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Edible Arrangements, LLC v. Smith

United States District Court, E.D. North Carolina, Western Division

April 15, 2019

EDIBLE ARRANGEMENTS, LLC; and EDIBLE IP, LLC, Plaintiffs,
v.
KENRICK SMITH d/b/a EDIBLE FRUIT ARRANGEMENTS, Defendant.

          FINAL JUDGMENT ON CONSENT.AND PERMANENT INJUNCTION

          JAMES C. DEVER III, UNITED STATES DISTRICT JUDGE

         WHEREAS, Plaintiffs Edible Arrangements, LLC and Edible IP, LLC (collectively "Plaintiffs") and Defendant Kenrick Smith d/b/a Edible Fruit Arrangements ("Defendant") have reached the following agreement in settlement of this action, and consent to the entry of this Final Judgment on Consent and Permanent Injunction, based upon the following stipulated findings of fact and conclusions of law, which this Court hereby adopts for the purposes of the entry of this Final Judgment on Consent and Permanent Injunction.

         1. Plaintiffs own and use various marks comprising or containing the terms EDIBLE or EDIBLE ARRANGEMENTS, either alone and/or with other words or designs, in connection with a variety of goods and services, including without limitation various fresh and processed fruit products and related retail services (collectively, the "EDIBLE Marks").

         2. Plaintiffs own and use marks comprising a daisy design, featuring six petals and a spherical center, in connection with a variety of goods and services, including without limitation various fresh and processed fruit products and related retail services (the "Daisy Design Marks").

         3. Plaintiff Edible IP, LLC owns numerous U.S. trademark registrations and applications for the EDIBLE Marks and for the Daisy Design Marks, including without limitation those shown on Exhibit A attached hereto.

         4. Defendant has operated an online floral and gift business under the name "Edible Fruit Arrangements," or variations thereof including "Eatable Fruit Arrangements," and has advertised that business at a website ("Smith's Website") located at www.edible-fruit-arrangements.com and www.ediblearrangementsandfruitbouquets.com ("Smith's Domain Names").

         5. On November 12, 2018, Plaintiffs filed the initial complaint in this action asserting claims against Defendant for trademark infringement, trade dress infringement, false designations of origin, unfair competition, and cyberpiracy under the Lanham Act, 15 U.S.C. §1051 et seq.; unfair competition under the common law of the State of North Carolina; and unfair or deceptive trade practices under N.C. Gen. Stat. § 75-1.1 et seq..

         6. In response to the filing of this action, Smith does not contest liability for Plaintiffs' claims and has disabled Smith's Website.

         7. The parties have agreed to resolve this litigation upon the terms set forth in this Final Judgment on Consent and Permanent Injunction.

         IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

         1. This Court has jurisdiction over the parties and over the subject matter in issue, and venue is proper in this District.

         2. Defendant acknowledges and agrees not to challenge the validity of the EDIBLE Marks and the Daisy Design Marks.

         3. Defendant, any persons or entities he controls, and any other persons or entities in active concert or participation with any of them, are hereby permanently enjoined and restrained from:

A. Using, displaying, advertising, promoting, registering or seeking to register, or incorporating into any domain name, social media user name or title or post, hashtag, HTML code, search engine result listings, search engine optimization, website title, website metadata, website meta names, website metatags, or website meta descriptions, any term or terms comprising or containing the ...

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