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FIVE AND ONE, INC. v. PINE TAVERN

United States District Court, Southern District of New York


June 12, 2003

FIVE AND ONE, INC., D/B/A FRANKIE AND JOHNNIE'S RESTAURANT, PLAINTIFF, AGAINST PINE TAVERN, INC., D/B/A FRANKIE & JOHNNIE'S, FRANK AND JOHN'S RISTORANTE, INC., AND A & A RESTAURANT, INC., DEFENDANTS.

The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

FINAL JUDGMENT AND PERMANENT INJUNCTION

The parties having entered into a settlement agreement and defendants having consented to the entry of a permanent injunction in substantially this form, it is hereby

ORDERED, ADJUDGED AND DECREED as follows:

1. Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice hereof by personal service or otherwise be and they hereby are permanently enjoined from:

(a) using the mark or name FRANKIE & JOHNNIE'S, directly or indirectly, or any similar variation of that name or part thereof, for example and without limitation, "FRANKY AND JOHNNY," standing alone, on signage, menus, ordering forms, napkins, matchbooks, glasses, answering the telephone at their respective places of business, or in printed radio, television, and/or Internet advertising of any sort for their restaurant services or related products, including without limitation print media (including telephone directories), or in any manner over the Internet; and

(b) providing or selling or causing to be provided or sold any service or product bearing the FRANKIE & JOHNNIE'S mark, name or logo or any other mark, name or logo that includes the name "FRANKIE," "JOHNNIE," or "FRANKIE & JOHNNIE'S" or any similar variation of those names;

2. Defendants promptly shall cure any existing breaches of the Settlement Agreement among the parties including, without limitation, improper attribution of the mark or name FRANKIE & JOHNNIE'S to the defendants, or any one of them, by any service provider or third party.

3. In the event defendants are alleged to have violated any of the provisions hereof, plaintiff shall provide notice of such alleged violation to the attorney for the defendants, Wm. Lee Kinnally, Jr., whose facsimile number and e-mail address are (212) 688-8315 and wlkinnally@cibney.com. Should any such alleged violation remain uncured more than three days after the giving of such notice, plaintiff may seek any remedies available to it including contempt.

4. The first amended complaint and defendants' counterclaim are dismissed with prejudice and without costs.

5. The Clerk shall close the case.

SO ORDERED.

20030612

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