Case 1:14-cv-01564-WYD-MJW Document 28 Filed 09/25/14 USDC Colorado Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Civil Action No. 14-cv-01564-WYD-MJW
`
`THE HERSHEY COMPANY and
`HERSHEY CHOCOLATE & CONFECTIONERY CORPORATION,
`
`Plaintiffs,
`
`v.
`
`TINCTUREBELLE, LLC,
`TINCTUREBELLE MARIJUANKA LLC and
`CHARMIN MAYES,
`
`Defendants.
`
`FINAL JUDGMENT
`
`Pursuant to and in accordance with Fed. R. Civ. P. 58(a) and the Consent Order,
`
`filed on September 24, 2014, by the Honorable Wiley Y. Daniel, Senior United States
`
`District Judge, and incorporated herein by reference as if fully set forth, it is hereby
`
`ORDERED, ADJUDGED, AND DECREED THAT:
`
`1.
`
`This Court has personal jurisdiction over Hershey and TinctureBelle and has
`
`subject matter jurisdiction of this action.
`
`2.
`
`TinctureBelle represents that:
`
`a.
`
`as of no later than December 30, 2013, TinctureBelle has ended all
`
`distribution, advertising, sale and other use anywhere in the world of:
`
`i.
`
`the Accused TinctureBelle Products, and any packaging
`
`or other variations thereof, and
`
`-1-
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Civil Action No. 14-cv-01564-WYD-MJW
`
`THE HERSHEY COMPANY and
`HERSHEY CHOCOLATE & CONFECTIONERY CORPORATION,
`
`Plaintiffs,
`
`v.
`
`TINCTUREBELLE, LLC,
`TINCTUREBELLE MARIJUANKA LLC and
`CHARMIN MAYES,
`
`Defendants.
`
`FINAL JUDGMENT
`
`Pursuant to and in accordance with Fed. R. Civ. P. 58(a) and the Consent Order,
`
`filed on September 24, 2014, by the Honorable Wiley Y. Daniel, Senior United States
`
`District Judge, and incorporated herein by reference as if fully set forth, it is hereby
`
`ORDERED, ADJUDGED, AND DECREED THAT:
`
`1.
`
`This Court has personal jurisdiction over Hershey and TinctureBelle and has
`
`subject matter jurisdiction of this action.
`
`2.
`
`TinctureBelle represents that:
`
`a.
`
`as of no later than December 30, 2013, TinctureBelle has ended all
`
`distribution, advertising, sale and other use anywhere in the world of:
`
`i.
`
`the Accused TinctureBelle Products, and any packaging
`
`or other variations thereof, and
`
`-1-
`
`
`
`Case 1:14-cv-01564-WYD-MJW Document 28 Filed 09/25/14 USDC Colorado Page 2 of 8
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`ii.
`
`any names, marks, package designs or trade dresses
`
`that are confusingly similar to, imitative of or an attempted satire of, any Hershey
`
`Marks; and
`
`b.
`
`at no time has it used, in any products, whether as ingredients or
`
`components or in any other manner whatsoever, any products
`
`manufactured or distributed by Hershey.
`
`3.
`
`Within three days after entry of this order, to the extent that it has not already
`
`done so pursuant to the parties’ agreement effective as of September 22, 2014 (the
`
`“Settlement Agreement”), TinctureBelle will provide to its distributors, customers, resellers
`
`and retailers of its Accused TinctureBelle Products a copy of a recall notice substantially
`
`in the form depicted in Exhibit D, which shall advise those parties to (I) cease further sale
`
`of the Accused TinctureBelle Products; (ii) destroy any unsold inventory of the Accused
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`TinctureBelle Products; and (iii) remove any advertising or marketing materials, including
`
`webpages, that reference the Accused TinctureBelle products or packaging.
`
`4.
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`TinctureBelle shall refrain in the future from:
`
`a.
`
`using, in any media and any channels of advertising, distribution or
`
`sale anywhere in the world, including without limitation product
`
`labeling, product packaging, print advertising, in-store displays,
`
`domain names, keywords, metatags, online names and handles,
`
`hashtags, social media identities, social media posts, and internet
`
`advertising:
`
`i.
`
`the
`
`terms or marks HASHEES, GANJA JOY,
`
`-2-
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`
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`Case 1:14-cv-01564-WYD-MJW Document 28 Filed 09/25/14 USDC Colorado Page 3 of 8
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`HASHEATH, HASHEATS, THINGAMAJIGGY and REEFER’S, and any substantially
`
`similar or confusingly similar variations thereof;
`
`ii.
`
`the REESE’S Marks, the HEATH Marks, the ALMOND
`
`JOY Marks, the YORK Marks and the Other Hershey Marks, and any substantially
`
`similar or confusingly similar variations thereof;
`
`iii.
`
`the product packaging and trade dresses shown in
`
`Exhibit B, and any substantially similar or confusingly similar variations thereof;
`
`iv.
`
`any product packaging and trade dress that is
`
`substantially similar or confusingly similar to the packaging and trade dress for
`
`Hershey’s REESE’S, HEATH, ALMOND JOY and YORK branded products;
`
`v.
`
`any names, marks, package designs or trade dresses
`
`that are confusingly similar to, imitative of or an attempted satire of, any Hershey
`
`Marks;
`
`vi.
`
`the mark or term REEFER, in connection with any candy,
`
`confectionery or other edible products containing peanut butter or characterized by
`
`a peanut butter flavor; and
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`vii.
`
`any design or trade dress that bears a partially or
`
`predominantly orange background or that uses any combination of orange, yellow
`
`and brown elements, in connection with any candy, confectionery or other edible
`
`products containing peanut butter or characterized by a peanut butter flavor;
`
`b.
`
`using, in any products manufactured, repackaged, advertised,
`
`distributed or sold TinctureBelle, whether as
`
`ingredients or
`
`-3-
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`
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`Case 1:14-cv-01564-WYD-MJW Document 28 Filed 09/25/14 USDC Colorado Page 4 of 8
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`components or in any other manner whatsoever, any products
`
`manufactured or distributed by Hershey;
`
`c.
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`making any statements in any media or channels whatsoever claiming
`
`or suggesting
`
`that any products manufactured, repackaged,
`
`advertised, distributed or sold TinctureBelle are in any way approved
`
`by, sponsored by, authorized by or otherwise affiliated or associated
`
`with Hershey; and
`
`d.
`
`making any false or disparaging statements about Hershey or its
`
`products
`
`(and will
`
`remove and disable
`
`the webpage at
`
`http://www.wherevent.com/ detail/Audrey-Hatfield-Tincturebelle-Legal-
`
`Defense-Fundraiser and any other materials in its custody or control
`
`that disparage Hershey or cast it in a negative light).
`
`5.
`
`TinctureBelle represents that as of the date of this Consent Order, to the best
`
`of its ability, it has removed and deleted from the Internet and all social media and other
`
`electronic channels all advertising, posts, messages and similar communications in the
`
`custody or control of TinctureBelle, the dissemination of which by TinctureBelle would
`
`violate Paragraph 4 hereof.
`
`6.
`
`TinctureBelle shall refrain both now and in the future from registering,
`
`applying to register or maintaining the registration, anywhere in the world, of any design,
`
`trade dress, trademark, domain name, online name or handle, or social media identity, the
`
`use of which by TinctureBelle is prohibited by Paragraph 4 hereof.
`
`7.
`
`Hershey reserves the right to object to future packaging, advertising and
`
`-4-
`
`
`
`Case 1:14-cv-01564-WYD-MJW Document 28 Filed 09/25/14 USDC Colorado Page 5 of 8
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`marketing materials of TinctureBelle that Hershey believes violate its intellectual property
`
`or other rights.
`
`8.
`
`Within one week after execution of this Consent Order, TinctureBelle shall:
`
`a.
`
`provide to Hershey, through counsel in Colorado, two physical
`
`specimens (including contents and packaging) of (I) each product
`
`depicted in Exhibit B; (ii) each product depicted in Exhibit C; and
`
`(iii) each other product, the sale by TinctureBelle of which would
`
`violate Paragraph 4 hereof, to the extent any such specimens remain
`
`in existence; and
`
`b.
`
`destroy all remaining specimens of each product, including without
`
`limitation cartons, containers, packaging, wrappers, labels, displays
`
`and any other materials, in the custody or control of TinctureBelle or
`
`Charmin Mayes, the sale by TinctureBelle of which would violate
`
`Paragraph 4 hereof.
`
`9.
`
`TinctureBelle represents that neither the TinctureBelle Companies nor
`
`Charmin Mayes:
`
`a.
`
`have licensed to third parties or assigned to any other person or entity
`
`any design, trade dress or trademark described in Paragraph 4
`
`hereof; or
`
`b.
`
`owns any applications or registrations anywhere in the world for any
`
`design, trade dress or trademark described in Paragraph 4 hereof.
`
`10.
`
`TinctureBelle hereby acknowledges the validity of Hershey’s rights in the
`
`-5-
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`
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`Case 1:14-cv-01564-WYD-MJW Document 28 Filed 09/25/14 USDC Colorado Page 6 of 8
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`Hershey Marks as described herein and as depicted in the Exhibits hereto, and shall not
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`seek to cancel or otherwise challenge the validity or enforceability of Hershey’s rights
`
`therein or assist any others in doing so.
`
`11.
`
`Prior to the execution of this Consent Order, TinctureBelle has provided to
`
`Hershey, through counsel, a written statement of sales by the TinctureBelle Companies and
`
`by Charmin Mayes of the Accused TinctureBelle Products. TinctureBelle represents and
`
`warrants that the written statement it has provided to Hershey constitutes a complete and
`
`accurate accounting of all sales by the TinctureBelle Companies and by Charmin Mayes
`
`of any Accused TinctureBelle Products and any products using substantially similar
`
`packaging.
`
`12.
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`TinctureBelle expressly recognizes and acknowledges that a violation or
`
`breach by it of any of the representations, covenants, conditions, agreements, or
`
`undertakings in this Agreement will cause Hershey irreparable harm which cannot be
`
`adequately calculated or remedied solely in money damages in an action at law, thereby
`
`entitling Hershey to seek (in addition to any other remedy to which it may be entitled at law)
`
`immediate injunctive relief or other equitable remedies.
`
`13.
`
`14.
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`TinctureBelle shall comply with the terms of the Settlement Agreement.
`
`Pursuant to Section 34(a) of the Lanham Act, 15 U.S.C. § 1116(a), within
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`thirty days after service upon TinctureBelle of this Consent Order, TinctureBelle shall serve
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`upon Hershey, a report in writing under oath setting forth in detail the manner and form in
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`which TinctureBelle has complied with this Consent Order.
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`15.
`
`In the event that a court of competent jurisdiction finds that TinctureBelle has
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`-6-
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`
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`Case 1:14-cv-01564-WYD-MJW Document 28 Filed 09/25/14 USDC Colorado Page 7 of 8
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`engaged in a breach or violation of this Consent order, Hershey shall be entitled (in addition
`
`to any other remedy to which it may be entitled at law) to its reasonable attorneys’ fees
`
`incurred in enforcing its rights under this Consent Order. In addition, in the event that a
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`court of competent jurisdiction finds that TinctureBelle has engaged in a breach or violation
`
`of Paragraph 1, 2, 3, 4, 5 or 13 of this Consent Order, because the actual damages
`
`sustained by Hershey as a result of such breach would be impracticable or extremely
`
`difficult to calculate, Hershey shall be entitled (in addition to any other remedy to which it
`
`may be entitled at law) to liquidated damages in the amount of $25,000 per breach (which
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`amount is expressly agreed to represent a fair estimate of the damage that will accrue as
`
`a result of each such breach, to the extent such breach is compensable in money, and not
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`a penalty) or such actual damages or profits that Hershey establishes, whichever is greater.
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`16.
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`This Court shall retain continuing jurisdiction over the persons and entities
`
`identified in this Consent Order and over the subject matter of plaintiffs’ Complaint to
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`ensure compliance and performance with the terms of this Consent Order and to modify
`
`the Consent Order as justice so requires.
`
`17.
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`The provisions of this Consent Order shall apply worldwide.
`
`-7-
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`
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`Case 1:14-cv-01564-WYD-MJW Document 28 Filed 09/25/14 USDC Colorado Page 8 of 8
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`DATED at Denver, Colorado this 25th day of September, 2014.
`
`FOR THE COURT:
`
`JEFFREY P. COLWELL, CLERK
`
`/s/ Robert R. Keech
`Robert R. Keech,
`Deputy Clerk
`
`APPROVED AS TO FORM:
`
`/s/ Wiley Y. Daniel
`WILEY Y. DANIEL,
`SENIOR UNITED STATES DISTRICT JUDGE
`
`-8-
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