Pepsico, Inc. et al v. Ram Traders, Ltd., No. 2:2011cv02017 - Document 21 (D. Nev. 2013)

Court Description: FINAL JUDGMENT in favor of Plaintiffs Frito-Lay North America, Inc. and Pepsico, Inc. and against Defendant Ram Traders, Ltd. Signed by Judge James C. Mahan on 01/16/2013. (Copies have been distributed pursuant to the NEF - AC)
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Pepsico, Inc. et al v. Ram Traders, Ltd. Doc. 21 Case 2:11-cv-02017-JCM-NJK Document 20 1 2 3 4 5 6 7 JOLLEY URGA WIRTH WOODBURY & STANDISH 3800 Howard Hughes Parkway, 16th Floor, Las Vegas, Nevada 89169 Telephone: (702) 699-7500 Fax: (702) 699-7555 8 9 10 11 12 Filed 01/09/13 Page 1 of 4 William R. Urga Nevada State Bar No. 1195 wru@juww.com JOLLEY URGA WIRTH WOODBURY & STANDISH 3800 Howard Hughes Pkwy Wells Fargo Tower - 16th Floor Las Vegas, Nevada 89169 Telephone: (702) 699-7500 Facsimile: (702) 699-7555 PATTISHALL MCAULIFFE NEWBURY HILLIARD & GERALDSON LLP Jonathan S. Jennings (IL No. 6204474) Daniel In Hwang (IL No. 6293052) 311 South Wacker Drive, Suite 5000 Chicago, IL 60606 Telephone: (312) 554-8000 Facsimile: (312) 554-8015 Attorneys for Plaintiffs PepsiCo, Inc. and Frito-Lay North America, Inc. 13 14 UNITED STATES DISTRICT COURT 15 DISTRICT OF NEVADA 16 17 18 19 20 21 22 23 PEPSICO, INC., a North Carolina ) Case No. 2:11-cv-02017-JCM-RJJ corporation, and FRITO-LAY NORTH ) AMERICA, INC., a Delaware corporation, ) ) [PROPOSED] FINAL JUDGMENT ) Plaintiffs, ) v. ) ) RAM TRADERS, LTD., a Nevada ) corporation, ) ) Defendant. ) 24 25 Plaintiffs, PepsiCo, Inc. (“PepsiCo”) and Frito-Lay North America, Inc. (“Frito-Lay”), 26 (PepsiCo and Frito-Lay are hereinafter collectively referred to as “Plaintiffs”) brought this action 27 against Defendant, Ram Traders, Ltd. (“Defendant”) to prevent its advertising and sale of PEPSI, 28 Page 1 of 4 Dockets.Justia.com Case 2:11-cv-02017-JCM-NJK Document 20 Filed 01/09/13 Page 2 of 4 1 DIET PEPSI, PEPSI-COLA, SIERRA MIST, and MOUNTAIN DEW can safe products; PEPSI, 2 DIET PEPSI, MOUNTAIN DEW, and AQUAFINA bottle safe products; and FRITO-LAY, 3 DORITOS, CHEETOS, FRITOS, and CHESTER CHEETAH canister safe products. 4 5 6 1. This Court has personal jurisdiction over the parties, including Defendant, as well as subject matter jurisdiction over this action. 8 JOLLEY URGA WIRTH WOODBURY & STANDISH 3800 Howard Hughes Parkway, 16th Floor, Las Vegas, Nevada 89169 Telephone: (702) 699-7500 Fax: (702) 699-7555 7 2. 9 United States and has made continuous use of the trademarks PEPSI, DIET PEPSI, PEPSI- 10 COLA, AQUAFINA, SIERRA MIST, and MOUNTAIN DEW on their own, or with designs or 11 PepsiCo manufactures, markets, distributes, and sells beverage products throughout the other variations (collectively, the “PEPSICO Marks”), in connection with the manufacture, 12 marketing, distribution and sale of beverage products (the “PEPSICO Products”). 13 14 3. PepsiCo owns federal trademark registrations for its PEPSICO Marks issued by the 15 United States Patent and Trademark Office in connection with its PEPSICO Products. 16 4. 17 the United States and has made continuous use of the trademarks FRITO-LAY, DORITOS, 18 CHEETOS, FRITOS, and CHESTER CHEETAH, on their own, or with designs or other 19 Frito-Lay manufactures, markets, distributes, and sells snack food products throughout variations (collectively, the “FRITO-LAY Marks”), in connection with the manufacture, 20 marketing, distribution, and sale of snack food products (the “FRITO-LAY Products”). 21 22 5. Frito-Lay owns federal trademark registrations for its FRITO-LAY Marks issued by the 23 United States Patent and Trademark Office in connection with its FRITO-LAY Products. 24 6. 25 safes bearing the PEPSI, PEPSI-COLA, DIET PEPSI, SIERRA MIST, and MOUNTAIN DEW 26 trademarks and trade dress, and bottle safes bearing the PEPSI, DIET PEPSI, MOUNTAIN 27 Without PepsiCo's consent, Defendant has advertised and sold in the United States can DEW, and AQUAFINA trademarks and trade dress, all of which are manufactured from actual 28 Page 2 of 4 Case 2:11-cv-02017-JCM-NJK Document 20 Filed 01/09/13 Page 3 of 4 1 PEPSICO Products. 2 7. 3 bearing the FRITO-LAY Marks and Frito-Lay’s trade dress, which are manufactured from actual 4 Without Frito-Lay's consent, Defendant has sold in the United States canister safes FRITO-LAY Products. (These can, bottle, and canister safes bearing the PEPSICO Marks, 5 6 FRITO-LAY Marks, and the PEPSICO Products and FRITO-LAY Products’ trade dress are hereinafter referred to collectively as the “Infringing Safes”). 8 JOLLEY URGA WIRTH WOODBURY & STANDISH 3800 Howard Hughes Parkway, 16th Floor, Las Vegas, Nevada 89169 Telephone: (702) 699-7500 Fax: (702) 699-7555 7 8. 9 10 Defendant's advertising and sale of the Infringing Safes constitutes: a. trademark infringement in violation of section 32 of the Lanham Act, 15 U.S.C. § b. unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1114; 11 12 1125(a); 13 c. trademark infringement in violation of Nevada common law; 15 d. unfair competition in violation of Nevada common law; 16 e. deceptive trade practices in violation of N.R.S. § 598.0915; 17 f. dilution in violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c); and 18 g. dilution in violation of N.R.S. § 600.435. 14 19 9. Defendant, its parent, affiliated and subsidiary companies, and the partners, agents, 20 officers, directors, servants, employees, its manager Ricky Kumar, and attorneys and all of them, 21 22 23 24 their successors and assigns, and all others in active concert or participation with any of them, are permanently enjoined and restrained from: a. Manufacturing, distributing, selling, offering for sale, advertising or promoting, 25 hiding or destroying, safes consisting of cans, can safes or stash cans bearing any of Plaintiff 26 PepsiCo's trademarks, including the trademarks PEPSI, PEPSI-COLA, DIET PEPSI, SIERRA 27 MIST, MOUNTAIN DEW, and any materials bearing a colorable imitation of these trademarks 28 Page 3 of 4 Case 2:11-cv-02017-JCM-NJK Document 20 1 2 3 4 Filed 01/09/13 Page 4 of 4 (hereinafter “Can Safes”); b. Manufacturing, distributing, selling, offering for sale, advertising or promoting, hiding or destroying, safes consisting of bottles, hideaway bottles, stash bottles or bottle safes bearing any of Plaintiff PepsiCo's trademarks, including the trademarks PEPSI, DIET PEPSI, 5 6 7 JOLLEY URGA WIRTH WOODBURY & STANDISH 3800 Howard Hughes Parkway, 16th Floor, Las Vegas, Nevada 89169 Telephone: (702) 699-7500 Fax: (702) 699-7555 8 MOUNTAIN DEW, AQUAFINA, and any materials bearing a colorable imitation of these trademarks (hereinafter “Bottle Safes”); c. Manufacturing, distributing, selling, offering for sale, advertising or promoting, 9 hiding or destroying, canister safes bearing any of Plaintiff Frito-Lay's trademarks, including the 10 trademarks FRITO-LAY, DORITOS, CHEETOS, FRITOS, CHESTER CHEETAH, and any 11 materials bearing a colorable imitation of these trademarks (hereinafter “Canister Safes”); 12 d. Doing any other act or thing likely to confuse, mislead or deceive members of the 13 14 15 16 public into believing that Defendant's Can Safes, Bottle Safes, or Canister Safes emanate from, or are connected with, licensed, sponsored or approved by Plaintiffs; and e. Assisting, aiding or abetting any other person or business entity in engaging in 17 any of the activities prohibited in subparagraphs (a) through (d) above. 18 SO ORDERED AND ADJUDGED: 19 20 January 16, 2013. Dated this ___ day of ________________, 2013. 21 22 23 ___________________________________ United States District Judge 24 25 26 27 28 Page 4 of 4