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Re/Max, LLC A Delaware Limited Liability Company v. Rhegar Realty

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


February 8, 2011

RE/MAX, LLC A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
RHEGAR REALTY, INC. F/K/A RE/GAR REALTY, INC. AN ILLINOIS CORPORATION,AND PORFIRIO GARCIA, AN INDIVIDUAL, DEFENDANTS.

The opinion of the court was delivered by: Judge John W. Darrah

Magistrate Judge Maria Valdez

ORDER AND CONSENT JUDGMENT

This action was commenced on September 21, 2010, by Plaintiff RE/MAX, LLC ("RE/MAX") against Defendants RHEGAR REALTY, INC. f/k/a RE/GAR REALTY, INC. ("RHEGAR") and Porfirio Garcia (collectively, "Defendants,") arising from continuing acts of trademark infringement and unfair competition as a result of Defendants' use of the names "RE/GAR", "REGAR" and "RHEGAR," as well as for breach of the parties' prior Settlement Agreement. (ECF No. 1). RE/MAX and Defendants, by and through their respective counsel, have agreed to settle this matter and to terminate this action by entry of this Order and Consent Judgment:

THE PARTIES' TERMS OF SETTLEMENT

1. This is an action for injunctive and monetary relief for acts of service mark infringement and unfair competition under the laws of the United States, Title 15, United States Code; and trademark infringement, unfair competition, misappropriation of business value and breach of contract under the common law of the State of Illinois.

2. The Court has subject matter jurisdiction under 15 U.S.C. § 1121, and 28 U.S.C. §§ 1338 and 1367. This Court has personal jurisdiction over the Defendants. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b).

3. RE/MAX is a limited liability company formed under the laws of the state of Delaware with its principal place of business at 5075 South Syracuse Street, Denver, Colorado 80237-2712.

4. RE/MAX is the owner of U.S. Trademark Registration Nos. 1,139,014; 1,339,510; and 2,403,626 for the service mark "RE/MAX" and U.S. Trademark Registration Nos. 2,054,698 and 2,106,387 for the service mark "REMAX" (collectively, the "RE/MAX name trademark"). RE/MAX also is the owner of Illinois Trademark Registration No. 08131985 for RE/MAX. U.S. Trademark Registration Nos. 1,139,014 and 1,339,510 have achieved incontestability under 15 U.S.C. § 1065. The federal registration rights and common law rights of RE/MAX in the RE/MAX name trademark are collectively referred to as the "RE/MAX Trademarks."

5. Defendant RHEGAR, f/k/a RE/GAR, is an Illinois corporation with its principal place of business at 3607 Grand Avenue, Gurnee, Illinois 60031. RHEGAR provides real estate brokerage services in this District.

6. Porfirio Garcia is an Illinois resident residing within this District and is a licensed real estate broker with RHEGAR. Garcia personally controls and directs the activities of RHEGAR, and provides real estate sales services on behalf of, or for the benefit of himself and RHEGAR, in this District.

7. Defendants admit that the RE/MAX Trademarks as set forth above are subsisting, valid, enforceable, and famous.

8. Defendants admit that their use of the RE/GAR and RHEGAR marks, and the RE/GAR signs depicted below that Defendants used in conjunction with providing real estate services and which are identified in the Verified Complaint pending in this action, are confusingly similar to the RE/MAX Trademarks, and are likely to result in a mistaken belief that Defendants are affiliated with, related to, sponsored by, or connected with RE/MAX, and are likely to result in confusion, mistake, or deception as to origin, sponsorship, or approval by RE/MAX of Defendants' real estate services:

A. B. C.

9. The parties have agreed to the entry of this Order and Consent Judgment.

10. Each party has read this Order and Consent Judgment and agrees to be fully bound by its terms.

THEREFORE, IT IS ORDERED AND ADJUDGED:

A. Judgment is granted in favor of RE/MAX and against Defendants on the claims as set forth in Counts I, II, III, IV, V, VI and VII of the Verified Complaint.

B. Defendants, and any of their principals, agents, servants, employees, successors and assigns, and all those in privity, concert or participation with Defendants who receive actual notice of this Order by personal service or otherwise, are hereby immediately and permanently enjoined and restrained from use of the names RE/GAR, RHEGAR, and any other name that includes "RE", "R.E.", or any phonetic equivalent sounding like "RE", and use of the signs depicted herein in paragraph 8 in connection with providing, advertising or promoting real estate services or real estate-related goods and services, and shall cease all such use no later than January 31, 2011, including without limitation:

(i) using, imitating, copying, duplicating, or otherwise making unauthorized use of the RE/MAX Trademarks;

(ii) manufacturing, producing, distributing, circulating, selling, offering for sale, advertising, promoting or displaying any product, advertisement, card or sign, bearing any simulation, reproduction, counterfeit, copy or colorable imitation of the RE/MAX Trademarks;

(iii) using any simulation, reproduction, counterfeit, copy or colorable imitation of the RE/MAX Trademarks in connection with the promotion, advertisement, display, sale, offering for sale, manufacture, production, circulation or distribution of any real estate product or service in such fashion as to relate or connect, or tend to relate or connect, such products or services in any way to RE/MAX or to any products or services sponsored or approved by, or connected with RE/MAX; and

(iv) assisting, aiding or abetting any other person or business entity in engaging in or performing any of the activities referred to in subparagraphs (i) through (iii) above.

B. Defendant Garcia represents that he has obtained the removal of the words RE/GAR REALTY and design shown in the light box sign depicted herein at paragraph 8B. at his own cost.

C. Defendant Garcia represents that he has obtained removal of the signage comprising the words REGAR REALTY and design depicted herein at paragraph 8C. at his own cost.

D. Defendants shall have ceased all use of RE/GAR, RHE/GAR, and RHEGAR in any manner on or before January 31, 2011.

E. Violation by Defendants of the injunctive relief set forth herein would cause irreparable harm and injury and, in such event, RE/MAX shall be entitled to seek enforcement of the specific provisions of this Consent Judgment, including obtaining its attorneys' fees for any such enforcement efforts made necessary by Defendants' violations and obtaining any costs expended by RE/MAX for removal of the signs depicted herein at paragraph 8B. and 8C.

F. The parties have consented to the entry of this Order and Consent Judgment without further notice.

G. The Court shall retain jurisdiction over the parties for the purpose of enforcing the terms of this Consent Judgment.

Dated: __________, 2011

United States District Judge

20110208

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