IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA THE OKLAHOMA PUBLISHING COMPANY, a Delaware corporation, JACOB JAKE TROTTER, an individual, Plaintiffs, vs. Case No. CIV C JAMES W. CONRADT a/k/a DARTH HUSKER, an individual, Defendant. FINAL JUDGMENT AND CONSENT DECREE The parties to this action, having reached an agreement and settlement of this dispute, have consented to the entry of this Final Judgment and Consent Decree (the Judgment, based upon the following stipulated findings of fact and conclusions of law, which the Court hereby adopts: Findings of Facts and Conclusions of Law On July 14, 2008 Plaintiffs, The Oklahoma Publishing Company ( OPUBCO and Jacob Jake Trotter ( Trotter (collectively, Plaintiffs commenced the above-captioned action by filing a Complaint against James W. Conradt a/k/a Darth Husker ( Conradt. The Complaint alleges claims against Conradt for infringement of OPUBCO s trademarks and trade dress, infringement of OPUBCO s copyrighted NEWSOK.COM website; false light; right of

2 publicity violation; deceit; libel; false destination of origin; deceptive and unfair trade practices; trademark dilution; common law trademark infringement; unfair competition and passing off. Plaintiffs effectively served the Complaint on Conradt on July 15, Since at least as early as 1903, OPUBCO has been using THE OKLAHOMAN service mark to identify its newspaper publishing services. OPUBCO is the owner of a federal service mark registration for the mark THE OKLAHOMAN, Registration No. 2,299,554 for newspaper publishing services. Since at least as early as 2001, OPUBCO has been using the NEWSOK.COM service mark in association with online news services. OPUBCO is the owner of a federal trademark registration for the mark NEWSOK.COM, Registration No. 2,954,538 for providing on-line news in the nature of current news. Since at least as early as 2007, OPUBCO has been using in interstate commerce the design of its NEWSOK.COM website as trade dress (the NEWSOK.COM Trade Dress. Trotter is a staff writer for THE OKLAHOMAN and the NEWSOK.COM website who covers matters related to the University of Oklahoma football program. On or about July 9, 2008, Conradt published an article on the internet entitled Two Sooner Quarterbacks Arrested for Intent to Distribute Cocaine (the

3 Article. Conradt created and published the Article by himself and did not receive any assistance or input from anyone else. Conradt posted a link to his Article on his website, and on a Rivals.com Internet message board using his screen name Darth Husker. Conradt s Article stated, among other things, that two University of Oklahoma football players had been arrested for intent to distribute cocaine. Conradt s Article appeared to be factual in nature and appeared to be a story originating from OPUBCO and the NEWSOK.COM website. None of the substantive information in Conradt s Article was true. Conradt used the format and template of OPUBCO s NEWSOK.COM website in creating his Article and used Trotter s name in the article s byline as author. Conradt s Article used OPUBCO s NEWSOK.COM and THE OKLAHOMAN marks and NEWSOK.COM Trade Dress without authorization from OPUBCO. Conradt used Trotter s name as the author of his Article without permission from Trotter. Conradt contends that he intended the Article to be a humorous parody and satire and did not intend readers to believe the article was true. OPUBCO contends that Contradt intended readers to believe the article was true, was written

4 by Trotter and was published by OPUBCO. The Court has original jurisdiction of these claims pursuant to 28 U.S.C and 1338, and 15 U.S.C Jurisdiction as to all other causes of action is proper pursuant to 28 U.S.C because the causes of action set forth are so related that they form a part of the same cause or controversy. Conradt consents to personal jurisdiction in this Court with regard to the claims asserted against him by OPUBCO in this matter, and for purposes of enforcement of this Consent Decree. Venue is proper in the Western District of Oklahoma pursuant to 28 U.S.C PERMANENT INJUNCTION AND ORDER Based on the preceding Findings of Facts and Conclusions of Law, it is hereby ORDERED, ADJUDGED and DECREED: Conradt and his agent, attorney and all persons acting for, with, by, through or under authority from Conradt, is hereby permanently restrained and enjoined from: a. Any and all use of OPUBCO s federally registered NEWSOK.COM and THE OKLAHOMAN marks, NEWSOK.COM Trade Dress or any other mark which is likely to cause confusion or cause a mistake or deceive as to affiliation, connection, sponsorship or association of Conradt with OPUBCO; b. Copying, without OPUBCO s written permission, (1 content

5 contained on or originating from OPUBCO s copyrighted NEWSOK.COM website, or (2 content contained on any other website of OPUBCO or any website of an OPUBCO affiliate or subsidiary that is substantially similar to the NEWSOK.COM website and which is identified as an OPUBCO website or an OPUBCO affiliate or subsidiary website in the Privacy Policy, Report an Issue, Terms of Use, or Contact Us sections of such website (Conradt is required to use reasonable diligence to determine if a website is owned by OPUBCO or its affiliates or subsidiaries by reviewing the above-listed sections of the website; c. Falsely attributing the name of any OPUBCO Reporter, including Trotter, as the author of any article created and/or published by Conradt; d. Promoting the Article, republishing the Article, or publicly commenting on the Article; and e. Publicly commenting on (1 any article or other writing authored and published by OPUBCO in THE OKLAHOMAN newspaper and/or the NEWSOK.COM website, or (2 any article or other writing authored and published by OPUBCO or any OPUBCO affiliate or subsidiary on a website that is substantially similar to the NEWSOK.COM website and which is identified as an OPUBCO website or an OPUBCO affiliate or subsidiary website in the Privacy Policy, Report an Issue, Terms of Use, or Contact Us sections of such website (Conradt is required to use reasonable diligence to determine if a website is owned by OPUBCO or its affiliates or subsidiaries by reviewing the

6 above-listed sections of the website. Public comments, include, but are not limited to, comments posted on an OPUBCO website, including the NEWSOK.COM website, or an OPUBCO affiliate or subsidiary website. If Conradt engages in any activity prohibited by paragraph 20, OPUBCO will be irreparably harmed, money damages will be difficult, if not impossible to calculate, and, therefore, upon proof to this Court that Conradt has engaged in activity prohibited by this Judgment, Conradt shall pay to OPUBCO Twenty-Five Thousand Dollars ($25, for each violation and prohibited activity identified in paragraph 21 of this Judgment. Conradt shall execute the letter of apology attached as Exhibit 1, which may be published by OPUBCO and Conradt. Conradt shall pay OPUBCO an amount that has been agreed upon by the parties. Plaintiffs and Conradt acknowledge that this Judgment was negotiated by and between the parties and their counsel, and that, in any construction of this Judgment, it shall not be construed in favor of or against any party based upon the identity of the author or any provision of it. The parties acknowledge that they have knowingly and voluntarily entered into this Judgment after reviewing the same with their counsel or having ample opportunity to consult with counsel and that they understand the undertakings, obligations and terms contained in these documents. The parties agree to execute, deliver, or file any other documents reasonably necessary to fulfill the terms and obligations of this Judgment.

7 Except as expressly set forth in this Judgment, all claims in this action are hereby dismissed with prejudice. No appeals shall be taken from this Judgment, and the parties hereby waive all right to appeal. This Court shall retain jurisdiction over this matter to enforce a violation of this Judgment s terms. If any such violation occurs, the Court shall award, (a without regard to proof of actual damages, an amount provided for in paragraph 22 to compensate Plaintiffs for such breach, as well as (b injunctive relief enjoining any further breach of this Judgment, or such modifications to the present Judgment as the Court deems appropriate, (c reasonable attorneys fees, costs and disbursements, and (d such other relief as the Court deems just and proper. IT IS SO ORDERED this the 8th day of September, 2008.

8 APPROVED AS TO FORM AND SUBSTANCE: s/ Spencer F. Smith Spencer Smith, OBA #20430 Charles L. McLawhorn, III, OBA #19523 McAFEE & TAFT Tenth Floor, Two Leadership Square 211 North Robinson Ave. Oklahoma City, Oklahoma Telephone: Facsimile: Attorneys for Plaintiffs The Oklahoma Publishing Company and Jacob Jake Trotter s/ Peter D. Kennedy (Signed by filing attorney with permission of Defendants counsel Peter D. Kennedy, Texas Bar No. Graves Dougherty Hearon & Moody 401 Congress Avenue, Suite 2200 Austin, Texas Telephone: Facsimile: Attorneys for Defendant James W. Conradt