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Big O Tires, LLC v. Big Auto Service Center, Inc.

United States District Court, D. Colorado

December 9, 2015

BIG O TIRES, LLC, a Nevada limited liability company Plaintiff,
v.
BIG AUTO SERVICE CENTER, INC., a California corporation and EMAD S. SAIDAWI, an individual Defendants.

PLAINTIFF BIG O TIRES, LLC Kevin Kormondy Executive Vice President Chief Operating Officer

COUNSEL FOR PLAINTIFF Harold R. Bruno, III Robinson, Waters & O’Dorisio, PC

DEFENDANT BIG AUTO SERVICE CENTER, INC. Emad S. Saidawi President

DEFENDANT EMAD S. SAIDAWI, an individual Emad S. Saidawi

COUNSEL FOR DEFENDANTS Wayne N. White Jr. Watson & Associates, LLC

STIPULATION ORDER AND PERMANENT INJUNCTION

R. Brooke Jackson United States District Court Judge

THE COURT, being duly advised in the premises and upon the Stipulated Motion of Big O Tires, LLC (the "Plaintiff") and Big Auto Service Center, Inc. and Emad S. Saidawi (collectively the "Defendants”), hereby orders, adjudges and decrees the following:

1. The Big O Tires Franchise Agreement #20755 with an effective date of September 29, 2008 by and between the Plaintiff as Franchisor and Defendant Big Auto Service Center, Inc. as Franchisee, and Emad S. Saidawi as Guarantor (hereinafter the “Agreement”) is terminated effective July 17, 2015 except for any duty by either party to indemnify the other in the Agreement against claims by third parties.

2. The caption in this case is hereby amended to change the name of Defendant BIG AUTO SERVICE, INC. to its proper name as incorporated in the State of California, and as set forth in the Agreement: “BIG AUTO SERVICE CENTER, INC.”

3. The Plaintiff shall not seek enforcement of Agreement Paragraph 17.04, Post Termination Covenant Not to Compete. This clause shall have no further cause or effect, and Defendants may continue to operate a store at their current location of 1509 Parkmoor Avenue, San Jose, California 95128 without restriction on the products or services that the store sells, provided Defendants comply with the terms of this Order and Permanent Injunction.

4. Permanent Injunction: Pursuant to 15 U.S.C. § 1116, the Court Orders that the Defendants and their officers, agents, servants, employees and attorneys, and those persons or entities in active concert or participating with them who receive actual notice of this order by personal service or otherwise be enjoined from engaging in the following acts:

a. Using the trademarks of the Plaintiff including BIG-O, Registration Number 993, 415, registered September 24, 1974, BIG O, Registration Number 994, 466, registered October 1, 1974, BIG O TIRES and design, Registration Number 1, 611, 160, registered August 28, 1990, BIG O TIRES and design, Registration Number 2, 834, 058, registered April 20, 2004, BIG O TIRES and design, Registration Number 2, 821, 053, registered March 9, 2004, WWW.BIGOTIRES.COM, Registration Number 2, 514, 975, registered December 4, 2001; and A REPUTATION YOU CAN RIDE ON, Registration Number 1, 845, 544, registered February 22, 1993. (collectively the "Marks") in the advertising or sale of tires and other automotive services;
b. Using the trade dress of the Plaintiff consisting of the overall layout of the franchised locations including decorative maroon, black and white stripes, a red and white interior, red and black employee uniforms with or without Big O logos and various point of purchase materials and displays (collectively the "Trade Dress");
c. Using in any manner any service mark, trademark, trade name, trade dress, words, numbers, abbreviations, designs, colors, arrangements, collocations or any combination thereof which would imitate, resemble or suggest the Marks or the Trade Dress including the ...

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