IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
March 4, 2013
MILIND L. UPADHYAYA, MINAXI M. UPADHYAYA, MINAXI ENTERPRISES, INC., GIRMA GASISA AND GETACHEW AYANA, DEFENDANTS.
The opinion of the court was delivered by: Jan E. Dubois, J.
AND NOW, this 1st day of March, 2013, upon consideration of
Plaintiff's Motion for a Temporary Restraining Order and Mandatory
Preliminary Injunction (Document No. 9, filed October 9, 2012),
treated by the Court as a Motion for Permanent Injunction,*fn1
Defendants' Response in Opposition to Plaintiff's Application
for Injunctive Relief (Document No. 18, filed November 29, 2012),
Defendants' Proposed Findings of Fact and Conclusions of Law (Document
No. 20, filed November 29, 2012), Plaintiff's Proposed Findings of
Fact and Conclusions of Law (Document No. 21, filed November 29,
2012), 7-Eleven's Supplemental Hearing Brief on the Issue of
Non-Curability of the Terminated Franchisees' Defaults Under the
Franchise Agreement (Document No. 23, filed November 29, 2012), the
Parties' Uncontested Facts (Document No. 24, filed December 6, 2012),
Plaintiff's Proposed Post-Hearing Findings of Fact and Conclusions of
Law (Document No. 32, filed January 15, 2013), Plaintiff's
Post-Hearing Brief (Document No. 33, filed January 15, 2013),
Defendants' Post-Hearing Proposed Findings of Fact and Conclusions of
Law (Document No. 34, filed January 29, 2013) and Defendants'
Brief (Document No. 35, filed January 29, 2013), following a Hearing
on December 11-14, 2012, for the reasons set forth in the Memorandum
dated March 1, 2013, IT IS ORDERED that Plaintiff's Motion for a
Permanent Injunction is GRANTED.*fn2
IT IS FURTHER ORDERED as follows:
1. Franchisee-defendants, *fn3 their agents, servants and employees, and those people acting in concert or participation with such defendants, shall surrender possession to 7-Eleven, Inc. ("7-Eleven") and shall be ejected from the 7-Eleven convenience store premises and facilities located at 106 S. 38th Street, Philadelphia, Pennsylvania (the "Store");
2. The Franchise Agreement dated June 1, 2004*fn4 between plaintiff and franchisee-defendants is terminated. Franchisee-defendants shall comply with any post-termination obligations set forth in the Franchise Agreement.
3. The surrender of possession ("Surrender Date") shall take place on a date and time designated by 7-Eleven on not less than 48-hours' notice to defendants' counsel, provided the Store remains open for business from the date and time of this Order until the Surrender Date. Should franchisee-defendants abandon the Store, 7-Eleven may take immediate possession of the Store without further notice.
4. Defendants are enjoined from:
(i) Removing inventory from the Store or selling inventory other than in the ordinary course of business;
(ii) Failing to cause all sales of inventory to be properly recorded at the time of sale at the retail price reported to 7-Eleven;
(iii) Failing to turn over all receipts to 7-Eleven;
(iv) Removing or destroying any store-related records;
(v) Failing to preserve, protect and maintain all documents in their possession or under their control concerning the subject matter of this action, including, without limitation, all books and other documents including "personal sets" of books, concerning sales, purchases and payments to workers at the Store.
5. In effecting the surrender of the Store, plaintiff and franchisee-defendants shall comply with the Close Out Procedure set forth in paragraph 28 of the Franchise Agreement (Ex. 1, SEI 32), except that neither defendants nor plaintiff shall be required to execute any release of their respective claims against the other(s).
6. Following their surrender of the Store, defendants, their agents, servants and employees, and those people acting in concert with defendants are permanently enjoined and restrained from:
(i) Using the 7-Eleven service mark, related trademarks, or any trademark, service mark, logo or trade name that is confusingly similar to the 7-Eleven marks;
(ii) Otherwise infringing the 7-Eleven mark or using any similar designation, alone or in combination with other components;
(iii) Passing off any of their products or services as those of 7-Eleven or 7-Eleven's authorized franchisees;
(iv) Causing a likelihood of confusion or misunderstanding as to the source or sponsorship of their business, products or services; and
(v) Causing a likelihood of confusion or misunderstanding as to their affiliation, connection or association with 7-Eleven and its franchisees or any of 7-Eleven's products or services.
IT IS FURTHER ORDERED that a conference to schedule proceedings with respect to the parties' remaining claims will be scheduled in due course.
BY THE COURT:
Hon. Jan E. Dubois