Free Stipulation and Order - District Court of California - California

Case 5:07-cv-03523-JW

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1 ANNETTE L. HURST (Bar No. 148738) 2 ELISABETH R. BROWN (Bar No. 234879) 3 HELLER EHRMAN LLP 4 5 6 7

UNIT ED

DANIEL N. KASSABIAN (Bar No. 215249)

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S DISTRICT TE C TA

333 Bush Street San Francisco, California 94104-2878 Telephone: +1.415.772.6000 Facsimile: +1.415.772.6268 Email: [email protected] [email protected] [email protected]

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8 Attorneys for Plaintiffs 9

F D IS T IC T O R

GYM-MARK, INC. and THE GYMBOREE CORPORATION UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

12 13 CORPORATION, 14 15 16 17 MERVYN'S LLC, 18 19 20 21 22 23 24 25 26 27
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GYM-MARK, INC. and THE GYMBOREE

Case No.: C 07-03523 JW (HRL) STIPULATION AND [PROPOSED] ORDER FOR CONSENT INJUNCTION

Plaintiffs, v. CHILDREN'S APPAREL NETWORK, LTD. and

Defendants.

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STIPULATION AND [PROPOSED] ORDER FOR CONSENT INJUNCTION

Case No.: C 07-3523 JW (HRL)

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This Stipulation and Order for Consent Injunction is made between Plaintiffs Gym-Mark, Inc. ("Gym-Mark") and The Gymboree Corporation ("Gymboree") (collectively, "Plaintiffs") and Defendants Children's Apparel Network ("CAN") and Mervyn's LLC ("Mervyn's") (collectively, "Defendants"), by and through their counsel of record with reference to the following: WHEREAS, on or about July 6, 2007 Plaintiffs filed the complaint in this action entitled Gym-Mark, Inc. and The Gymboree Corporation v. Mervyn's LLC and Children's Apparel Network, Ltd., Case No. C 07-03523 (JW) (HRL), in which Plaintiffs alleged, inter alia, copyright infringement under 17 U.S.C. § 101 et seq., and unfair competition under Cal. Bus. & Prof. Code § 17200 et seq. (the "Action") concerning certain clothing items manufactured, distributed, and offered for sale by CAN to retailers and distributed to consumers by Mervyn's, among other retailers; and WHEREAS, the Parties each now desire to resolve, compromise and settle the Action without any admission of liability; and WHEREAS, the Parties agree that a consent injunction relating to the manufacture, distribution, offering for sale or sale by Defendants of the materials depicted in Exhibit 1 is a necessary and material component of the settlement agreement; NOW, THEREFORE, Plaintiffs and Defendants, by and through their counsel of record, hereby agree and stipulate that this Consent Injunction shall be entered as a permanent injunction in this action as follows: 1. Defendants CAN and Mervyn's, and all of their agents, successors and assigns, and

all persons in active concert or participation with any of them are hereby enjoined from further manufacturing, distribution, offering for sale or sale of the items depicted in Exhibit 1; and 2. CAN, in its sole discretion, shall elect either to (a) destroy any remaining inventory

of the Exhibit 1 Items in its possession, custody, and/or control, and within ten business days thereafter supply Gymboree with an affidavit confirming such destruction, or to (b) donate all remaining inventory of the items depicted in Exhibit 1 in CAN's possession, custody, and/or control (the "Donation") to a charitable organization requiring as a condition of such Donation that

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such organization distribute all such items without consideration and entirely outside of the United States and not to one of the countries specified in Exhibit 2 hereto ("Charitable Organization"). In the event that CAN elects option (b) in this Paragraph 2, CAN shall supply Gymboree the name or names of potential Charitable Organization(s), and Gymboree shall approve, which approval shall not be unreasonably withheld, one of such Charitable Organization(s) within five business days , following which CAN shall complete the Donation and supply a confirming affidavit concerning the completion of the Donation and the Charitable Organization's agreement to be bound by the foregoing restrictions. The Donation shall not be made to an organization without Gymboree's approval. In the event CAN elects option (b) in this Paragraph 4, CAN shall have until June 30, 2008 to complete the donation in accordance with this paragraph. Notwithstanding, CAN shall use diligent efforts to complete the donation as soon as is practicable following the execution of this Agreement; and 3. Defendants CAN and Mervyn's, and all of their agents, successors, assigns, and all

persons in active concert or participation with any of them are hereby enjoined from any future infringement of Copyright Registration No. VAu682-370, including, but not limited to, manufacturing, distribution, offering to sell or selling the garments depicted in Exhibit 1; and 4. The Court shall retain jurisdiction over this action to entertain such further

proceedings and to enter such further orders as may be necessary or appropriate to implement and/or enforce the provisions of this Consent Injunction.

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STIPULATED AND AGREED.

Dated: February 20, 2008

HELLER EHRMAN LLP By _________/s/ Annette L. Hurst________________ ANNETTE L. HURST Attorneys for Plaintiffs GYM-MARK, INC. and THE GYMBOREE CORPORATION

10 Dated: February 20, 2008 11 12 13 14 15

DORSEY & WHITNEY LLP By _________/s/ Bruce R. Ewing_________________ BRUCE R. EWING Attorneys for Defendants CHILDREN'S APPAREL NETWORK and MERVYN'S LLC

16 IT IS SO ORDERED. Pursuant to the Stipulation, the Clerk of Court shall close this file. 17
March 3, 2008 18 Dated:________________ By _________________________________________ The Honorable James Ware United States District Court Judge

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ATTESTATION OF E-FILED SIGNATURE

I hereby attest that I have on file all holograph signatures for any signatures indicated by a "conformed" signature (/s/) within this efiled document.
By _________/s/ Annette L. Hurst________________ ANNETTE L. HURST Attorneys for Plaintiffs GYM-MARK, INC. and THE GYMBOREE CORPORATION

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EXHIBIT 1A

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EXHIBIT 1B

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EXHIBIT 1C

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EXHIBIT 1D

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EXHIBIT 2

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EXHIBIT 2

Argentina Australia Chile China Colombia Costa Rica Cyprus Dominican Republic Ecuador El Salvador France Greece Guatemala Honduras Hong Kong India Indonesia Ireland Japan

Macau Malaysia Mexico Nicaragua Peru Philippines Portugal Puerto Rico Republic of Panama Singapore South Korea South Africa Spain Switzerland Taiwan Thailand Turkey UK