Opinion
Case No. CV-04-2619 AHM (MANx).
July 19, 2004
MANATT, PHELPS PHILLIPS, LLP IAN C. BALLON, JONATHAN M. EISENBERG, Los Angeles, CA, Attorneys for Plaintiff GARDEN OF LIFE, INC.
Pan C. Ballon, GARDEN OF LIFE, INC., Attorneys for Plaintiff.
RUSS AUGUST KABAT, Larry C. Russ, BARRY LETZER, SALLY LETZER, and GARDEN OF LIFE, LLC, Attorneys for Defendants.
STIPULATED PERMANENT INJUNCTION
Plaintiff Garden of Life, Inc. ("Plaintiff") and defendants Barry Letzer, Sally Letzer, and Garden of Life, LLC (together, "Defendants"), hereby agree and stipulate as follows:
1. Defendants and their business partners, affiliates, parents, subsidiaries, officers, directors, employees, servants, representatives, agents, and attorneys, and all other persons or entities in concert or participation with or on behalf of them, past, present, and future, shall be permanently enjoined from:
(a) Advertising, marketing, promoting, publicizing, offering for sale or lease, or selling or leasing — anywhere in the United States or on the Internet — any goods or services relating to health, fitness, wellness, diet, nutrition, vitamins, nutritional supplements, cosmetics, health and beauty aides, personal hygiene, skin care, or information or publishing services or educational materials related to the benefits of vitamins or nutritional supplements, in connection with or under Plaintiff's GARDEN OF LIFE trademarks (including but not limited to U.S. Trademark Reg. Nos. 2,534,003 and 2,710,990 and U.S. Trademark Application Serial No. 78,335,127 and common-law rights), or any confusingly similar trademark, service mark, trade name, name, logo, symbol, Internet domain name, metatag, keyword, or vanity telephone number (collectively, "goods-and-services source identifiers"), or any goods-and-services source identifiers that include the terms "garden" and "life" in any combination, "garden of life," "the real and true garden of life," or any confusingly similar terms;
(b) Representing that Defendants or their goods or services are affiliated, connected, or associated with, or sponsored or endorsed by, Plaintiff;
(c) Passing off any goods or services as genuine Garden of Life, Inc. goods or services, unless such goods are genuine Garden of Life, Inc. goods or services;
(d) Selling, advertising, marketing, promoting or otherwise depicting or referencing any genuine Garden of Life, Inc. goods or services without posting a disclaimer, prominently placed next to the product, advertisement or depiction stating, in large and distinctive typeface, that Defendants are not authorized Garden of Life, Inc. distributors or partners and that there is no affiliation between them and Plaintiff and that Plaintiff does not sponsor or endorse Defendants or their goods or services. (If Defendants depict, promote or sell Plaintiff's goods or services on a website or in an e-mail or other electronic communication, the communication must also contain at the top of the communication, in a font size equal to or greater than that of any other visible text in the communication, a distinctive and prominent link to Plaintiff's website, gardenoflifeusa.com);
(e) Engaging in any acts or series of acts which, individually or in conjunction, are designed to dilute, or have the effect of diluting, the distinctive quality of Plaintiff's GARDEN OF LIFE trademarks (listed in Paragraph 1(a)), by blurring, tarnishing, or otherwise diminishing the marks;
(f) Engaging in any acts or series of acts which, individually or in conjunction, are designed to interfere with, or have the effect of interfering with, Plaintiff's customer relationships, business relationships, business reputation, or goodwill;
(g) Registering, purchasing, acquiring, selling, leasing, transferring, using, or trafficking in, either directly or indirectly, any Internet domain names containing the terms "garden" and "life, or any variation thereon, except "gardenoflifelessons"; and/or
(h) Assisting, aiding, or abetting any person or entity from engaging in any of the acts set forth in items (a) through (g), of this Paragraph.
2. On an ongoing basis, within five (5) calendar days of receiving, at any website or otherwise, any communications, including but not limited to oral, electronic and paper communications, which directly or indirectly mention or refer to Plaintiff or one or more of its goods, services, business partners, employees or agents, and which is apparently directed to Plaintiff or its business partners, affiliates, parents, subsidiaries, officers, directors, employees, servants, representatives, agents, or attorneys, Defendants shall give to Plaintiff a complete, unedited, unaltered copy of said communication and shall either destroy or make no response to or use whatsoever of the original communication.
3. Within seven (7) calendar days after the date that this permanent injunction is entered as an order of the Court, Defendants shall take all steps necessary to cooperate with Plaintiff in connection with the transfer to Plaintiff of the registrations for and all rights, titles, and interests in and to the following Internet domain names (to the extent Defendants have not already done so):
(a) gardenoflife.com
(b) gardenoflifeusa.net
(c) gardenoflifeusa.org
(d) gardenoflifeusa.biz
(e) gardenoflifeusa.info
(f) gardensoflifeusa.com
(g) gardensoflifeusa.net
(h) gardensoflifeusa.org
(i) gardensoflifeusa.biz
(j) gardensoflifeusa.info
(k) thegardenoflifeusa.com
(l) thegardenoflifeusa.net
(m) thegardenoflifeusa.org
(n) thegardenoflifeusa.biz
(o) thegardenoflifeusa.info
(p) agardenoflifeusa.com
(q) agardenoflifeusa.org
(r) agardenoflifeusa.net
(s) agardenoflifeusa.biz
(t) agardenoflifeusa.info
(u) 4gardenoflifeusa.com
(v) 4gardenoflifeusa.net
(w) 4gardenoflifeusa.org
(x) 4gardenoflifeusa.biz
(y) 4gardenoflifeusa.info
(z) gardenoflifediscountproducts.com
(aa) gardenoflifediscountproducts.net
(bb) gardenoflifediscountproducts.org
(cc) gardenoflifediscountproducts.biz
(dd) gardenoflifediscountproducts.info
(ee) gardenoflife-discountproducts.net
(ff) gardenoflife-discountproducts.org
(gg) gardenoflife-discountproducts.biz
(hh) gardenoflife-discountproducts.info
(ii) gardenoflifedietmaker.com
(jj) gardenoflifediet.com
(kk) gardendietmaker.com
(ll) thegardenoflife.org
(mm) gardenoflifeusa.us
(nn) agardenoflife.com
(oo) agardenoflife.net
(pp) agardenoflife.biz
(qq) agardenoflife.org
(rr) thegardenoflifeusa.us
(ss) 4gardenoflife.com
(tt) 4gardenoflife.net
(uu) 4gardenoflife.org
(vv) 4gardenoflife.info
(ww) 4gardenoflife.biz
(xx) gardenoflifecommunications.com
(yy) gardenoflifecommunications.net
(zz) gardenoflifecommunications.org
(aaa) gardenoflifecommunications.biz
(bbb) gardenoflifecommunications.info
(ccc) gardenoflifecommunications.us
(ddd) gardenoflife.org
(eee) gardenoflife.info
(fff) thegardenoflife.biz
(ggg) thegardenoflife.info
(hhh) agardenoflife.info
(iii) gardensoflife.biz
(jjj) gardens-of-life.org
(kkk) gardensoflife.info
(lll) garden-of-life.info
(mmm) gardensoflife.org
(nnn) gardens-of-life.biz
(ooo) gardens-of-life.info
(ppp) gardens-of-life.net
(qqq) gardens-of-life.com
(rrr) gardensoflife.net
(sss) thegardenoflife.us
Plaintiff shall be responsible for initiating said transfers and shall have unrestricted use of these domain names.
4. Notwithstanding the foregoing, nothing herein shall be interpreted as preventing Defendants from using the mark GARDEN OF LIFE LESSONS in connection with the following services:
educational and entertainment services, namely, production of radio and television programs; production of live theatrical performances, audio recording and production, digital video disc and video production all on the subject of assisting people of all ages in understanding the importance of developing tools for living from the vantage point of merging the skills of intuitionism with the skill of mastering day to day real life issues and on the subject of thereby being aware of and articulating a stated desire, and on the subject to creating a design to enact that desire and implementing a delivery system that delivers one's stated desire. conducting classes, seminars and training on the subject of assisting people of all ages in understanding the importance of developing tools for living form the vantage point of merging the skills of intuitionism with the skill of mastering day to day real life issues and on the subject of thereby being aware of and articulating a stated desire, and on the subject of creating a design to enact that desire and implementing a delivery system that delivers one's stated desire, providing educational and entertainment services accessed through the use of a global computer information network, namely, providing information on the subject to assisting people of all ages in understanding the importance of developing tools for living from the vantage point of merging the skills of intuitionism with the skill of mastering day to day real life issues and on the subject of thereby being aware of and articulating a stated desire, and on the subject of creating a design to enact that desire and implementing a delivery system that delivers one's stated desire.
5. Defendants shall not make or allow to be made on any website that they own, operate or host, directly or indirectly, any depiction of, posting about, mention of or reference whatsoever to Plaintiff, Plaintiff's GARDEN OF LIFE trademarks (listed in Paragraph 1(a)), Jordan Rubin, or Plaintiff's goods, services, officers, directors or employees (other than the distinctive and prominent disclaimers and links to gardenoflifeusa.com mentioned in Paragraph 1(d)).
6. This stipulated permanent injunction supersedes the May 17, 2004 preliminary injunction entered in this case, to the extent that the two injunctions are inconsistent with each other.
7. The Court shall retain jurisdiction to enforce the terms of this permanent injunction.
8. The $7,500 bond that Plaintiff posted in compliance with the preliminary injunction shall be released and returned to Plaintiff within seven (7) court days of the date this preliminary injunction is entered as an order of the Court.
AGREED AND STIPULATED:
IT IS SO ORDERED.