Opinion
Civil Action No. 05-cv-02417-REB-CBS.
January 31, 2006
ORDER FOR PARTIAL CONSENT JUDGMENT AND DISMISSAL
This action was commenced on November 29, 2005 by Plaintiffs Univera, Inc. d/b/a Oasis Lifesciences and Unigen Pharmaceuticals, Inc. (collectively "Oasis" or "Plaintiffs"), against Defendants Resource Maxima LLC, Gary L. Coe, Sandra J. Coe, (collectively, "Resource Maxima" and "Defendants") and SOE Trading Management ("SOE"). Oasis and Resource Maxima have agreed to settle the claims pertaining to Resource Maxima's use of the trademark AGELESS FOREVER and to terminate those claims by entry of a Order for Partial Consent Judgment and Dismissal which incorporates the terms, admissions and covenants that follow. SOE is not a party to this Order for Partial Consent Judgment and Dismissal, but does not oppose it.
THE PARTIES' TERMS OF SETTLEMENT
1. This is an action for acts of unfair competition under the laws of the United States, Title 15, United States Code; patent infringement under the law of the United States, Title 35, United States Code; violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-101 et seq.; and for trademark infringement, unfair competition, misappropriation and exploitation of business value, and tortious interference with current and future business relations, all under the common law of the State of Colorado.2. The Court has subject matter jurisdiction under 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338 and 1367. This Court has personal jurisdiction over the Defendants. Venue is proper in this judicial district.
3. Univera, Inc., formerly MaxCell BioScience, Inc., d/b/a Oasis LifeSciences is a corporation incorporated under the laws of the State of Delaware with its principal place of business at 2660 Willamette Drive NE, Lacey, Washington 98516. Univera, Inc. is a subsidiary of ECONET, Inc. Unigen Pharmaceuticals, Inc., formerly Univera Pharmaceuticals, Inc., is a corporation incorporated under the laws of the State of Delaware with its principal place of business at 1560 Broadway, Denver, Colorado 80202. Unigen Pharmaceuticals, Inc. is also a subsidiary of ECONET, Inc., and as such, is a sister company of Oasis.
4. Since at least as early as March 2003, Oasis has been engaged in the business of developing, manufacturing, and selling dietary supplements in interstate commerce in connection with its family of distinctive AGELESS trademarks, including AGELESS, AGELESSXTRA, and AGELESS PRIME (collectively, the "Oasis AGELESS Trademarks").
5. Oasis' products sold under the Oasis AGELESS Trademarks are marketed and distributed through its Web site and multi-level distribution network. Oasis provides a business plan, training, and support to its distributors.
6. Resource Maxima is in the business of selling dietary supplements in competition with Oasis throughout the United States. Resource Maxima has offered for sale and sold dietary supplements using the confusingly similar mark AGELESS FOREVER ("AGELESS FOREVER Mark").
7. Resource Maxima admits that the Oasis AGELESS Trademarks as set forth above are valid and enforceable. Resource Maxima further admits that it has used the AGELESS FOREVER Mark, which is confusingly similar to the Oasis AGELESS Trademarks, in connection with offering and selling dietary supplements.
8. The parties have agreed to the entry of this Order for Partial Consent Judgment and Dismissal which incorporates certain terms, admissions, and covenants of settlement resolving the dispute between the parties.
9. Each party has read this Order for Partial Consent Judgment and Dismissal and agrees to be fully bound by its terms.
THEREFORE, IT IS ORDERED AND ADJUDGED:
A. Resource Maxima, and any of their principals, agents, servants, employees, successors and assigns, and all those in privity, concert or participation with Resource Maxima who receive actual notice of this Order by personal service or otherwise, are hereby immediately and permanently enjoined and restrained from use of the AGELESS FOREVER Mark in connection with providing, advertising or promoting dietary supplements or dietary supplementrelated goods and services, and shall cease all such use no later than the Effective Date of this Order, including without limitation:
(i) using, imitating, copying, duplicating, or otherwise making unauthorized use of the Oasis AGELESS Trademarks or any trademark confusingly similar to the Oasis AGELESS Trademarks, including, but not limited to, trademarks containing the word "ageless" or "age";
(ii) manufacturing, producing, distributing, circulating, selling, offering for sale, advertising, promoting or displaying any product, advertisement, card or sign, bearing any simulation, reproduction, counterfeit, copy or colorable imitation of the Oasis AGELESS Trademarks, including, but not limited to, trademarks containing the word "ageless" or "age";
(iii) using any simulation, reproduction, counterfeit, copy or colorable imitation of the Oasis AGELESS Trademarks, including, but not limited to, trademarks containing the word "ageless" or "age", in connection with the promotion, advertisement, display, sale, offering for sale, manufacture, production, circulation or distribution of any dietary supplement product or service in confusingly similar fashion as to confusingly relate or connect, or tend to confusingly relate or connect, such products or services in any way to Oasis or to any products or services sponsored or approved by, or connected with Oasis;
(iv) using any false designation of origin or false description which can or is likely to lead the trade or public, or individual members thereof, to mistakenly believe that any good or service advertised, promoted, offered or sold by Resource Maxima is connected with, or sponsored, approved, endorsed, or authorized by Oasis, including statements that Resource Maxima has obtained rights to market and offer for sale Oasis' original AGELESSXTRA formulation;
(v) causing likelihood of confusion or injury to Oasis' business reputation and to the distinctiveness of the Oasis AGELESS Trademarks by unauthorized use of the same;
(vi) engaging in any other activity constituting unfair competition or infringement of the Oasis AGELESS Trademarks or Oasis' rights in, or to use, or to exploit the same; and
(vii) assisting, aiding or abetting any other person or business entity in engaging in or performing any of the activities referred to in subparagraphs (i) through (vi) above.
B. Violation by Resource Maxima of the injunctive relief set forth herein would cause irreparable harm and injury and, in such event, Oasis shall be entitled to seek enforcement of the specific provisions of this Consent Judgment.
C. In view of the entry of this Order and Partial Consent Judgment, the First, Second, Third, Fourth and Fifth Claims for Relief are hereby dismissed with prejudice, each party to pay its own fees and costs.
D. The Court further finds that exercise of continued jurisdiction is warranted for the purpose of interpretation and enforcement of this Consent Judgment, and shall retain jurisdiction over the parties and the subject matter of this litigation for that purpose only.
E. All parties have consented to the entry of this Order for Partial Consent Judgment and Dismissal without further notice.
F. All parties have agreed not to issue press releases or other similar means of public disclosure regarding the terms set forth in this Order for Partial Consent Judgment and Dismissal. Notwithstanding the foregoing, either party may provide to its associates, that is, its independent distributors, an email that contains an account of the status of this litigation and the nature of this Order for Partial Consent Judgment and Dismissal.
DONE AND ORDERED.