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Case 2:08-cv-02632-JAM-GGH Document 231 Filed 09/28/12 Page 1 of 4



KING PARRET & DROSTE LLP

450 Newport Center Drive, Suite 500

GIBSON, DUNN & CRUTCHER LLP
G. CHARLES NIERLICH, SBN 196611 ALAN J. DROSTE, SBN 105616
HOWARD S. HOGAN, pro hac vice
JOSHUA A. JESSEN, SBN 222831
555 Mission Street, Suite 3000
San Francisco, CA 94105-2933
Telephone: 415.393.8200
Facsimile: 415.393.8306
[email protected]
[email protected]
[email protected]

Telephone: 949.644.3484
Facsimile: 949.644.3993


Newport Beach, CA 92660

[email protected]





[Additional counsel on signature pages]

Attorneys for Plaintiff
CYTOSPORT, INC.










Attorneys for Defendant
VITAL PHARMACEUTICALS, INC.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CYTOSPORT, INC., a California corporation,

Plaintiff,

v.

VITAL PHARMACEUTICALS, INC., a
Florida Corporation,



Defendant.

SACRAMENTO DIVISION



CASE NO. 2:08-CV-02632-JAM-GGH

AGREED STIPULATION AND ORDER OF
DISMISSAL





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AGREED STIPULATION AND [PROPOSED] ORDER OF DISMISSAL, CASE NO. 2:08-CV-02632-JAM-GGH

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Case 2:08-cv-02632-JAM-GGH Document 231 Filed 09/28/12 Page 2 of 4



This matter is before the Court on the joint application of plaintiff CytoSport, Inc.

(“CytoSport”) and Defendant Vital Pharmaceuticals, Inc. (“VPX”) (collectively, “the Parties”).

WHEREAS, Plaintiff commenced the above-captioned civil action on or about November 4,

2008 and filed a Third Amended Complaint on or about December 7, 2009;

WHEREAS, Defendant filed an answer and counterclaims against CytoSport that were

deemed filed as of December 22, 2009;

WHEREAS, the Parties have entered into a confidential settlement agreement in which they

have agreed to resolve the dispute giving rise to this action; and

WHEREAS, without admitting any factual or legal allegation, claim alleged, or defense

asserted, the Parties have consented to the entry of this dismissal order pursuant to Rule 41(a)(2) of

the Federal Rules of Civil Procedure with prejudice.

Therefore, it is hereby ORDERED that:

(a) All claims asserted by Plaintiff against Defendant and all counterclaims asserted by

Defendant against Plaintiff are hereby dismissed with prejudice;

(b) The preliminary injunction entered by this Court on May 6, 2009 and affirmed by

order of the United States Court of Appeals for the Ninth Circuit dated September 14, 2009 and filed

October 13, 2009 is hereby converted into a permanent injunction and the terms of the injunction set

forth therein shall remain permanently in effect pursuant to 15 U.S.C. § 1116 except that CytoSport is

hereby relieved of its obligation to post a security under Rule 65(c) of the Federal Rules of Civil

Procedure. The Surety Bond in the amount of $500,000.00 received by attorney-in-fact Sheryl

Smith/American Contractors Indemnity Company and recorded as Docket No. 78 is accordingly

hereby discharged and exonerated.

(c) As set forth in the confidential settlement agreement between the Parties, VPX

surrenders and abandons all statutory and common law rights in the marks “Muscle Power” (Reg.

Nos. 3,551,076 and 3,547,541) and “I Am Muscle Power” (Serial No. 77/679,693), along with any

and all of the goodwill associated with and represented and symbolized by such marks. The Court

hereby orders the cancellation of Reg. Nos. 3,551,076 and 3,547,541 and certifies such order to the

Director of the United States Patent and Trademark Office “who shall make appropriate entry upon

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the records of the Patent and Trademark Office and shall be controlled thereby,” pursuant to 15

U.S.C. § 1119;

(d) As set forth in the confidential settlement agreement between the Parties, VPX

withdraws its petitions to cancel CytoSport’s registrations for the “Muscle Milk” and “Muscle Milk

Light” marks, Petition for Cancellation Nos. 92051604, 92051605, 92051607 and 92051697 before

the Trademark Trial and Appeal Board of the United States Patent and Trademark Office;

(e) Each of the Parties shall bear its own costs, expenses and attorneys’ fees associated

with the prosecution and defense of this action;

(f) Any and all motions that remain pending on the docket for this action are hereby

denied as moot;

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(g) This Court shall retain subject matter jurisdiction over this matter for purposes of

enforcement of this order and the Parties’ settlement of this action, and the Parties hereby expressly

consent to the exclusive personal jurisdiction of this Court with respect to any action arising from or

related to this Settlement Agreement; and

(h) The Clerk of the Court is directed to close the above-captioned action.


DATED: September 27, 2012



GIBSON, DUNN & CRUTCHER LLP KING, PARRET & DROSTE LLP
G. CHARLES NIERLICH
HOWARD S. HOGAN
JOSHUA A. JESSEN


VITAL PHARMACEUTICALS, INC.
KALINA PAGANO
VICTORIA GODWIN

ALAN J. DROSTE









By: /s/ G. Charles Nierlich By: /s/ Alan J. Droste
G. Charles Nierlich Alan J. Droste

Attorneys for Plaintiff Attorneys for Defendant
CYTOSPORT, INC. VITAL PHARMACEUTICALS, INC.






IT IS SO ORDERED.



Dated: 9/28/2012







/s/ John A. Mendez____________________
U. S. DISTRICT COURT JUDGE


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