NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT

1 1 1 1 1 0 1 Sundesa, LLC, a Utah Limited Liability Company, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiff, Harrison-Daniels, Inc., a Delaware Corporation, Defendant. NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT Civil Action No. :-cv-0-odw-sh ORDER GRANTING PLAINTIFF S APPLICATION FOR DEFAULT JUDGMENT [] HON. OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE COURTROOM BEFORE THE COURT is Plaintiff s Application for Default Judgment (the Application ), made pursuant to Rule (b)() of the Federal Rules of Civil Procedure and Local Rule -1 in the above-captioned action (the Action ). The Court has carefully considered the Application, the supporting memorandum of points and authorities, and all documents of record in the Action, and hereby finds, as explained in the findings of fact and conclusions of law set forth below, that Sundesa is entitled to default judgment in its favor and against Harrison-Daniels, Inc. ( Defendant ) that includes an award of money damages in an amount to be determined at a supplemental hearing before this Court and entry of a permanent injunction, as requested by Sundesa. Therefore, the Court ORDERS that Sundesa s Application should be, and

1 1 1 1 1 0 1 hereby is, GRANTED with the exception of costs and attorneys fees, and that judgment be entered in Sundesa favor and against Defendant as set forth below. 1 FINDINGS OF FACT On November, 0, Sundesa commenced the Action by filing its Complaint against Defendant. (Dkt. No. 1.) Sundesa s Complaint alleges that Defendant makes, uses, sells, and offers for sale, and imports counterfeit shaker cups that embody at least claim 1 of United States Patent No.,,0 (the 0 Patent ) and allow users to perform the methods claimed in at least claim 1 of the 0 Patent (the Accused Products ). (Dkt. No. 1.) Examples of the Accused Products are depicted in Exhibit E to Sundesa s Complaint. (Dkt, No. 1, Exhibit E.) Sundesa s Complaint also alleges that each of the Accused Products incorporate the claimed design of either United States Design Patent Nos. D, ( Design Patent ); D, ( Design Patent ); or D, ( Design Patent ) (referenced herein collectively with the 0 Patent as the Asserted Patents ). (Id.) Sundesa s Complaint further alleges that Defendant s above-referenced activities with respect to the Accused Products constitute infringement of Sundesa s rights in the Asserted Patents pursuant to U.S.C. 1 et seq. (Id.) Sundesa is the exclusive licensee of the following federally registered trademarks: BLENDER BALL (Reg. No.,1,1), BLENDER BOTTLE (Reg. No.,1,), SPORTMIXER (Reg. No.,,0), the logo mark depicted here (Reg. No.,0,0) ( Logo Mark 1 ), the logo mark depicted here (Reg. No.,,1) ( Logo Mark ) (collectively Asserted Trademarks ). (Id.) Sundesa s complaint alleges that Defendant makes, sells, and offers for sale, and imports the Accused Products and uses the Asserted Trademarks to market the Accused Products. Sundesa asserts that Defendant s use of the Asserted Trademarks to market its products constitutes trademark infringement pursuant to 1 U.S.C.. (Id.) (Dkt. No. 1,,.) 1 After carefully considering the papers filed in support of and in opposition to the Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. ; L.R. -1. 1

1 1 1 1 1 0 1 Sundesa s complaint further asserts claims for false designation and unfair competition under 1 U.S.C. 1(a), common law trademark infringement and unfair competition, unfair competition pursuant to California Business and Professions Code 100 et seq., and false marking under U.S.C.. (Id.) On November, 0, Defendant was served with the summons and Complaint. (Dkt. No..) Defendant s answer to the Complaint was due on or before December, 0. (Id.) Defendant failed to respond to Sundesa s Complaint by this deadline. On December, 0, pursuant to Rule (a) of the Federal Rules of Civil Procedure, Sundesa filed its request for entry of Defendant s default (Dkt. No..) The Clerk of this Court entered Defendant s default on December 1, 0. (Dkt. No..) Sundesa s technological innovations are protected by a portfolio of utility and design patents, including the Asserted Patents. Sundesa in the exclusive licensee of the valid and enforceable Asserted Patents and has been granted all rights thereunder, including the right and standing to enforce the Asserted Patents. Sundesa has marked all products embodying the claims of the Asserted Patents since their introduction to the market. (Dkt. No. 1, 1-1.) Defendant is in the business of selling promotional products. In particular, Defendant sells and offers for sale, inter alia, counterfeit shaker cups that embody the claims of the Asserted Patents. Examples of these products can be found in Exhibit E to Sundesa s Complaint ( Accused Products ). (Dkt. No. 1, 1, Exhibit E.) The Accused Products embody at least claim 1 of the 0 Patent and allow users to perform the methods claimed in at least claim 1 of th 0 Patent. Each of the Accused Products also embody the claimed design of either the Design Patent, the Design Patent, or the Design Patent. (Dkt. No. 1, 1-1.) Defendant markets, describes, encourages, and instructs its customers to use the Accused Products to mix ingredients in such a way as to perform the claimed methods of the 0 Patent. Use of any of Defendant s Accused Products infringes the 0 Patent and the Accused Products have no substantial non-infringing uses. (Dkt. No. 1, 0-.)

1 1 1 1 1 0 1 The design of each Accused Products is substantially the same as the design that is the subject matter of either the Design Patent, the Design Patent, or the Design Patent. Furthermore, the design of each of the Accused Products is so similar to the design that is the subject matter of either the Design Patent, the Design Patent, or the Design Patent that customers are likely to be deceived and persuaded to buy the Accused Products thinking they are actually buying products protected by either the Design Patent, the Design Patent, or the Design Patent. (Dkt. No. 1, -.) Defendant had pre-suit knowledge of the 0 Patent and the Design Patent at least because of Sundesa s marking of its products embodying the claims of the Asserted Patents. Defendant continues to sell the Accused Products without a license, approval, or authorization. As such, Defendant s manufacture, use, sale, offers for sale, and importation of the Accused Products has been intentional, deliberate, and willful. Sundesa does not have the ability to shut down Defendant s infringing activity related to the Accused Products without Court intervention. (Dkt. No. 1,,.) Sundesa has developed recognition and goodwill for the products sold under the Asserted Trademarks among both Sundesa s immediate customers and the consuming public, generally. As a result of, among other things, Sundesa s substantial investment in the Asserted Trademarks, and the products marketed under those trademarks, the consuming public recognizes the Asserted Trademarks, and associates products and features bearing those marks with a single source, namely Sundesa. (Dkt. No. 1, -.) Defendant makes, uses, sells, offers for sale, and imports the Accused Products and uses the Asserted Trademarks to market the Accused Products. Sundesa has not licensed Defendant any rights in or to the Asserted Trademarks and Defendant does not have any right or authority to use, market, display, or sell products that depict these trademarks. Defendant s sale, marketing, and manufacturing of the Accused Products under the Asserted Trademarks has an effect on interstate commerce. Defendant s use of marks

1 1 1 1 1 0 1 that are identical to the Asserted Trademarks in marketing its Accused Products creates confusion as to the source of the Accused Products, leading customers to believe that they are in fact made, or authorized, by Sundesa. (Dkt. No. 1, -.) Sundesa has suffered cognizable injury as a result of Defendant s infringing activities. Sundesa has suffered injury in fact and has lost money or property as a result of Defendant s unfair and unlawful business practices in the form of damage to its good will, lost sales, price erosion, and other actual damages. (Dkt. No. 1, 1-.) Defendant marks upon, or affix to, or uses the word patent in connection with Accused Products that are marketed as containing a patented blender ball wire whisk. Defendant uses the word patent in advertising the Accused Products for the purpose of deceiving the public and inducing them to believe that the Accused Products were made, offered for sale, sold, or imported into the United States by, or with the consent of, the patentee. Sundesa has suffered a competitive injury as a result of Defendant s use of the word patent in connection with the Accused Products. (Dkt. No. 1, -.) CONCLUSIONS OF LAW 1. The Court may decide whether to grant a default judgment as a discretionary matter. Aldabe v. Aldabe, 1 F.d, (th Cir.10). In applying this discretionary standard, default judgments are more often granted than denied. PepsiCo v. Triunfo-Mex, Inc., 1 F.R.D. 1, (C.D. Cal. 1).. The Court may consider several factors, including: (1) the possibility of prejudice to the plaintiff, () the merits of plaintiff s substantive claim, () the sufficiency of the complaint, () the sum of money at stake in the action, () the possibility of a dispute concerning material facts, () whether the default was due to excusable neglect, and () the strong policy favoring decisions on the merits. Eitel v. McCool, F.d 0, 1 (th Cir. 1).. The first Eitel factor weighs in favor of Sundesa. Sundesa would suffer prejudice and hardship if default judgment is not entered on behalf of Sundesa.

1 1 1 1 1 0 1. The second Eitel factor also weighs in favor of Sundesa. To recover under a default judgment, Sundesa is required to state a claim on which it may recover. PepsiCo, Inc. v. Cal. Security Cans, F. Supp. d, (C.D. Cal. 00). By failing to answer the Complaint, Defendant has conceded the factual allegations stated in the Complaint. After a default judgment has been entered by the Clerk of Court, the well-pleaded factual allegations of the complaint are taken as true, except for those allegations relating to damages. Elektra Entertainment Group Inc. v. Crawford, F.R.D., (C.D. Cal. 00). Indeed, given Defendant s failure to respond, a full adjudication on the merits is impractical, and the unrefuted allegations of Sundesa s Complaint must be taken as true for purposes of default judgment. See PepsiCo, F. Supp. d at ( Defendant s failure to answer Plaintiff s complaint makes a decision on the merits impractical, if not impossible ).. Having carefully reviewed Sundesa s Complaint, the Court finds that Sundesa has set forth all facts necessary to establish each of its claims for (1) infringement of the Asserted Patents, () infringement of the Asserted Trademarks, () false designation and unfair competition under 1 U.S.C. 1 (a), () common law trademark infringement and unfair competition, and () unfair competition in violation of California Business and Professions Code Section 100 et seq.. Under the patent laws of the United States, any entity that, without authority, makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. U.S.C. 1(a).. By its manufacture, use, sales, offers to sale, and importation of the Accused Products in the United States, Defendant has infringed the Asserted Patents.. Under the Lanham Act, [a]ny person who shall, without the consent of the registrant, use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause

1 1 1 1 1 0 1 confusion, or to cause mistake, or deceive... shall be liable in a civil action by the registrant.... 1 U.S.C... By its use of the Asserted Trademarks to sell, offer for sale, and advertise the Accused Products, Defendant has created a likelihood of confusion in the minds of the consuming public as to the source of the Accused Products. Thus, Defendant has infringed the Asserted Trademarks.. Unfair competition by infringement of a trademark is covered under Section (a) of the Lanham Act. 1 U.S.C. 1(a), which provides as follow: (a) Civil action (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which (A) is likely to cause confusion, or mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, approval of his or her goods, services, or commercial activities by another person, or... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.. Those with standing to sue under 1(a) include parties that have been injured commercially by the deceptive use of marks and those with a commercial interest in the misused mark. Waits v. Frito-Lay, Inc., F.d, 1 (th Cir. ).. To succeed on a claim for violation of California s unfair competition law ( UCL ), Sundesa needs to show that Defendant committed an unlawful, unfair, or fraudulent business act or practice. Cal. Bus. & Prof. Code 100. The California

1 1 1 1 1 0 1 Legislature has intended the UCL to have broad, sweeping language to include anything that can properly be called a business practice and that at the same time is forbidden by law. Bank of the West v. Superior Court, Cal.th, (). Standing under the UCL is granted to any person who has suffered injury in fact and has lost money or property as a result of the unfair competition. Cal. Bus. & Prof. Code. 10; Kwikset Corp v. Superior Court, 1 Cal. th, (0).. For an unlawful practice, section 100 borrows violations of other laws and treats them as independently actionable unlawful practices. Farmers Ins. Exch. v. Sup. Ct., Cal App. th, (). In fact, a section 100 claim can be based on an identical set of facts as a claim based on the borrowed statute. Tveter v. AB Turn-O- Matic, F.d 1 (th Cir. 10). Violations of trademark statutes can also be actionable under section 100 as an unlawful practice. Denbicare U.S.A., Inc. v. Toys R Us, Inc., F.d 1 (th Cir. 1).. Defendant s liability under Section (a) of the Lanham Act, and also by extension under section 100, is governed by a likelihood of confusion test. 1 U.S.C. 1(a). Whether we call the violation infringement, unfair competition or false designation of origin, the test is identical is there a likelihood of confusion? New West Corp. v. NYM Co. of California, Inc., F.d 1, 01 (th Cir. 1). 1. Defendant s unauthorized use of the Asserted Trademarks is likely to cause confusion, mistake, or deception as to the source, origin, affiliation, connection, or association of the Accused Products with Sundesa, or as to the approval of Accused Products by Sundesa. Consumers are likely to be confused and falsely believe that the Accused Products are made, authorized, or approved by Sundesa. 1. Sundesa has suffered, and will continue to suffer a competitive injury and damage by Defendant s actions. 1. Defendant s actions constitute infringement of the Asserted Trademarks under the Lanham Act.

1 1 1 1 1 0 1 1. Defendant has acted with full knowledge of Sundesa s rights in the Asserted Trademarks and its actions have been intentional, deliberate, and willful. 1. Sundesa is statutorily entitled to an award of costs pursuant to 1 U.S.C. 1(a) of the Lanham Act. In addition to the taxable costs that are normally available to a prevailing party under Rule (d) of the Federal Rules of Civil Procedure and U.S.C. 0, Plaintiffs are also entitled to non-taxable costs by virtue of the expenseshifting provisions of the Lanham Act. See Secalt S.A. v. Wuxi Shenkxi Const. Mach. Co., Ltd., F.d, 0 (th Cir. 0) ( [An award under 1 U.S.C. 1(a) of] the Lanham Act may also include reasonable costs that the party cannot recover as the prevailing party. ); Grove v. Wells Fargo Fin. Cal., Inc., 0 F.d, 0 (th Cir. 0) ( We repeatedly have allowed prevailing plaintiffs to recover non-taxable costs where statutes authorize attorney s fees awards to prevailing parties. ) 0. Sundesa has suffered injury in fact and has lost money or property as a result of Defendant s unfair and unlawful business practices in the form of damage to its good will, lost sales, and other actual damages. 1. Defendant s actions constitute unfair, unlawful, deceptive, or misleading practices in violation of California Business and Professions Code section 100 et seq.. Sundesa has also set forth all facts necessary to establish Defendant s liability for false marking. Under U.S.C., [w]hoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word patent or any word or number importing that the same is patented, for the purpose of deceiving the public is liable for damages adequate to compensate for the injury.. Defendant uses the word patent in its advertising of the Accused Products for the purpose of deceiving the public. Defendant marks its products with the intent to deceive the public for the purpose of falsely establishing itself as an innovator in the shaker cup industry and to gain an unfair competitive advantage. Therefore, Defendant is liable for false marking under U.S.C..

1 1 1 1 1 0 1. The third Eitel factor weighs in favor of entry of default judgment. By failing to answer or otherwise respond to the Complaint, Defendant has conceded the factual allegations stated in the Complaint. After a default judgment has been entered by the Clerk of Court, the well-pleaded factual allegations of the complaint are taken as true, except for those allegations relating to damages. Elektra, F.R.D. at. The Complaint sets forth well-pleaded claims for relief.. The fourth Eitel factor weighs in favor of default judgment as there is a calculable sum of money at stake. Sundesa has been damaged by Defendant s infringement of the Asserted Patents and the Asserted Trademarks. Because of Defendant s failure to plead or otherwise defend itself, Sundesa has been unable to obtain any information regarding the total number of Accused Products used, made, sold, offered for sale, or imported by Defendant into the United States. Thus, the amount of money at stake is not clear. A supplemental hearing will be held before this Court to determine the amount of damages awarded to Sundesa.. The Court finds this case is not exceptional under U.S.C. and 1 U.S.C. 1(a). A case is deemed exceptional if it stands out from others with respect to the substantive strength of a party s litigation position or unreasonable manner in which the case was litigated. Octane Fitness, LLC v. ICON Health & Fitness, Inc., S. Ct. 1, 1 (0). Although Defendant willfully infringed the Accused Products, willfulness is only one factor the Court considers when determining if a case is exceptional. Id. ( District courts may determine whether a case is exceptional in the case-by-case exercise of their discretion, considering the totality of the circumstances. ). Neither willful infringement nor defaults are unusual in patent infringement cases. Telequip Corp. v. The Change Exch., No. 01CV1FJSGJD, 00 WL, at * (N.D. N.Y. Feb., 00). Further, Defendant did not litigate the case in an unreasonable manner because it did not litigate the case at all. Making a conscious choice to default is not enough to make a case exceptional. See RCI TM Corp. v. R & R Venture Grp., LLC, No. :-CV--ORL-, 01 WL 1, at * (M.D. Fla.

1 1 1 1 1 0 1 Feb. 1, 01) (finding there was no exceptional case under Octane when defendants failed to respond to a trademark infringement case). After reviewing the totality of the circumstances, the Court concludes that this case is not exceptional and therefore, Plaintiff is not awarded costs and attorneys fees.. The fifth Eitel factor weighs in favor of default judgment. In this case Sundesa has filed a well-pleaded Complaint and Defendant has failed to answer. Defendant has made no attempt to challenge the accuracy of the allegations of the Complaint and thus no disputes exist that would preclude default judgment. See, e.g., Landstar Ranger v. Parth Enterprises, Inc., F. Supp. d 1 (C.D. Cal. 0).. The sixth Eitel factor weighs in favor of default judgment. Here, the likelihood of excusable neglect is remote. Sundesa served the summons and Complaint on Defendant on November, 0. Defendant has failed to defend itself by filing an answer to Sundesa s Complaint. Furthermore, Defendant has failed to seek any extension of time to respond to the Complaint or to bring any motion to set aside its default.. The seventh Eitel factor weighs in favor of default judgment. A judgment on the merits is impossible if a defendant fails to answer or appear in a case, such as here. See PepsiCo, F. Supp. d at ( Defendant's failure to answer Plaintiffs complaint makes a decision on the merits impractical, if not impossible. ). 0. This Court has power to grant a permanent injunction in this Action pursuant to U.S.C., 1 U.S.C. (a), and California Business & Professions Code section 10. A permanent in junction is a proper remedy for unfair competition under the patent laws of the United States, the Lanham Act, and under the UCL. U.S.C. (stating the district court may grant injunctions in accordance with principles of equity to prevent violation of any right secured by patent, on such terms as the court deems reasonable ); 1 U.S.C. 1(a) (stating that the district court has the power to grant injunctions according to principles of equity and upon such terms as the court may deem reasonable,... to prevent a violation under subsection (a),.. of section 1 of this title ); Cal. Bus & Prof. Code 10 ( Any person who engages, has engaged, or

1 1 1 1 1 0 1 proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. ) 1. A court should grant permanent injunctive relief if the plaintiff demonstrates: (1) an irreparable injury; () inadequate remedies available at law; () a balance of the hardships favors the plaintiff; and () the public interest would not be disserved by a permanent injunction. ebay, Inc. v. MercExchange LLC, U.S., 1 (00).. In this case, injunctive relief is an appropriate remedy for Sundesa as it is necessary to prevent further infringement and harm to Sundesa.. As to the first factor for injunctive relief, Sundesa faces irreparable injury if Defendant is allowed to continue to make, use, sell, offer to sell and import the Accused Products and market them using the Asserted Trademarks. Additionally, as the exclusive licensee of the Asserted Patents, Sundesa is entitled to prevent all others from making, using, selling, offering for sale, or importing any product that embodies the claims of the Asserted Patents. Sundesa maintains its position as the sole company entitled to produce manufacture and sell products under the Asserted Patents. Sundesa faces permanent loss of customers, loss of goodwill, irreparable harm to business relationships, and irreparable harm to its reputation if Defendant is allowed to continue to import and distribute inferior counterfeit shaker cups in the market place.. The second factor, inadequate remedies at law, is also satisfied. [T]he requisite analysis for the second factor of the four-factor test inevitably overlaps with that of the first.... MercExchange, 00 F. Supp. d at. In addition to the irreparable harm that Sundesa faces if Defendant is not enjoined, there are other reasons that favor Sundesa on this factor.. Sundesa must rely on judicial enforcement in order to shut down Defendant s manufacture, use, sales, offers to sale, and importation of the Accused Products. There is risk for future infringement unless Sundesa is granted its request for a permanent injunction. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 1 F.

1 1 1 1 1 0 1 Supp. d, 0 (C.D. Cal. 00) ( A legal remedy is inadequate if it would require a multiplicity of suits. ). Patents secure an exclusive right for the holder of the rights thereunder. Sundesa is an exclusive licensee of the Asserted Patents and it does not grant any sublicenses. If Defendant is allowed to continue its infringement of the Asserted Patents, Sundesa will be deprived of the rights that it is entitled to under these patents. Defendant has ignored Sundesa s demands to cease importation, sales, and other distribution of the Accused Products and has continued its infringing activity willfully, and in bad faith, even in the face of this pending action. As such, the Court finds that this is an exceptional case.. To ensure a successful and meaningful result for Sundesa a permanent injunction is required. Indeed, in unfair competition cases, [i]njunctive relief is the remedy of choice... since there is no adequate remedy at law for the injury caused by a defendant s continuing infringement. Century 1 Real Estate Corp. v. Sandlin, F.d, 0 (th Cir. 1).. As to the third factor, the balance of hardships weighs in favor of Sundesa.. Finally, public interest weighs in favor of granting a permanent injunction. There is a strong public interest in protective patent rights. See Unique Functional Prods. v. Mastercraft Boat Co., 00 U.S. Dist. LEXIS, (C.D. Cal. Nov. 1, 00). Further, it is highly unlikely that grant of a permanent injunction would result in a shortage of shaker cups available to the public. See id. (holding that public interest was not negatively affected by an injunction because it would not create a shortage of the patented product.) Additionally, an injunction is appropriate in Lanham Act cases because [t]he public has an interest in avoiding confusion between two companies products. Internet Specialties West, Inc., v. Milon-DiGiorgio Enters., Inc., F.d, n. (th Cir. 00). Enforcement by permanent injunction cuts at the root of unfair competition by putting an end to the unfair and infringing activities. Sundesa s proposed injunction merely protects its intellectual property.

1 1 1 1 1 0 1 ORDER IN LIGHT OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, JUDGMENT IS HEREBY MADE AND ENTERED in the Action in favor of plaintiff Sundesa, LLC ( Sundesa ) and against defendant Harrison-Daniels, Inc. ( Defendant ) as follows: 1. Sundesa is awarded monetary damages against Defendant in an amount to be determined at a supplemental hearing before this Court pursuant to Rule (b)() of the Federal Rules of Civil Procedure;. Defendant is ordered to make an accounting, within days from the date of this Order, for all the Accused Products it made, used, sold, offered for sale, or imported into the United States;. Defendant and each of its officers, directors, agents, servants, employees, successors, and all those in active concert or participation with them, are permanently enjoined and restrained from directly or indirectly infringing, in any manner, any of the Asserted Patents;. Defendant and each of its officers, directors, agents, servants, employees, successors, and all those in active concert or participation with them, are permanently enjoined and restrained from producing, manufacturing, marketing, advertising, promoting, offering for sale, selling, or distributing products, including the Defendant s products, in connection with the Asserted Trademarks;. Defendant and each of its officers, directors, agents, servants, employees, successors, and all those in active concert or participation with them, are permanently enjoined and restrained from engaging in unfair business practices pursuant to 1 U.S.C. 1(a) and California Business and Professions Code 100, et seq.;. The Court imposes a constructive trust on the sales made by Defendant as a result of its wrongful or infringing acts.

1 1 1 1 1 0 1. Defendant is ordered to destroy its entire stock of Accused Products, together with all labels, signs, prints, packages, wrappers, receptacles, and advertisements, as well as all plates, molds, matrices, or other means of making the same, within days from the date of this Order.. The Court shall retain jurisdiction to enforce the foregoing injunction, and Sundesa may engage in post-judgment discovery both to enforce the money judgment and to monitor Defendant s compliance with the injunction;. Interest shall accrue on the money judgment at the legal rate of interest until such time as the money judgment is satisfied in full; and. Sundesa may apply to the Court for the award of post-judgment attorneys fees incurred in seeking to enforce the money judgment and monitor and enforce the injunction. The Court hereby orders that a supplemental hearing shall be held on March 0, 01 at 1:0 p.m. to make an accounting for the total number of Accused Products made, used, sold, offered for sale, or imported by Defendant and to determine the amount of Sundesa s damages resulting from Defendant s Infringement and unfair competition. IT IS SO ORDERED. Dated: March, 01 Hon. Otis D. Wright II United States District Court Judge