I hereby certify that the annexed instrument is a true and correct copy of the original on file in my office.
RICHARD W. WIEKING
Clerk, U.S. District Court
Northern District of California
By: Mary Ann Buckley
Deputy Clerk Date: 9-8-97
SEP 8 1997
RICHARD W. WIEKING
CLERK, U.S. DISTRICT COURT,
NORTHERN DISTRICT OF CALIFORNIA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
PLAYBOY ENTERPRISES, INC.,
CALVIN DESIGNER LABEL, CALVIN FULLER, and CALVIN MERIT,
Civil Action No.
ORDER OF PRELIMINARY
This cause has been presented to the Court, upon the motion of Plaintiff Playboy Enterprises, Inc. ('PEI'), seeking an Order of Preliminary Injunction during the pendency of this action, from infringing PEI=s trademarks on Defendants= Internet World Wide Web sites.
PEI's motion is supported by a Complaint; a Memorandum of Points and Authorities; the Declaration of Michelle A. Kaiser, Staff Attorney of PEI; and the Declarations of Maryann Hayes and two Declarations of Neil A. Smith, outside intellectual property counsel to PEI.
This Court having given full consideration to all of PEI=s papers and the relevant authorities, and in accordance with Federal Rule of Civil Procedure 65(b), makes the following Order:
IT IS HEREBY ORDERED AND ADJUDGED as follows:
IT IS THEREFORE FURTHER ORDERED that:
1. Defendants, their officers, agents, servants, employees, attorneys, parents, subsidiaries and related companies, and all persons acting for, with, by, through or under them having notice of this Order by personal service, electronic mail, or otherwise, and each of them, shall be immediately preliminarily enjoined and restrained during the pendency of this action, from:
a. using in any manner the PLAYMATE or PLAYBOY trademarks, and any other term or terms likely to cause confusion therewith, including PLAYMATELIVE or "playboyxxx.com" or "playmatelive.com", as Defendants' domain name, directory name, or other such computer address, as the name of Defendants= Web site service, in buried code or metatags on their home page or Web pages, or in connection with the retrieval of data or information or on other goods or services, or in connection with the advertising or promotion of their goods, services or web sites;
b. using in any manner the PLAYMATE or PLAYBOY trademarks in connection with the Defendants' goods or services in such a manner that is likely to create the erroneous belief that said goods or services are authorized by, sponsored by, licensed by or are in some way associated with PEI;
c. disseminating, using or distributing any Web site pages, advertising or Internet code words or titles, or any other promotional materials whose appearance so resembles the Web site pages or trademarks used by PEI, so as to create a likelihood of confusion, mistake or deception;
d. otherwise engaging in any other acts or conduct which would cause consumers to erroneously believe that Defendants' goods or services are somehow sponsored by, authorized by, licensed by, or in any other way associated with PEI; and
2.Defendants shall preserve and retain in hard copies or digital copies, all evidence and documentation relating in any way to their use of the domain names "playboyxxx.com" or "playmatelive.com" and the trademarks PLAYMATE and PLAYBOY in any form, including all records relating to such Web site or any other Web sites or subscription magazines or services where such names or marks have been used, all records relating to the names, addresses (e-mail or otherwise) of any parties with whom Defendants have communicated, and all financial records relating to such Web sites, services, magazines, or any products or services, advertising, on or offered on or through such Internet Web sites, and shall deliver back-up copies of all of the aforementioned files to Plaintiff's counsel, Neil A. Smith, Limbach & Limbach, L.L.P., 2001 Ferry Building, San Francisco, California, 94111.
3. Defendants shall immediately cease using and claiming ownership of the marks "playboy", "playmate", "playboyxxx" or "playmatelive" on the Internet. That Defendants shall immediately discontinue using the Internet Web site addresses or domain names "http://www.playboyxxx.com" and "http://www.playmatelive.com" and Defendants shall immediately request Network Solutions, Inc. to cancel all such domain name registrations.
4. That if Network Solutions, Inc. delegates complete control regarding the disposition of the registration and use of these domain names to this Court, the domain names are hereby cancelled. That Plaintiffs shall notify Network Solutions, Inc. of this Court's cancellation of the domain names "playboyxxx.com", and "playmatelive.com".
5. That Defendants shall file with the Court and serve upon Plaintiff's counsel within thirty (30) days of the entry of such Order of Preliminary Injunction an affidavit or declaration attesting to and detailing Defendants' compliance with it.
6. It is further ordered that Plaintiff shall maintain the bond previously posted in the amount of $1000.00 for this Order.
Charles A. Legge
United States District Judge
Dated: San Francisco, California
September 8, 1997