale and/or sale of all products bearing any mark, notice, words or lettering, or making any other trademark use that infringes the Trademark.
c. Manufacturing, marketing, promoting, advertising, offering for sale and/or sale of all products bearing any notice, words or lettering, or making any other use that infringes the Copyright.
10. As compensation for costs of suit and attorneys fees incurred herein, all Defendants shall pay a combined total of thirty five thousand dollars ($35,000.00) to the Plaintiff in the form of a single cashier's check or money order payable to KIRK G. ESSLER by not later than November 23, 2005.
11. All Defendants shall cause to be delivered to the office of RAY K. SHAHANI, ESQ., as Attorney for the Plaintiff, the above-mentioned single cashier's check or money order along with the original of this STIPULATED JUDGMENT AND PERMANENT INJUNCTION signed by all the Defendants and their Counsel by not later than 5:00 PM on Wednesday, November 23, 2005.
12. By not later than 5:00 PM on Wednesday, November 23, 2005, LOUIS CERUZZI shall cause to be destroyed completely, without re-use of any component parts or materials in any way, shape or form, the patented "Joy Rider" spring-loaded rim chair which he purchased from Plaintiff on about March 27, 2000.
13. Within ten (10) days of November 23, 2005, Plaintiff shall sign this STIPULATED JUDGMENT AND PERMANENT INJUNCTION and shall cause SAME TO be filed in this Court along with a request for dismissal of the present cases as provided herein.
14. The Court shall retain jurisdiction of this action for purposes of enforcement of compliance with this [PROPOSED] STIPULATED JUDGMENT AND PERMANENT INJUNCTION and for the punishment of violations thereof.
IN WITNESS WHEREOF, by signing below the parties, and by and through their attorneys agree, stipulate and request the Court enter judgment according to this [PROPOSED] STIPULATED JUDGMENT AND PERMANENT INJUNCTION.