Opinion
Divil Action No. 2:12-cv-00118
03-16-2012
MARKET CENTRAL, INC., Plaintiff, v. KPAUL PROPERTIES, LLC, Defendant.
Mark A. Willard, Esq. Pa. I.D. No. 18103 Audrey K. Kwak, Esq. Pa. I.D. No. 200527 ECKERT SEAMANS CHERIN & AMP; MELLOTT, LLC Michael D. Hardy, Esq. Barnes & Thomburg, LLP Attorney for Chikol LLC, Receiver for Defendant, KPaul Properties, LLC Attorneys for Plaintiff, Market Central, Inc.
CONSENT ORDER
WHEREAS, Market Central, Inc. ("Market Central") is the owner of the federal trademark registration for the trademark "SECURESWITCH®" which was registered by Market Central on the Principal Register of the United States Patent and Trademark Office on October 3, 2000 and is registered at United States Trademark Registration No. 2,390,873.
WHEREAS, KPaul Properties, LLC ("KPaul") has used the identical SECURESWITCH® mark in connection with the sale of products, including data switching products, which actions have caused a likelihood of confusion among consumers and purchasers of such products and data switching products.
WHEREAS, on February 2, 2012 Market Central commenced a civil action against KPaul alleging federal trademark infringement, federal unfair competition and common-law trademark infringement and unfair competition in the United States District Court for the Western District of Pennsylvania at Civil Action No. 2:12-cv-00118 ("the Action").
WHEREAS, in the Action, Market Central sought an order requiring that the SECURESWITCH® mark be removed from all products, user guides, packaging, advertising and commercial materials and internet websites of KPaul and enjoining KPaul of any further use of the SECURESWITCH® mark in connection with any products and/or services sold, offered for sale, distributed, advertised or supplied by KPaul.
WHEREAS, Market Central and KPaul have conferred through their respective legal counsel and have determined to resolve the Action as more fully described below:
NOW, THEREFORE, it is hereby agreed by and between Market Central and KPaul ("the Parties") as follows:
1. KPaul represents and warrants that, as of the date of this Consent Order, it has ceased all use of the trademark SECURESWITCH® in connection with the sale or offering for sale of all products as well as in all advertising and promotional materials.
2. KPaul represents and warrants that it will not in the future use the trademark SECURESWITCH® in connection with the sale or offering for sale of any products or in any advertising or promotional materials relating or referring to any products not actually supplied by Market Central.
4. Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, it is hereby stipulated and agreed by and between Market Central and KPaul, through their respective duly authorized counsel, that the Action be and hereby is DISMISSED without prejudice, each side to bear its own costs and fees.
5. The United States District Court for the Western District of Pennsylvania shall retain jurisdiction for any action to enforce or interpret this Consent Order. Agreed.
_____________
Mark A. Willard, Esq.
Pa. I.D. No. 18103
Audrey K. Kwak, Esq.
Pa. I.D. No. 200527
ECKERT SEAMANS CHERIN &
AMP; MELLOTT, LLC
_____________
Michael D. Hardy, Esq.
Barnes & Thomburg, LLP
Attorney for Chikol LLC, Receiver for
Defendant, KPaul Properties, LLC
Attorneys for Plaintiff,
Market Central, Inc.
IT IS SO ORDERED, this ___ day of March, 2012.
______________________
Gary L. Lancaster, United States District Court Judge