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Click here for the full text of this decision FACTS:Indo European Foods, Inc., a Texas corporation, Shoukry Qaddura and Issam Qaddura (collectively “Indo-Texas”), and Jamal Qaddura entered into a settlement agreement with Indo-European Foods, Inc., a California corporation, over trademark infringement by the former against the latter. Upon Indo-California’s belief that Indo-Texas was violating the terms of that agreement, it filed for a temporary restraining order, temporary and permanent injunctions, damages and attorneys’ fees. The trial court granted the TRO, and eventually rendered final judgment for Indo-California. The permanent injunction generally tracked the settlement agreement. Indo-Texas was not t 1. not sell or distribute any products in a package bearing the words “Indo” or “Indo European” in any form, except for products originating with Plaintiff Indo-European Foods Inc.; 2. eliminate from the names of Indo-Texas’s two stores in Richardson and Arlington, as used on the premises, in advertising, or on trucks, one of the words “Indo” or “European”; 3. place near the entrance to each of the stores, in a manner visible to entering customers, a disclaimer the “the store is not associated in any way with Indo-European Foods of California”; and 4. not use as the name of their stores the name (i) “Indo-European,”"(ii) “Indo Foods,” or (iii) any name using the word “Indo” without a distinguishing suffix, which suffix will not incorporate the word “European” or any derivation, variation or misspelling thereof, including changing the name of the corporate Defendant Indo European Foods, Inc., a Texas corporation, in its company records and on all filings with state and federal authorities and on all accounts with any business or person to comply with this injunction no later than 30 days from the date of the judgment. The trial court also awarded Indo-California $75,000 in damages and $45,000 in attorneys’ fees, plus court costs and post-judgment interest. The judgment excluded Jamal Qaddura because he was never served, and never appeared in court. On appeal, Indo-Texas argued that the evidence is insufficient to support the trial court’s judgment as to damages and as to Issam Qaddura in particular. HOLDING:Affirmed. The court acknowledges that damages in this matter are not easily ascertained, as the settlement agreement required Indo-Texas to perform certain actions, not pay a certain sum. Consequently, Indo-Texas argues damages should be grounded contract law, as the present case is a breach-of-contract case. It must be determined, then, how much profit Indo-California lost as a result of Indo-Texas’ breach. On the other hand, Indo-California maintains that damages are properly measured by Indo-Texas’ profits during the time it breached the settlement agreement. It notes that there are amounts it could have recovered if the first trademark suit had not been settled, and a defendants’ profits are at issue in a trademark suit brought under the Lanham Act. The court reviews the various interests sought to be protected by damages in a contract case and damages in a trademark case. And the court eventually agrees that this is a breach-of-contract case. Nonetheless, the court also says that the breach is directly linked to trademark infringement, and the measure of the value of Indo-California’s bargain is the same as the trademark infringement remedies available for the infringing conduct. The court says it is reluctant to adopt the theory advanced by Indo-Texas that would permit a defendant to avoid trademark remedies including accounting for its profits merely by agreeing to stop infringing only to breach that agreement once the trademark suit is dismissed with prejudice. The court then turns to the specific conduct Indo-Texas related to the trademark infringement, noting the percentage of Indo-Texas’ sales attributable to the sale of products that infringed on Indo-California’s trademark. The court concludes that the trial court could reasonably have found that trademark remedies, including Indo-Texas’ profits, were within the contemplation of the parties at the time they agreed to settle the trademark infringement suit that specifically requested an award of profits and damages resulting from Indo-Texas’ willful infringement. As there is evidence, too, that Indo-California’s customers were confused by Indo-Texas’ use of the name and mark, and that the conclusion could have impacted Indo-Texas’ gross profits, the court finds that the trial court’s award of $75,000 was proper as a product of calculation, not speculation. The court then turns to whether Issam Qaddura breached the settlement agreement. The court finds the issue inadequately briefed , but even if it had been, there is evidence that because he signed the agreement, he obligated himself to see that the agreement was performed. The court also finds that the injunction meets the appropriate standards, and that the evidence supports the injunctive relief granted. The court affirms the award of attorneys’ fees, as well as the reasonableness of the fees. Finally, the court refuses to modify the judgment to include Jamal Qaddura since he was never served. OPINION:Moseley, J.; Moseley, Bridges and Lang-Miers, JJ.

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