Opinion
Case No.: CV11-5204 MMM(RZx)
12-20-2011
LIQUIDMETAL TECHNOLOGIES, INC., a Delaware corporation and CRUCIBLE INTELLECTUAL PROPERTY LLC, a Delaware corporation, Plaintiff, v. FREUD AMERICA, INC., a North Carolina corporation and DOES 1 through 10, inclusive, Defendants.
CONSENT JUDGMENT
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, with the consent of the Plaintiffs, LiquidMetal Technologies, Inc. and Crucible Intellectual Property LLC ("Plaintiffs") and the Defendant, Freud America, Inc. ("Defendant"), that:
1. This Court has jurisdiction over Plaintiffs and Defendant and over the subject matter of this action.
2. Plaintiffs filed a Complaint on June 22, 2011, alleging claims for trademark infringement and unfair competition under federal law and California state law (the "Complaint").
3. In the Complaint, Plaintiffs allege that they own or license the trademark LIQUIDMETAL in connection with amorphous metallic coatings and amorphous metallic materials for use in connection with tools, medical devices, toys, jewelry, consumer products, sporting goods, munitions and other products.
4. Plaintiffs also allege that they own or license United States Trademark Registration Nos. 2312889, 2435558, 2435559, 2480241, 2494583, 2714787, 3159720, 3230417, 3610314, and 3633282 for marks that include "LIQUIDMETAL"
5. Defendant has manufactured and sold power tool accessories, namely, saw blades, bearing the term "Liquid Metal".
6. Plaintiffs' claim that Defendant's use of the term "Liquid Metal" on its power tool accessories infringes their rights in the LIQUIDMETAL trademark.
7. Plaintiffs and Defendant have agreed to resolve their claims in this action on the terms and conditions set forth below, have consented to entry of this Consent Judgment, and have expressly waived any and all rights to appeal this Consent Judgment.
IT IS THEREFORE FURTHER ORDERED, ADJUDGED AND DECREED that:
a) Defendant is permanently enjoined from:
(1) manufacturing any power tool accessories bearing the term "Liquid Metal" after December 31, 2011;
(2) selling any power tool accessories bearing the term "Liquid Metal" after December 31, 2012; and
(3) any further use of the term "Liquid Metal" in connection with power tool accessories after December 31, 2012.
b) Nothing in this Consent Judgment shall constitute a restriction on Freud's right to make "fair use" of the LIQUIDMETAL mark or phrase "liquid metal" or otherwise engage in speech protected by the First Amendment of the U.S. Constitution.
c) The injunction granted hereunder shall not apply in the event that LiquidMetal or their successors, as applicable, have abandoned (as "abandoned" is defined in 15 U.S.C. § 1127) the LIQUIDMETAL mark. d) All claims, counterclaims and defenses which are or which could have been asserted by Plaintiffs or Defendant based on the facts alleged in the Complaint or facts known to such party relating to the subject matter thereof as of the date of entry of this Consent Judgment are hereby resolved and merged into this Consent Judgment.
e) This Consent Judgment shall bind Plaintiffs and Defendant, their respective heirs, successors, assigns, affiliates, parents, subsidiaries, companies they control, companies with which they are under common control, related entities, officers, directors, employees and agents, and any corporation, partnership or other entity into or with which any party may merge, consolidate or reorganize, as well as all persons or entities acting in concert or participation with them or any of them.
f) Plaintiffs' Complaint is hereby dismissed with prejudice. The parties shall bear their respective fees and costs.
SO ORDERED:
_________________
UNITED STATES DISTRICT JUDGE
APPROVED AND CONSENTED TO BY:
LIQUIDMETAL TECHNOLOGIES, INC.
By: ._____________________
Signed:.___________________
Title: ___________________
Date: _________________________
FREUD AMERICA, INC.
By: _________________________
Signed: ______________________
Title: ________________________
Date: _________________________
CRUCIBLE INTELLECTUAL PROPERTY LLC
By: _________________________
Signed: _______________________
Title: _________________________
Date: _________________________