Opinion
Civil Action No. 11-cv-00386-RBJ-CBS.
October 17, 2011
ORDER
This Order is before the Court upon Plaintiff Thule Organization Solutions, Inc. and Defendant KrooUSA, Inc.'s Joint Motion for Entry of Stipulated Consent Judgment. Plaintiff Thule Organization Solutions, Inc. ("Plaintiff" or "Thule") filed its Complaint on February 14, 2011 against KrooUSA, Inc. ("Defendant" or "KrooUSA"). The Complaint set forth claims against KrooUSA for willful infringement of United States Design Patent No. D592,400, unfair competition and fraudulent misrepresentation. On October 11, 2011, Thule and KrooUSA reached a private settlement resolving all issues raised by this action.
NOW THEREFORE, Thule and KrooUSA, having achieved settlement resolving the subject litigation, and having consented to the entry of the following judgment, as evidenced by the signatures of their counsel hereto,
It is ORDERED, ADJUDGED AND DECREED that:
1. This Court has jurisdiction over the parties and subject matter hereto, and venue is proper in this District. This Court retains jurisdiction over this Stipulated Consent Judgment and Permanent Injunction and any applications with regard to enforcement thereof.
2. Thule is the owner of United States Design Patent No. D592,400 ("the Patent").
3. This Court permanently enjoins Defendant, KrooUSA, its officers, directors, parents, affiliates, divisions, subsidiaries, successors, assigns, trustees, beneficiaries, administrators, executors, heirs, managers, agents, servants, and employees, and all those acting in active concert or participation with them, from directly or indirectly infringing the Patent until the Patent has either expired, been abandoned, or ruled invalid or unenforceable in a final, non-appealable decision by a court of competent jurisdiction, by making, using, selling, offering for sale, and importing flexible storage sleeves in the United States of the type specifically shown in Exhibit B of the Complaint and colorable imitations thereof.
4. The Complaint filed herein is hereby dismissed with prejudice.
5. As part of this Stipulated Consent Judgment, KrooUSA represents that, since May 19, 2009, it has manufactured, sold, offered for sale or used at least 2,143 units of Accused Products as identified by the following Product Nos. 90999; 11334; 11463; 11464; 11487; 11488; 11489; 11490; 11504; 11505; 11506; 10959; 10960; 10961; 10962; 11563; 11564; 11615; 11076; 11162; 11163; 11160; 11159; 11161; 11493; 11494; 11646; 11645; 11644; 11643; all Kindle reversible sleeves; AKR016**; ND09MD**; ND10MD**; ND15MD**; NDEMD**; MDK2MD**; EUNISV**; and NH21RC**. KrooUSA further represents and warrants that it is no longer manufacturing, selling, offering for sale, using or importing any of the foregoing products, or colorable imitations thereof, into the United States.
6. KrooUSA also represents and warrants that it has not at any time represented to a customer, reseller or other third-party that it was licensed to practice the Patent or had any license from Thule with respect to the Patent.
7. The Clerk is hereby ordered to enter judgment dismissing this action and incorporating the permanent injunction of paragraph 3 of this Consent Judgment.
8. If KrooUSA violates any term of this Stipulated Consent Judgment, including paragraphs 3, 5 or 6 above, and fails to cure such violation within thirty (30) days after receipt of written notice of the violation, KrooUSA shall be liable for liquidated damages in the amount equal to 21% of the gross revenues collected by KrooUSA for Accused Products sold during the period of time KrooUSA was in violation of any material term of this Stipulated Consent judgment and shall pay Thule its reasonable attorneys' fees incurred in connection with a successful application to the Court for enforcement thereof.
9. Each party shall bear its own costs and attorney fees.