Opinion
Civil Action No. 07 CV 2936.
July 24, 2007
KEITH V. ROCKEY, KATHLEEN A. LYONS, Rockey, Depke, Lyons Kitzinger, LLC, Chicago, Illinois, Attorneys for Plaintiff GLJ, LLC.
AUBREY O. DICUS, JR., Battaglia, Ross, Dicus Wein, P.A., Wachovia Bank Building, St. Petersburg, Florida, On behalf of Defendants Impulse, Novelties, Inc. and Premier Products of America, Inc.
AGREED MOTION FOR ENTRY OF CONSENT JUDGMENT
NOW COMES plaintiff, GLJ, LLC d/b/a O2-Cool ("O2-Cool"), by and through its counsel, and respectfully moves this Court to enter the Consent Judgment agreed to by the parties, a copy of which is attached hereto as Exhibit A.
As the Court can see, O2-Cool has agreed to accept a payment from defendants in settlement of the dispute as well as entry of a consent judgment acknowledging that U.S. Patent No. D531,296 is valid and has been infringed by defendants. In addition, the consent judgment provides for entry of an injunction against future acts of infringement by defendants (Exhibit A). Defendants are required to provide certain information to plaintiff and are also allowed to dispose of a limited amount of inventory of the accused products.
WHEREFORE, plaintiff and defendants request entry of the Consent Judgment agreed to by the parties.
EXHIBIT A CONSENT JUDGMENT
This matter having come before this Court on the motion of plaintiff, GLJ, LLC d/b/a O2-Cool ("O2-Cool") and defendants, Premier Products of America, Inc. and Impulse Novelties, Inc. ("defendants"), for entry of a consent judgment;
WHEREAS, O2-Cool and defendants have agreed to compromise and settle their claims in this litigation and have advised the Court as to that fact; and
WHEREAS, O2-Cool and defendants have agreed to the entry of this judgment as indicated by signature of counsel below;
NOW, THEREFORE, it shall be and is hereby ordered, adjudged and decreed;
1. This Court has jurisdiction over the subject matter of this action and has personal jurisdiction over the parties hereto.
2. O2-Cool is the owner of United States Letters Patent No. D531,296.
3. United States Letters Patent No. D531,296 is valid and enforceable.
4. Defendants, by their purchase, importation, distribution, use and/or sale of desk top ten (10) inch fans incorporating the design of United States Letters Patent No. D531,296 have infringed the claim of that patent, although defendants did not intend to infringe.
5. Commencing on the date of entry of this judgment, defendants, their officers, directors, employees, agents, attorneys, successors or assigns and those in active concert or participation with any of the foregoing, are hereby permanently enjoined and prohibited from further infringing the claim of United States Letters Patent No. D531,296 by the purchase, importation, distribution, use and/or sale of desk top ten fans incorporating the design of that patent.
6. Defendant, Impulse Novelties, Inc., agrees to provide O2-Cool with the following information by the date on which the Consent Judgment is executed on behalf of defendants:
(a) the name and address of the exporter of the accused fans from China;
(b) copies of all import invoices with pricing from China for the accused products; and
(c) copies of all sales invoices for the accused products including pricing and the name and address of each customer.
7. Defendant, Premier Products of America, Inc., agrees to provide O2-Cool with the following information by the date on which the Consent Judgment is executed on behalf of all defendants:
(a) copies of all sales invoices for the accused products including price and the name and address of the customer.
8. Defendants, through Impulse Novelities, Inc., agree, and are hereby ordered, to pay to O2-Cool an amount of $20,000.00. That amount will be paid upon delivery of the Consent Judgment, as executed on behalf of defendants, to plaintiff.
9. Upon payment of such monies and proof by defendants that their current remaining inventory of accused fans is less than 1,000 units, O-2 Cool agrees to let defendants dispose of those units of the accused product to small local retailers with less than five (5) stores. It is understood that some of the accused fans remain on the shelves of certain Walgreens® stores to which Premier sold. O2-Cool agrees to let the remaining Premier accused fans be sold out by Walgreens®.
10. In consideration of the undertakings set forth herein, and other good and valuable consideration, O2-Cool, on behalf of its agents, representatives, directors, officers, affiliates, predecessors, successors and assigns, hereby releases and discharges defendants and their agents, representatives, directors, officers, affiliates, predecessors, successors and assigns from any and all actions, causes of action, suits, in law or equity, which O2-Cool now has, may now have or had arising out of United States Letters Patent No. D531,296 prior to the date of entry of this judgment, provided, however, that this release does not release or discharge defendants from their obligations under this Agreement.
11. O2-Cool and defendants are to bear their own costs and attorney fees incurred in this litigation.
12. The Complaint as to Impulse Novelties, Inc. and Premier Products, Inc. is hereby dismissed with prejudice, this Court retaining jurisdiction over the parties for purposes of enforcing the provisions of this judgment.