Opinion
Anna S. McLean (Bar No. 142233) Nathaniel R. Spencer-Mork (Bar No. 226886) HELLER EHRMAN LLP, San Francisco, CA, John C. Ulin (No. 165524) HELLER EHRMAN LLP, Los Angeles, CA, Attorneys for Plaintiff PHILIP MORRIS USA INC.
[PROPOSED] ORDER FOR DEFAULT JUDGMENT AS TO DEFENDANTS ISADORA BERNAL AND LEULI MARLENE ULLOA BERNAL, EACH INDIVIDUALLY AND DOING BUSINESS AS WATSONVILLE MARKET #2]
MAXINE M. CHESNEY, District Judge
Philip Morris USA Inc. ("Philip Morris USA" or "Plaintiff"), having properly served a Summons and Complaint upon Isadora Bernal and Leuli Ulloa Marlene Bernal, each individually and doing business as Watsonville Market #2, a/k/a Juanitos Supermercado (hereinafter "Defendants"), and Defendants having failed to timely respond to Complaint, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. This is an action for: (i) infringement of registered trademarks in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114; (ii) false designation of origin and trademark and trade dress infringement in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); and (iii) unfair competition and trademark infringement in violation of the common law of the State of California. This Court has personal jurisdiction over Philip Morris USA and Defendants, and subject matter jurisdiction of the matters in controversy between Philip Morris USA and Defendants. Venue in this judicial district is proper.
2. Defendants have not made any objections regarding the sufficiency of process or the sufficiency of service of process in this section. Any objections Defendants may have regarding the sufficiency of process or the sufficiency of service of process in these actions are hereby deemed waived.
3. Philip Morris USA manufactures cigarettes, including the famous MARLBORO® brand, for sale in the United States. Philip Morris USA is the registered owner of the following MARLBORO® and MARLBORO®-related trademarks on the Principal Register of the United States Patent and Trademark Office, all of which are valid, subsisting and incontestable pursuant to 15 U.S.C. § 1065 (collectively "Philip Morris USA Marks"):
Registration Registration Trademark Number Date 68, 502 April 14, 1908 MARLBORO® 938, 510 July 25, 1972 MARLBORO Red Label®
4. Philip Morris USA has spent substantial time, effort, and money advertising and promoting the Philip Morris USA Marks throughout the United States, and these marks have consequently developed significant goodwill, have become distinctive, and have acquired secondary meaning. As a result of the sale of counterfeit MARLBORO® cigarettes, Philip Morris USA is suffering a loss of the enormous goodwill associated with the Philip Morris USA Marks, and is losing profits from lost sales of genuine products.
5. Beginning on or about June 7, 2005, and subsequent to Philip Morris USA's adoption and first use of the Philip Morris USA Marks, Defendants offered for sale and sold to the general public counterfeit MARLBORO® brand cigarettes.
6. Philip Morris USA filed the Complaint in this matter on July 5, 2006.
7. Defendants were served with Summons and Complaint on July 12, 2006.
8. Entry of Default was recorded against Defendants due to their failure to answer or otherwise respond to the Complaint. On January 3, 2007, Plaintiff presented this Court with its Application for Default Judgment against Defendants.
9. Accordingly, it is hereby ORDERED that Defendants, and their officers, agents, servants, employees, and attorneys, and all persons in active concert or participation with them, are hereby PERMANENTLY ENJOINED from:
(i) purchasing, selling, offering for sale, or otherwise using in commerce any counterfeit MARLBORO® and/or MARLBORO LIGHTS® brand cigarettes; and
(ii) assisting, aiding or abetting any other person on entity in purchasing, selling, offering for sale, or otherwise using in commerce any counterfeit MARLBORO® and/or MARLBORO LIGHTS® brand cigarettes.
10. IT IS FURTHER ORDERED THAT, pursuant to 15 U.S.C. § 1117(c), Defendants are liable to Plaintiff in the amount of $10,000 for violations of Sections 32 and 43(a) of the Lanham Act.
11. IT IS FURTHER ORDERED THAT, pursuant to 15 U.S.C. § 1117(a)(3), Defendants are liable to Plaintiff in the amount of $440.00 for costs incurred in bringing this action against Defendants.
12. The terms of this Judgment and Permanent Injunction shall be enforceable against Defendants, their successors in interest and assigns, and any persons or business entities working in concert with Defendants.
13. There being no just reason for delay, the entry of this Default Judgment by the United States District Court constitutes entry of final judgment as to all claims asserted in this action by Philip Morris USA against Defendants pursuant to Federal Rule of Civil Procedure 54(b).
14. The court shall retain jurisdiction to enforce this Default Judgment and Permanent Injunction.
IT IS SO ORDERED.