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Peter Roy Withers was sued by Naturally New Zealand. This is a good read to look deep into the education system and who major University hire. The case was filed in 1998 and after this Mr. Withers has worked at Claremont's Peter F. Drucker School of Management, UCLA's Anderson Graduate School of Management, Pepperdine University Graziadio School of Business and Management and is currently working at University of Auckland.
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--lOS ANGELES SUPERIOR eOURl
~ DONALD E BOSS State Bar 145551 LAW OFFICES OF DONALD E BOSS I 908 South Village Oaks Drive covina California 91723 (626) 966-9231 DEC 02 1998
J RANDALL FAITH State Bar 50474 LAW OFFICES OF J RANDALL FAITH 908 South Village Oaks Dr Covina California 91723 (626) 331-1777
Attorneys for Plaintiff NATURALLY NEW ZEALAND PRODUCTS INC
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES NORTH CENTRAL DISTRICT
EC025846 NATURALLY NEW ZEALAND ) Case No PRODUCTS INC a ) California corporation ) NOTICE OF MOTION AND MOTION FOR
) PRELIMINARY INJUNCTION MEMORANDUM Plaintiff ) OF POINTS AND AUTHORITIES
) DECLARATIONS OF MELANIE MERRY vs ) ROCHELLE ENDLYi NOEL TURNER
) AND DONALD E BOSS IN SUPPORT THE KINESIS SYNDICATE an ) THEREOF (CODE OF CIVIL PROCEDURE unknown business entity ) SECTION 526(a) (1) (a) (3) and MARKET-INTERFACE a ) BUSINESS AND PROFESSIONS CODE California Limited Liability ) SECTION 14402 17200) Corporation and DOES 1-10 )
) c9 51 lttot Defendants )
) pep--A 9~OO
PLEASE TAKE NOTICE THAT Plaintiff I s motion for a preliminary
injunction in this matter will be heard in Department tt of the Los
Angeles county Superior Court located at 600 E Broadway Glendale
California 91206-4395 at the above-stated date and time
LAW OFFICES OF DONALD E BOSS
DATED November 2 1998 BY~~ Donald E Boss Attorney for Plaintiff
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
1 STATEMENT OF FACTS
Plaintiff is a California corporation engaged in the importation
and resale of various seafood products Plaintiffs principal place of
business in Walnut California Plaintiff has been incorporated under
the name Naturally New Zealand Products Inc since December 20 1991
and has continuously done business under that name since that date
Attached hereto as Exhibit A and incorporated herein by this reference
are the certificate of Amendment to Plaintiffs Articles of Incorporashy
tion showing a corporate name change
Plaintiffs business activities include importing seafood products
from suppliers in New Zealand Fiji Tonga and Australia and then
re-selling those products to various wholesalers located in California
Plaintiffs customers are wholesalers that deal directly with grocery
stores and restuarants in Southern California in direct competition with
the Defendants Declaration of Melanie Merry at page 1 lines 14 to 18
Plaintiff has longstanding relationships with its suppliers and
customers and has built up a credit history under that name as well as
sUbstantial goodwill in the industry
Since doing business under the Naturally New Zealand Products Inc
name Plaintiff had occasion to deal with Peter Withers a member of a
trade organization funded by the New Zealand government Accordingly
Peter withers was well aware of the fact that the Naturally New Zealand
Products Inc name was already being used within in the seafood
industry specifically with respect toproducts being 6btainedfrom New
Zealand Declaration of Melanie Merry at page 1 lines 19-24 and
Declaration of Rochelle Endly at page 1 lines 24-28
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In the early part of 1997 Plaintiffs President Melanie Merry
received a telephone call from Peter Withers During the course of
that conversation Peter withers stated to that he had formed an
organization called The Kinesis Syndicate and that said organization
desired to hold an in-store promotion inside the Whole Foods Markets
Inc chain of specialty grocery stores under the name Naturally New
Zealand Declaration of Melanie Merry at page 1 lines 25-28
From the conversation Melanie Merry was lead to believe that the
promotion would constitute some display banners and in-store promotional
advertisements and little to nothing else Declaration of Melanie Merry
at page 2 lines 1 to 3
Based upon Peter withers representations that The Kinesis Syndicate
would be doing nothing more than a simple in-store promotion Melanie
Merry agreed that the Kinesis syndicate could use the name Naturally New
Zealand for such a limited purpose Declaration of Melanie Merry at
page 2 lines 7 to 10
Some months later in the middle of 1997 Melanie Merry received a
facsimile communication from Bruce Young the Chief Executive of Mona
Pacific Fisheries Ltd informing her that The Kinesis syndicate was not
merely using the name for a simple in-store promotion but was in fact
shipping and sourcing product under the name Naturally New Zealand as
well as conducting business operations under that name with various
third parties Declaration of Melanie Merry at page 2 lines 11 to 16
Attached hereto as Exhibit Btl is a true and correct copy of the letter
from Bruce Young to Melanie Merry
Sometime thereafterMelanie Merry received a telephone call from
Seafax a credit organization that deals with suppliers and vendors in
the seafood trade During the course of that conversation the caller
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inquired as to whether Ms Merry had recently filled out an application
for a line of credit under the Naturally New Zealand name Declaration
of Melanie Merry at page 2 lines 17 to 24
In response to the information that Peter Withers and The Kinesis
syndicate were conducting activities far in excess of what had been
originally represented Ms Merry retained the Law Office of Donald E
Boss to write a cease and desist letter to Peter Withers and The Kinesis
syndicate Declaration of Melanie Merry at page 2 lines 25 to 28 and
Declaration of Donald E Boss at page 1 lines 9 to 13 Attached hereto
and incorporated herein by this reference as Exhibit e is a copy of
that letter
During the next six months or so counsel for Plaintiff and counsel
for Defendants attempted to negotiate a licensing agreement between the
parties Declaration of Melanie Merry at page 3 lines 1 to 7 and
Declaration of Donald E Boss at page 1 lines 14 to 21 During the
course of those negotaions counsel for Defendant initially indicated a
willingness to enter into such an agreement Declaration of Donald E
Boss at page 1 lines 14 to 21
Ultimately however counsel for the Kinesis Syndicate stated that
Peter Withers was unwilling to sign the agreement unless his
organization could continue to source and invoice customers and deal
with the public at-large under the Naturally New Zealand name
Declaration of Donald E Boss at page 1 lines 20 to 22 Due to
Defendants desire to continue its business operations under the name
Naturally New Zealand this action has resulted
During the cour-se ufa subsequent investi-gatioIl into the matter
Plaintiff has learned the following additional facts
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1 A That Market Interface LLC filed its Articles of Organization
2 on April 1 1997 - five and one-half years after Plaintiff began doing
3 business under that name Attached hereto as Exhibit 0 is a true and
4 correct copy of the Ficititious Business Filing for Los Angeles county
as filed by Peter Withers
6 B That Defendants through their authorized agent Peter
7 Withers had stated to a third party that Defendants were aware of the
8 prior use of that name but that Defendants would eventually own the
9 rights to use the Naturally New Zealand name Declaration of Rochelle
Endly at page 1 line 27 to page 2 line 4 and Declaration of Noel
11 Turner at page 1 lines 18 to 20
12 C That Peter Withers formed Defendant Market Interface LLC for
13 the sole purpose of doing business under the Naturally New Zealand
14 name Declaration of Melanie Merry at page 3 lines 8 to 14 i and
Exhibit E a true and correct copy ofa download of Defendant
16 Market Interface LLCs web site wherein Defendants state that Market
17 Interface LLC was formed expressly for the Naturally New Zealand
18 marketing campaign See page 3 under the heading Management Team
19 D That Market Interface LLC claims the ownership rights to a
state trademark in the Naturally New Zealand name despite Peter Withers
21 prior knowledge of Plaintiffs use of that name See Exhibit E
22 E That Defendant Market Interface LLC holds itself out as the
23 owner of a federal trade name registration for the name Naturally New
24 Zealand on its cartons of ice cream when in fact its does not hold
such a registration Attached hereto as Exhibit F are two copies of
~--2~ a container for uAnnie sTce Cream one of tne pr-oducts as advertized on
27 the web site (Exhibit 0)
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Also attached hereto as Exhibit Gil is a true and correct copy of
the results of a trademark search performed for the name Naturally New
Zealand Declaration of Donald EBoss at page 2 lines 1 to 8
The court will note that the 1-800-933-7367 telephone number listed
on Exhibit F is the same telephone number as provided on Defendants
website Exhibit D
~ A FIRST IN TIME USER HOLDS A REBUTTABLE PRESUMPTION OF
THE RIGHT TO USE THE NAME
It is a well-established principle of the law that the first in
time registrant of a name under a filing with either the Secretary of
State or by Fictitious Business Name filing holds the exclusive right to
use that name Business and Professions Code section 14416
In the case at bar Plaintiff filed its corporate name change with
the Secretary of States Office on December 20 1991 and proceeded to
conduct business under that name continuously thereafter Defendant
Market Interface LLC did not file its Fictitious Business Name filing
until June 24 1997
3 A PRELIMINARY INJUNCTION SHOULD BE ISSUED IF PLAINTIFFS
RIGHT TO RELIEF IS APPARENT FROM THE FROM THE COMPLAINT OR VERIFIED
DECLARATIONS AND THE RELIEF RESTRAINS THE CONTINUANCE OF THE ACT
COMPLAINED OF
An injunction may be granted when it appears from the complaint or
evidence submitted that Plaintiff is entitled to the relief demanded
which consists of restraining the further commission of an act
complained of Code of Civil Procedure Section 526(a) (1) and see
Dingley v Buckner 11 Cal App 181 183184 104 P478 (1909) and
Southern Leadership Conference v Al Malaikah Auditorium Co 230
CalApp 3d 207 223 281 Cal Rptr 216 (1991)
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Business and Professions Code Section 14402 states Any court of
competent jurisdiction may restrain by injunction any use of trade
names in violation of the rights defined in this chapter
1 DEFENDANTS CONTINUED USE OF THE NAME WILL LIKELY CAUSE
CONFUSION UNLESS RESTRAINED BY COURT ORDER
Plaintiff and Defendants do business in a relatively small
industry Plaintiff f s customers are wholesalers that are in direct
competition with the Defendants As such Plaintiff has already
experienced several occasions in which third parties were confused as to
the relationship between the parties to this action It seems certain
that such confusion will continue to occur in the future unless
restrained by court order
b A PRELIMINARY INJUNCTION SHOULD BE ISSUED SINCE MONETARY
DAMAGES ARE AN INADEQUATE REMEDY
An injunction may be granted when pecuniary compensation will not
afford adequate relief or when it would be extremely difficult to
ascertain the amount of compensation that would afford complete relief
Code of Civil Procedure Sections 526(a) (4) amp 526(a) (5)
Here I the value of Plaintiffs damages due to potential lost sales
confusion within the industry potential credit problems or other
damages would be extremely difficult to calculate at the time of trial
Accordingly issuance of a preliminary injunction is the most
appropriate remedy in this matter
h CONCLUSION
Based upon Plaintiffs prior use Naturally New Zealand name the
confusion that has already occurred as to the identity of the parties
involved in this action based upon the sUbstantial similarity of their
names the power of the court to impose a preliminary injunction
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pursuant to Business and Professions Code section 14402 and the
inadequacy of monetary damages Plaintiff respectfully requests the
imposition of the preliminary junction as prayed for in the accompanying
Order of the Superior Court
LAW OFFICES OF DONALD E BOSS
DATED November 2 1998 BY~7~ ~N~SS Attorney for Plaintiff Naturally New Zealand Products Inc
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DECLARATION OF MELANIE MERRY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Melanie Merry declare as follows
1 I am the President of Naturally New Zealand Products Inc an
importer of seafood products that has been doing business under that
name since December of 1991 I have personal first-hand knowledge of
the following facts and if called upon to testify as set forth below
could and would competently do so
2 Attached hereto as Exhibit A and incorporated herein by this
reference is a true and correct copy of the certificate of Amendment of
the Articles of Incorporation changing the name of the corporation from
New Zealand Pacific Products Inc to Naturally New Zealand Products
Inc on December 20 1991
3 Plaintiffs business activities include purchasing seafood
products from suppliers located in New Zealand Tonga Fiji and
Australia and re-selling those products to various wholesalers located
in California who then sell those items directly to restaurants and
grocery stores often in competition with the Defendants products
4 Since doing business under the Naturally New Zealand Products
Inc name I had occasion to deal with Peter withers in his capacity as
a member of a trade organization funded by the New Zealand government
During the course of those dealings Peter withers was aware of my use
of the Naturally New Zealand Products Inc name as he was dealing with
me in my capacity as president of my corporation
5 In late January or early February of 1997 I received a
friendly telephone call from Peter withers inquiring as to whether I had
any objections to his doing a small in-store promotion in conjunction
with Whole Foods Markets Inc under the name Naturally New Zealand
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
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DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
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I Noel Turner declare as follows
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1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
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7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
1 STATEMENT OF FACTS
Plaintiff is a California corporation engaged in the importation
and resale of various seafood products Plaintiffs principal place of
business in Walnut California Plaintiff has been incorporated under
the name Naturally New Zealand Products Inc since December 20 1991
and has continuously done business under that name since that date
Attached hereto as Exhibit A and incorporated herein by this reference
are the certificate of Amendment to Plaintiffs Articles of Incorporashy
tion showing a corporate name change
Plaintiffs business activities include importing seafood products
from suppliers in New Zealand Fiji Tonga and Australia and then
re-selling those products to various wholesalers located in California
Plaintiffs customers are wholesalers that deal directly with grocery
stores and restuarants in Southern California in direct competition with
the Defendants Declaration of Melanie Merry at page 1 lines 14 to 18
Plaintiff has longstanding relationships with its suppliers and
customers and has built up a credit history under that name as well as
sUbstantial goodwill in the industry
Since doing business under the Naturally New Zealand Products Inc
name Plaintiff had occasion to deal with Peter Withers a member of a
trade organization funded by the New Zealand government Accordingly
Peter withers was well aware of the fact that the Naturally New Zealand
Products Inc name was already being used within in the seafood
industry specifically with respect toproducts being 6btainedfrom New
Zealand Declaration of Melanie Merry at page 1 lines 19-24 and
Declaration of Rochelle Endly at page 1 lines 24-28
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In the early part of 1997 Plaintiffs President Melanie Merry
received a telephone call from Peter Withers During the course of
that conversation Peter withers stated to that he had formed an
organization called The Kinesis Syndicate and that said organization
desired to hold an in-store promotion inside the Whole Foods Markets
Inc chain of specialty grocery stores under the name Naturally New
Zealand Declaration of Melanie Merry at page 1 lines 25-28
From the conversation Melanie Merry was lead to believe that the
promotion would constitute some display banners and in-store promotional
advertisements and little to nothing else Declaration of Melanie Merry
at page 2 lines 1 to 3
Based upon Peter withers representations that The Kinesis Syndicate
would be doing nothing more than a simple in-store promotion Melanie
Merry agreed that the Kinesis syndicate could use the name Naturally New
Zealand for such a limited purpose Declaration of Melanie Merry at
page 2 lines 7 to 10
Some months later in the middle of 1997 Melanie Merry received a
facsimile communication from Bruce Young the Chief Executive of Mona
Pacific Fisheries Ltd informing her that The Kinesis syndicate was not
merely using the name for a simple in-store promotion but was in fact
shipping and sourcing product under the name Naturally New Zealand as
well as conducting business operations under that name with various
third parties Declaration of Melanie Merry at page 2 lines 11 to 16
Attached hereto as Exhibit Btl is a true and correct copy of the letter
from Bruce Young to Melanie Merry
Sometime thereafterMelanie Merry received a telephone call from
Seafax a credit organization that deals with suppliers and vendors in
the seafood trade During the course of that conversation the caller
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inquired as to whether Ms Merry had recently filled out an application
for a line of credit under the Naturally New Zealand name Declaration
of Melanie Merry at page 2 lines 17 to 24
In response to the information that Peter Withers and The Kinesis
syndicate were conducting activities far in excess of what had been
originally represented Ms Merry retained the Law Office of Donald E
Boss to write a cease and desist letter to Peter Withers and The Kinesis
syndicate Declaration of Melanie Merry at page 2 lines 25 to 28 and
Declaration of Donald E Boss at page 1 lines 9 to 13 Attached hereto
and incorporated herein by this reference as Exhibit e is a copy of
that letter
During the next six months or so counsel for Plaintiff and counsel
for Defendants attempted to negotiate a licensing agreement between the
parties Declaration of Melanie Merry at page 3 lines 1 to 7 and
Declaration of Donald E Boss at page 1 lines 14 to 21 During the
course of those negotaions counsel for Defendant initially indicated a
willingness to enter into such an agreement Declaration of Donald E
Boss at page 1 lines 14 to 21
Ultimately however counsel for the Kinesis Syndicate stated that
Peter Withers was unwilling to sign the agreement unless his
organization could continue to source and invoice customers and deal
with the public at-large under the Naturally New Zealand name
Declaration of Donald E Boss at page 1 lines 20 to 22 Due to
Defendants desire to continue its business operations under the name
Naturally New Zealand this action has resulted
During the cour-se ufa subsequent investi-gatioIl into the matter
Plaintiff has learned the following additional facts
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1 A That Market Interface LLC filed its Articles of Organization
2 on April 1 1997 - five and one-half years after Plaintiff began doing
3 business under that name Attached hereto as Exhibit 0 is a true and
4 correct copy of the Ficititious Business Filing for Los Angeles county
as filed by Peter Withers
6 B That Defendants through their authorized agent Peter
7 Withers had stated to a third party that Defendants were aware of the
8 prior use of that name but that Defendants would eventually own the
9 rights to use the Naturally New Zealand name Declaration of Rochelle
Endly at page 1 line 27 to page 2 line 4 and Declaration of Noel
11 Turner at page 1 lines 18 to 20
12 C That Peter Withers formed Defendant Market Interface LLC for
13 the sole purpose of doing business under the Naturally New Zealand
14 name Declaration of Melanie Merry at page 3 lines 8 to 14 i and
Exhibit E a true and correct copy ofa download of Defendant
16 Market Interface LLCs web site wherein Defendants state that Market
17 Interface LLC was formed expressly for the Naturally New Zealand
18 marketing campaign See page 3 under the heading Management Team
19 D That Market Interface LLC claims the ownership rights to a
state trademark in the Naturally New Zealand name despite Peter Withers
21 prior knowledge of Plaintiffs use of that name See Exhibit E
22 E That Defendant Market Interface LLC holds itself out as the
23 owner of a federal trade name registration for the name Naturally New
24 Zealand on its cartons of ice cream when in fact its does not hold
such a registration Attached hereto as Exhibit F are two copies of
~--2~ a container for uAnnie sTce Cream one of tne pr-oducts as advertized on
27 the web site (Exhibit 0)
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Also attached hereto as Exhibit Gil is a true and correct copy of
the results of a trademark search performed for the name Naturally New
Zealand Declaration of Donald EBoss at page 2 lines 1 to 8
The court will note that the 1-800-933-7367 telephone number listed
on Exhibit F is the same telephone number as provided on Defendants
website Exhibit D
~ A FIRST IN TIME USER HOLDS A REBUTTABLE PRESUMPTION OF
THE RIGHT TO USE THE NAME
It is a well-established principle of the law that the first in
time registrant of a name under a filing with either the Secretary of
State or by Fictitious Business Name filing holds the exclusive right to
use that name Business and Professions Code section 14416
In the case at bar Plaintiff filed its corporate name change with
the Secretary of States Office on December 20 1991 and proceeded to
conduct business under that name continuously thereafter Defendant
Market Interface LLC did not file its Fictitious Business Name filing
until June 24 1997
3 A PRELIMINARY INJUNCTION SHOULD BE ISSUED IF PLAINTIFFS
RIGHT TO RELIEF IS APPARENT FROM THE FROM THE COMPLAINT OR VERIFIED
DECLARATIONS AND THE RELIEF RESTRAINS THE CONTINUANCE OF THE ACT
COMPLAINED OF
An injunction may be granted when it appears from the complaint or
evidence submitted that Plaintiff is entitled to the relief demanded
which consists of restraining the further commission of an act
complained of Code of Civil Procedure Section 526(a) (1) and see
Dingley v Buckner 11 Cal App 181 183184 104 P478 (1909) and
Southern Leadership Conference v Al Malaikah Auditorium Co 230
CalApp 3d 207 223 281 Cal Rptr 216 (1991)
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Business and Professions Code Section 14402 states Any court of
competent jurisdiction may restrain by injunction any use of trade
names in violation of the rights defined in this chapter
1 DEFENDANTS CONTINUED USE OF THE NAME WILL LIKELY CAUSE
CONFUSION UNLESS RESTRAINED BY COURT ORDER
Plaintiff and Defendants do business in a relatively small
industry Plaintiff f s customers are wholesalers that are in direct
competition with the Defendants As such Plaintiff has already
experienced several occasions in which third parties were confused as to
the relationship between the parties to this action It seems certain
that such confusion will continue to occur in the future unless
restrained by court order
b A PRELIMINARY INJUNCTION SHOULD BE ISSUED SINCE MONETARY
DAMAGES ARE AN INADEQUATE REMEDY
An injunction may be granted when pecuniary compensation will not
afford adequate relief or when it would be extremely difficult to
ascertain the amount of compensation that would afford complete relief
Code of Civil Procedure Sections 526(a) (4) amp 526(a) (5)
Here I the value of Plaintiffs damages due to potential lost sales
confusion within the industry potential credit problems or other
damages would be extremely difficult to calculate at the time of trial
Accordingly issuance of a preliminary injunction is the most
appropriate remedy in this matter
h CONCLUSION
Based upon Plaintiffs prior use Naturally New Zealand name the
confusion that has already occurred as to the identity of the parties
involved in this action based upon the sUbstantial similarity of their
names the power of the court to impose a preliminary injunction
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pursuant to Business and Professions Code section 14402 and the
inadequacy of monetary damages Plaintiff respectfully requests the
imposition of the preliminary junction as prayed for in the accompanying
Order of the Superior Court
LAW OFFICES OF DONALD E BOSS
DATED November 2 1998 BY~7~ ~N~SS Attorney for Plaintiff Naturally New Zealand Products Inc
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DECLARATION OF MELANIE MERRY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Melanie Merry declare as follows
1 I am the President of Naturally New Zealand Products Inc an
importer of seafood products that has been doing business under that
name since December of 1991 I have personal first-hand knowledge of
the following facts and if called upon to testify as set forth below
could and would competently do so
2 Attached hereto as Exhibit A and incorporated herein by this
reference is a true and correct copy of the certificate of Amendment of
the Articles of Incorporation changing the name of the corporation from
New Zealand Pacific Products Inc to Naturally New Zealand Products
Inc on December 20 1991
3 Plaintiffs business activities include purchasing seafood
products from suppliers located in New Zealand Tonga Fiji and
Australia and re-selling those products to various wholesalers located
in California who then sell those items directly to restaurants and
grocery stores often in competition with the Defendants products
4 Since doing business under the Naturally New Zealand Products
Inc name I had occasion to deal with Peter withers in his capacity as
a member of a trade organization funded by the New Zealand government
During the course of those dealings Peter withers was aware of my use
of the Naturally New Zealand Products Inc name as he was dealing with
me in my capacity as president of my corporation
5 In late January or early February of 1997 I received a
friendly telephone call from Peter withers inquiring as to whether I had
any objections to his doing a small in-store promotion in conjunction
with Whole Foods Markets Inc under the name Naturally New Zealand
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
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DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
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I Noel Turner declare as follows
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1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
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7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
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908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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In the early part of 1997 Plaintiffs President Melanie Merry
received a telephone call from Peter Withers During the course of
that conversation Peter withers stated to that he had formed an
organization called The Kinesis Syndicate and that said organization
desired to hold an in-store promotion inside the Whole Foods Markets
Inc chain of specialty grocery stores under the name Naturally New
Zealand Declaration of Melanie Merry at page 1 lines 25-28
From the conversation Melanie Merry was lead to believe that the
promotion would constitute some display banners and in-store promotional
advertisements and little to nothing else Declaration of Melanie Merry
at page 2 lines 1 to 3
Based upon Peter withers representations that The Kinesis Syndicate
would be doing nothing more than a simple in-store promotion Melanie
Merry agreed that the Kinesis syndicate could use the name Naturally New
Zealand for such a limited purpose Declaration of Melanie Merry at
page 2 lines 7 to 10
Some months later in the middle of 1997 Melanie Merry received a
facsimile communication from Bruce Young the Chief Executive of Mona
Pacific Fisheries Ltd informing her that The Kinesis syndicate was not
merely using the name for a simple in-store promotion but was in fact
shipping and sourcing product under the name Naturally New Zealand as
well as conducting business operations under that name with various
third parties Declaration of Melanie Merry at page 2 lines 11 to 16
Attached hereto as Exhibit Btl is a true and correct copy of the letter
from Bruce Young to Melanie Merry
Sometime thereafterMelanie Merry received a telephone call from
Seafax a credit organization that deals with suppliers and vendors in
the seafood trade During the course of that conversation the caller
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inquired as to whether Ms Merry had recently filled out an application
for a line of credit under the Naturally New Zealand name Declaration
of Melanie Merry at page 2 lines 17 to 24
In response to the information that Peter Withers and The Kinesis
syndicate were conducting activities far in excess of what had been
originally represented Ms Merry retained the Law Office of Donald E
Boss to write a cease and desist letter to Peter Withers and The Kinesis
syndicate Declaration of Melanie Merry at page 2 lines 25 to 28 and
Declaration of Donald E Boss at page 1 lines 9 to 13 Attached hereto
and incorporated herein by this reference as Exhibit e is a copy of
that letter
During the next six months or so counsel for Plaintiff and counsel
for Defendants attempted to negotiate a licensing agreement between the
parties Declaration of Melanie Merry at page 3 lines 1 to 7 and
Declaration of Donald E Boss at page 1 lines 14 to 21 During the
course of those negotaions counsel for Defendant initially indicated a
willingness to enter into such an agreement Declaration of Donald E
Boss at page 1 lines 14 to 21
Ultimately however counsel for the Kinesis Syndicate stated that
Peter Withers was unwilling to sign the agreement unless his
organization could continue to source and invoice customers and deal
with the public at-large under the Naturally New Zealand name
Declaration of Donald E Boss at page 1 lines 20 to 22 Due to
Defendants desire to continue its business operations under the name
Naturally New Zealand this action has resulted
During the cour-se ufa subsequent investi-gatioIl into the matter
Plaintiff has learned the following additional facts
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1 A That Market Interface LLC filed its Articles of Organization
2 on April 1 1997 - five and one-half years after Plaintiff began doing
3 business under that name Attached hereto as Exhibit 0 is a true and
4 correct copy of the Ficititious Business Filing for Los Angeles county
as filed by Peter Withers
6 B That Defendants through their authorized agent Peter
7 Withers had stated to a third party that Defendants were aware of the
8 prior use of that name but that Defendants would eventually own the
9 rights to use the Naturally New Zealand name Declaration of Rochelle
Endly at page 1 line 27 to page 2 line 4 and Declaration of Noel
11 Turner at page 1 lines 18 to 20
12 C That Peter Withers formed Defendant Market Interface LLC for
13 the sole purpose of doing business under the Naturally New Zealand
14 name Declaration of Melanie Merry at page 3 lines 8 to 14 i and
Exhibit E a true and correct copy ofa download of Defendant
16 Market Interface LLCs web site wherein Defendants state that Market
17 Interface LLC was formed expressly for the Naturally New Zealand
18 marketing campaign See page 3 under the heading Management Team
19 D That Market Interface LLC claims the ownership rights to a
state trademark in the Naturally New Zealand name despite Peter Withers
21 prior knowledge of Plaintiffs use of that name See Exhibit E
22 E That Defendant Market Interface LLC holds itself out as the
23 owner of a federal trade name registration for the name Naturally New
24 Zealand on its cartons of ice cream when in fact its does not hold
such a registration Attached hereto as Exhibit F are two copies of
~--2~ a container for uAnnie sTce Cream one of tne pr-oducts as advertized on
27 the web site (Exhibit 0)
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Also attached hereto as Exhibit Gil is a true and correct copy of
the results of a trademark search performed for the name Naturally New
Zealand Declaration of Donald EBoss at page 2 lines 1 to 8
The court will note that the 1-800-933-7367 telephone number listed
on Exhibit F is the same telephone number as provided on Defendants
website Exhibit D
~ A FIRST IN TIME USER HOLDS A REBUTTABLE PRESUMPTION OF
THE RIGHT TO USE THE NAME
It is a well-established principle of the law that the first in
time registrant of a name under a filing with either the Secretary of
State or by Fictitious Business Name filing holds the exclusive right to
use that name Business and Professions Code section 14416
In the case at bar Plaintiff filed its corporate name change with
the Secretary of States Office on December 20 1991 and proceeded to
conduct business under that name continuously thereafter Defendant
Market Interface LLC did not file its Fictitious Business Name filing
until June 24 1997
3 A PRELIMINARY INJUNCTION SHOULD BE ISSUED IF PLAINTIFFS
RIGHT TO RELIEF IS APPARENT FROM THE FROM THE COMPLAINT OR VERIFIED
DECLARATIONS AND THE RELIEF RESTRAINS THE CONTINUANCE OF THE ACT
COMPLAINED OF
An injunction may be granted when it appears from the complaint or
evidence submitted that Plaintiff is entitled to the relief demanded
which consists of restraining the further commission of an act
complained of Code of Civil Procedure Section 526(a) (1) and see
Dingley v Buckner 11 Cal App 181 183184 104 P478 (1909) and
Southern Leadership Conference v Al Malaikah Auditorium Co 230
CalApp 3d 207 223 281 Cal Rptr 216 (1991)
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Business and Professions Code Section 14402 states Any court of
competent jurisdiction may restrain by injunction any use of trade
names in violation of the rights defined in this chapter
1 DEFENDANTS CONTINUED USE OF THE NAME WILL LIKELY CAUSE
CONFUSION UNLESS RESTRAINED BY COURT ORDER
Plaintiff and Defendants do business in a relatively small
industry Plaintiff f s customers are wholesalers that are in direct
competition with the Defendants As such Plaintiff has already
experienced several occasions in which third parties were confused as to
the relationship between the parties to this action It seems certain
that such confusion will continue to occur in the future unless
restrained by court order
b A PRELIMINARY INJUNCTION SHOULD BE ISSUED SINCE MONETARY
DAMAGES ARE AN INADEQUATE REMEDY
An injunction may be granted when pecuniary compensation will not
afford adequate relief or when it would be extremely difficult to
ascertain the amount of compensation that would afford complete relief
Code of Civil Procedure Sections 526(a) (4) amp 526(a) (5)
Here I the value of Plaintiffs damages due to potential lost sales
confusion within the industry potential credit problems or other
damages would be extremely difficult to calculate at the time of trial
Accordingly issuance of a preliminary injunction is the most
appropriate remedy in this matter
h CONCLUSION
Based upon Plaintiffs prior use Naturally New Zealand name the
confusion that has already occurred as to the identity of the parties
involved in this action based upon the sUbstantial similarity of their
names the power of the court to impose a preliminary injunction
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pursuant to Business and Professions Code section 14402 and the
inadequacy of monetary damages Plaintiff respectfully requests the
imposition of the preliminary junction as prayed for in the accompanying
Order of the Superior Court
LAW OFFICES OF DONALD E BOSS
DATED November 2 1998 BY~7~ ~N~SS Attorney for Plaintiff Naturally New Zealand Products Inc
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DECLARATION OF MELANIE MERRY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Melanie Merry declare as follows
1 I am the President of Naturally New Zealand Products Inc an
importer of seafood products that has been doing business under that
name since December of 1991 I have personal first-hand knowledge of
the following facts and if called upon to testify as set forth below
could and would competently do so
2 Attached hereto as Exhibit A and incorporated herein by this
reference is a true and correct copy of the certificate of Amendment of
the Articles of Incorporation changing the name of the corporation from
New Zealand Pacific Products Inc to Naturally New Zealand Products
Inc on December 20 1991
3 Plaintiffs business activities include purchasing seafood
products from suppliers located in New Zealand Tonga Fiji and
Australia and re-selling those products to various wholesalers located
in California who then sell those items directly to restaurants and
grocery stores often in competition with the Defendants products
4 Since doing business under the Naturally New Zealand Products
Inc name I had occasion to deal with Peter withers in his capacity as
a member of a trade organization funded by the New Zealand government
During the course of those dealings Peter withers was aware of my use
of the Naturally New Zealand Products Inc name as he was dealing with
me in my capacity as president of my corporation
5 In late January or early February of 1997 I received a
friendly telephone call from Peter withers inquiring as to whether I had
any objections to his doing a small in-store promotion in conjunction
with Whole Foods Markets Inc under the name Naturally New Zealand
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
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DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
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1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
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7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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inquired as to whether Ms Merry had recently filled out an application
for a line of credit under the Naturally New Zealand name Declaration
of Melanie Merry at page 2 lines 17 to 24
In response to the information that Peter Withers and The Kinesis
syndicate were conducting activities far in excess of what had been
originally represented Ms Merry retained the Law Office of Donald E
Boss to write a cease and desist letter to Peter Withers and The Kinesis
syndicate Declaration of Melanie Merry at page 2 lines 25 to 28 and
Declaration of Donald E Boss at page 1 lines 9 to 13 Attached hereto
and incorporated herein by this reference as Exhibit e is a copy of
that letter
During the next six months or so counsel for Plaintiff and counsel
for Defendants attempted to negotiate a licensing agreement between the
parties Declaration of Melanie Merry at page 3 lines 1 to 7 and
Declaration of Donald E Boss at page 1 lines 14 to 21 During the
course of those negotaions counsel for Defendant initially indicated a
willingness to enter into such an agreement Declaration of Donald E
Boss at page 1 lines 14 to 21
Ultimately however counsel for the Kinesis Syndicate stated that
Peter Withers was unwilling to sign the agreement unless his
organization could continue to source and invoice customers and deal
with the public at-large under the Naturally New Zealand name
Declaration of Donald E Boss at page 1 lines 20 to 22 Due to
Defendants desire to continue its business operations under the name
Naturally New Zealand this action has resulted
During the cour-se ufa subsequent investi-gatioIl into the matter
Plaintiff has learned the following additional facts
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1 A That Market Interface LLC filed its Articles of Organization
2 on April 1 1997 - five and one-half years after Plaintiff began doing
3 business under that name Attached hereto as Exhibit 0 is a true and
4 correct copy of the Ficititious Business Filing for Los Angeles county
as filed by Peter Withers
6 B That Defendants through their authorized agent Peter
7 Withers had stated to a third party that Defendants were aware of the
8 prior use of that name but that Defendants would eventually own the
9 rights to use the Naturally New Zealand name Declaration of Rochelle
Endly at page 1 line 27 to page 2 line 4 and Declaration of Noel
11 Turner at page 1 lines 18 to 20
12 C That Peter Withers formed Defendant Market Interface LLC for
13 the sole purpose of doing business under the Naturally New Zealand
14 name Declaration of Melanie Merry at page 3 lines 8 to 14 i and
Exhibit E a true and correct copy ofa download of Defendant
16 Market Interface LLCs web site wherein Defendants state that Market
17 Interface LLC was formed expressly for the Naturally New Zealand
18 marketing campaign See page 3 under the heading Management Team
19 D That Market Interface LLC claims the ownership rights to a
state trademark in the Naturally New Zealand name despite Peter Withers
21 prior knowledge of Plaintiffs use of that name See Exhibit E
22 E That Defendant Market Interface LLC holds itself out as the
23 owner of a federal trade name registration for the name Naturally New
24 Zealand on its cartons of ice cream when in fact its does not hold
such a registration Attached hereto as Exhibit F are two copies of
~--2~ a container for uAnnie sTce Cream one of tne pr-oducts as advertized on
27 the web site (Exhibit 0)
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Also attached hereto as Exhibit Gil is a true and correct copy of
the results of a trademark search performed for the name Naturally New
Zealand Declaration of Donald EBoss at page 2 lines 1 to 8
The court will note that the 1-800-933-7367 telephone number listed
on Exhibit F is the same telephone number as provided on Defendants
website Exhibit D
~ A FIRST IN TIME USER HOLDS A REBUTTABLE PRESUMPTION OF
THE RIGHT TO USE THE NAME
It is a well-established principle of the law that the first in
time registrant of a name under a filing with either the Secretary of
State or by Fictitious Business Name filing holds the exclusive right to
use that name Business and Professions Code section 14416
In the case at bar Plaintiff filed its corporate name change with
the Secretary of States Office on December 20 1991 and proceeded to
conduct business under that name continuously thereafter Defendant
Market Interface LLC did not file its Fictitious Business Name filing
until June 24 1997
3 A PRELIMINARY INJUNCTION SHOULD BE ISSUED IF PLAINTIFFS
RIGHT TO RELIEF IS APPARENT FROM THE FROM THE COMPLAINT OR VERIFIED
DECLARATIONS AND THE RELIEF RESTRAINS THE CONTINUANCE OF THE ACT
COMPLAINED OF
An injunction may be granted when it appears from the complaint or
evidence submitted that Plaintiff is entitled to the relief demanded
which consists of restraining the further commission of an act
complained of Code of Civil Procedure Section 526(a) (1) and see
Dingley v Buckner 11 Cal App 181 183184 104 P478 (1909) and
Southern Leadership Conference v Al Malaikah Auditorium Co 230
CalApp 3d 207 223 281 Cal Rptr 216 (1991)
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Business and Professions Code Section 14402 states Any court of
competent jurisdiction may restrain by injunction any use of trade
names in violation of the rights defined in this chapter
1 DEFENDANTS CONTINUED USE OF THE NAME WILL LIKELY CAUSE
CONFUSION UNLESS RESTRAINED BY COURT ORDER
Plaintiff and Defendants do business in a relatively small
industry Plaintiff f s customers are wholesalers that are in direct
competition with the Defendants As such Plaintiff has already
experienced several occasions in which third parties were confused as to
the relationship between the parties to this action It seems certain
that such confusion will continue to occur in the future unless
restrained by court order
b A PRELIMINARY INJUNCTION SHOULD BE ISSUED SINCE MONETARY
DAMAGES ARE AN INADEQUATE REMEDY
An injunction may be granted when pecuniary compensation will not
afford adequate relief or when it would be extremely difficult to
ascertain the amount of compensation that would afford complete relief
Code of Civil Procedure Sections 526(a) (4) amp 526(a) (5)
Here I the value of Plaintiffs damages due to potential lost sales
confusion within the industry potential credit problems or other
damages would be extremely difficult to calculate at the time of trial
Accordingly issuance of a preliminary injunction is the most
appropriate remedy in this matter
h CONCLUSION
Based upon Plaintiffs prior use Naturally New Zealand name the
confusion that has already occurred as to the identity of the parties
involved in this action based upon the sUbstantial similarity of their
names the power of the court to impose a preliminary injunction
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pursuant to Business and Professions Code section 14402 and the
inadequacy of monetary damages Plaintiff respectfully requests the
imposition of the preliminary junction as prayed for in the accompanying
Order of the Superior Court
LAW OFFICES OF DONALD E BOSS
DATED November 2 1998 BY~7~ ~N~SS Attorney for Plaintiff Naturally New Zealand Products Inc
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DECLARATION OF MELANIE MERRY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Melanie Merry declare as follows
1 I am the President of Naturally New Zealand Products Inc an
importer of seafood products that has been doing business under that
name since December of 1991 I have personal first-hand knowledge of
the following facts and if called upon to testify as set forth below
could and would competently do so
2 Attached hereto as Exhibit A and incorporated herein by this
reference is a true and correct copy of the certificate of Amendment of
the Articles of Incorporation changing the name of the corporation from
New Zealand Pacific Products Inc to Naturally New Zealand Products
Inc on December 20 1991
3 Plaintiffs business activities include purchasing seafood
products from suppliers located in New Zealand Tonga Fiji and
Australia and re-selling those products to various wholesalers located
in California who then sell those items directly to restaurants and
grocery stores often in competition with the Defendants products
4 Since doing business under the Naturally New Zealand Products
Inc name I had occasion to deal with Peter withers in his capacity as
a member of a trade organization funded by the New Zealand government
During the course of those dealings Peter withers was aware of my use
of the Naturally New Zealand Products Inc name as he was dealing with
me in my capacity as president of my corporation
5 In late January or early February of 1997 I received a
friendly telephone call from Peter withers inquiring as to whether I had
any objections to his doing a small in-store promotion in conjunction
with Whole Foods Markets Inc under the name Naturally New Zealand
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
IIIII
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
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DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
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7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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1 A That Market Interface LLC filed its Articles of Organization
2 on April 1 1997 - five and one-half years after Plaintiff began doing
3 business under that name Attached hereto as Exhibit 0 is a true and
4 correct copy of the Ficititious Business Filing for Los Angeles county
as filed by Peter Withers
6 B That Defendants through their authorized agent Peter
7 Withers had stated to a third party that Defendants were aware of the
8 prior use of that name but that Defendants would eventually own the
9 rights to use the Naturally New Zealand name Declaration of Rochelle
Endly at page 1 line 27 to page 2 line 4 and Declaration of Noel
11 Turner at page 1 lines 18 to 20
12 C That Peter Withers formed Defendant Market Interface LLC for
13 the sole purpose of doing business under the Naturally New Zealand
14 name Declaration of Melanie Merry at page 3 lines 8 to 14 i and
Exhibit E a true and correct copy ofa download of Defendant
16 Market Interface LLCs web site wherein Defendants state that Market
17 Interface LLC was formed expressly for the Naturally New Zealand
18 marketing campaign See page 3 under the heading Management Team
19 D That Market Interface LLC claims the ownership rights to a
state trademark in the Naturally New Zealand name despite Peter Withers
21 prior knowledge of Plaintiffs use of that name See Exhibit E
22 E That Defendant Market Interface LLC holds itself out as the
23 owner of a federal trade name registration for the name Naturally New
24 Zealand on its cartons of ice cream when in fact its does not hold
such a registration Attached hereto as Exhibit F are two copies of
~--2~ a container for uAnnie sTce Cream one of tne pr-oducts as advertized on
27 the web site (Exhibit 0)
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Also attached hereto as Exhibit Gil is a true and correct copy of
the results of a trademark search performed for the name Naturally New
Zealand Declaration of Donald EBoss at page 2 lines 1 to 8
The court will note that the 1-800-933-7367 telephone number listed
on Exhibit F is the same telephone number as provided on Defendants
website Exhibit D
~ A FIRST IN TIME USER HOLDS A REBUTTABLE PRESUMPTION OF
THE RIGHT TO USE THE NAME
It is a well-established principle of the law that the first in
time registrant of a name under a filing with either the Secretary of
State or by Fictitious Business Name filing holds the exclusive right to
use that name Business and Professions Code section 14416
In the case at bar Plaintiff filed its corporate name change with
the Secretary of States Office on December 20 1991 and proceeded to
conduct business under that name continuously thereafter Defendant
Market Interface LLC did not file its Fictitious Business Name filing
until June 24 1997
3 A PRELIMINARY INJUNCTION SHOULD BE ISSUED IF PLAINTIFFS
RIGHT TO RELIEF IS APPARENT FROM THE FROM THE COMPLAINT OR VERIFIED
DECLARATIONS AND THE RELIEF RESTRAINS THE CONTINUANCE OF THE ACT
COMPLAINED OF
An injunction may be granted when it appears from the complaint or
evidence submitted that Plaintiff is entitled to the relief demanded
which consists of restraining the further commission of an act
complained of Code of Civil Procedure Section 526(a) (1) and see
Dingley v Buckner 11 Cal App 181 183184 104 P478 (1909) and
Southern Leadership Conference v Al Malaikah Auditorium Co 230
CalApp 3d 207 223 281 Cal Rptr 216 (1991)
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Business and Professions Code Section 14402 states Any court of
competent jurisdiction may restrain by injunction any use of trade
names in violation of the rights defined in this chapter
1 DEFENDANTS CONTINUED USE OF THE NAME WILL LIKELY CAUSE
CONFUSION UNLESS RESTRAINED BY COURT ORDER
Plaintiff and Defendants do business in a relatively small
industry Plaintiff f s customers are wholesalers that are in direct
competition with the Defendants As such Plaintiff has already
experienced several occasions in which third parties were confused as to
the relationship between the parties to this action It seems certain
that such confusion will continue to occur in the future unless
restrained by court order
b A PRELIMINARY INJUNCTION SHOULD BE ISSUED SINCE MONETARY
DAMAGES ARE AN INADEQUATE REMEDY
An injunction may be granted when pecuniary compensation will not
afford adequate relief or when it would be extremely difficult to
ascertain the amount of compensation that would afford complete relief
Code of Civil Procedure Sections 526(a) (4) amp 526(a) (5)
Here I the value of Plaintiffs damages due to potential lost sales
confusion within the industry potential credit problems or other
damages would be extremely difficult to calculate at the time of trial
Accordingly issuance of a preliminary injunction is the most
appropriate remedy in this matter
h CONCLUSION
Based upon Plaintiffs prior use Naturally New Zealand name the
confusion that has already occurred as to the identity of the parties
involved in this action based upon the sUbstantial similarity of their
names the power of the court to impose a preliminary injunction
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pursuant to Business and Professions Code section 14402 and the
inadequacy of monetary damages Plaintiff respectfully requests the
imposition of the preliminary junction as prayed for in the accompanying
Order of the Superior Court
LAW OFFICES OF DONALD E BOSS
DATED November 2 1998 BY~7~ ~N~SS Attorney for Plaintiff Naturally New Zealand Products Inc
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DECLARATION OF MELANIE MERRY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Melanie Merry declare as follows
1 I am the President of Naturally New Zealand Products Inc an
importer of seafood products that has been doing business under that
name since December of 1991 I have personal first-hand knowledge of
the following facts and if called upon to testify as set forth below
could and would competently do so
2 Attached hereto as Exhibit A and incorporated herein by this
reference is a true and correct copy of the certificate of Amendment of
the Articles of Incorporation changing the name of the corporation from
New Zealand Pacific Products Inc to Naturally New Zealand Products
Inc on December 20 1991
3 Plaintiffs business activities include purchasing seafood
products from suppliers located in New Zealand Tonga Fiji and
Australia and re-selling those products to various wholesalers located
in California who then sell those items directly to restaurants and
grocery stores often in competition with the Defendants products
4 Since doing business under the Naturally New Zealand Products
Inc name I had occasion to deal with Peter withers in his capacity as
a member of a trade organization funded by the New Zealand government
During the course of those dealings Peter withers was aware of my use
of the Naturally New Zealand Products Inc name as he was dealing with
me in my capacity as president of my corporation
5 In late January or early February of 1997 I received a
friendly telephone call from Peter withers inquiring as to whether I had
any objections to his doing a small in-store promotion in conjunction
with Whole Foods Markets Inc under the name Naturally New Zealand
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
IIIII
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
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DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
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7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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Also attached hereto as Exhibit Gil is a true and correct copy of
the results of a trademark search performed for the name Naturally New
Zealand Declaration of Donald EBoss at page 2 lines 1 to 8
The court will note that the 1-800-933-7367 telephone number listed
on Exhibit F is the same telephone number as provided on Defendants
website Exhibit D
~ A FIRST IN TIME USER HOLDS A REBUTTABLE PRESUMPTION OF
THE RIGHT TO USE THE NAME
It is a well-established principle of the law that the first in
time registrant of a name under a filing with either the Secretary of
State or by Fictitious Business Name filing holds the exclusive right to
use that name Business and Professions Code section 14416
In the case at bar Plaintiff filed its corporate name change with
the Secretary of States Office on December 20 1991 and proceeded to
conduct business under that name continuously thereafter Defendant
Market Interface LLC did not file its Fictitious Business Name filing
until June 24 1997
3 A PRELIMINARY INJUNCTION SHOULD BE ISSUED IF PLAINTIFFS
RIGHT TO RELIEF IS APPARENT FROM THE FROM THE COMPLAINT OR VERIFIED
DECLARATIONS AND THE RELIEF RESTRAINS THE CONTINUANCE OF THE ACT
COMPLAINED OF
An injunction may be granted when it appears from the complaint or
evidence submitted that Plaintiff is entitled to the relief demanded
which consists of restraining the further commission of an act
complained of Code of Civil Procedure Section 526(a) (1) and see
Dingley v Buckner 11 Cal App 181 183184 104 P478 (1909) and
Southern Leadership Conference v Al Malaikah Auditorium Co 230
CalApp 3d 207 223 281 Cal Rptr 216 (1991)
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Business and Professions Code Section 14402 states Any court of
competent jurisdiction may restrain by injunction any use of trade
names in violation of the rights defined in this chapter
1 DEFENDANTS CONTINUED USE OF THE NAME WILL LIKELY CAUSE
CONFUSION UNLESS RESTRAINED BY COURT ORDER
Plaintiff and Defendants do business in a relatively small
industry Plaintiff f s customers are wholesalers that are in direct
competition with the Defendants As such Plaintiff has already
experienced several occasions in which third parties were confused as to
the relationship between the parties to this action It seems certain
that such confusion will continue to occur in the future unless
restrained by court order
b A PRELIMINARY INJUNCTION SHOULD BE ISSUED SINCE MONETARY
DAMAGES ARE AN INADEQUATE REMEDY
An injunction may be granted when pecuniary compensation will not
afford adequate relief or when it would be extremely difficult to
ascertain the amount of compensation that would afford complete relief
Code of Civil Procedure Sections 526(a) (4) amp 526(a) (5)
Here I the value of Plaintiffs damages due to potential lost sales
confusion within the industry potential credit problems or other
damages would be extremely difficult to calculate at the time of trial
Accordingly issuance of a preliminary injunction is the most
appropriate remedy in this matter
h CONCLUSION
Based upon Plaintiffs prior use Naturally New Zealand name the
confusion that has already occurred as to the identity of the parties
involved in this action based upon the sUbstantial similarity of their
names the power of the court to impose a preliminary injunction
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pursuant to Business and Professions Code section 14402 and the
inadequacy of monetary damages Plaintiff respectfully requests the
imposition of the preliminary junction as prayed for in the accompanying
Order of the Superior Court
LAW OFFICES OF DONALD E BOSS
DATED November 2 1998 BY~7~ ~N~SS Attorney for Plaintiff Naturally New Zealand Products Inc
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DECLARATION OF MELANIE MERRY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Melanie Merry declare as follows
1 I am the President of Naturally New Zealand Products Inc an
importer of seafood products that has been doing business under that
name since December of 1991 I have personal first-hand knowledge of
the following facts and if called upon to testify as set forth below
could and would competently do so
2 Attached hereto as Exhibit A and incorporated herein by this
reference is a true and correct copy of the certificate of Amendment of
the Articles of Incorporation changing the name of the corporation from
New Zealand Pacific Products Inc to Naturally New Zealand Products
Inc on December 20 1991
3 Plaintiffs business activities include purchasing seafood
products from suppliers located in New Zealand Tonga Fiji and
Australia and re-selling those products to various wholesalers located
in California who then sell those items directly to restaurants and
grocery stores often in competition with the Defendants products
4 Since doing business under the Naturally New Zealand Products
Inc name I had occasion to deal with Peter withers in his capacity as
a member of a trade organization funded by the New Zealand government
During the course of those dealings Peter withers was aware of my use
of the Naturally New Zealand Products Inc name as he was dealing with
me in my capacity as president of my corporation
5 In late January or early February of 1997 I received a
friendly telephone call from Peter withers inquiring as to whether I had
any objections to his doing a small in-store promotion in conjunction
with Whole Foods Markets Inc under the name Naturally New Zealand
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
IIIII
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
4
DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
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7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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Business and Professions Code Section 14402 states Any court of
competent jurisdiction may restrain by injunction any use of trade
names in violation of the rights defined in this chapter
1 DEFENDANTS CONTINUED USE OF THE NAME WILL LIKELY CAUSE
CONFUSION UNLESS RESTRAINED BY COURT ORDER
Plaintiff and Defendants do business in a relatively small
industry Plaintiff f s customers are wholesalers that are in direct
competition with the Defendants As such Plaintiff has already
experienced several occasions in which third parties were confused as to
the relationship between the parties to this action It seems certain
that such confusion will continue to occur in the future unless
restrained by court order
b A PRELIMINARY INJUNCTION SHOULD BE ISSUED SINCE MONETARY
DAMAGES ARE AN INADEQUATE REMEDY
An injunction may be granted when pecuniary compensation will not
afford adequate relief or when it would be extremely difficult to
ascertain the amount of compensation that would afford complete relief
Code of Civil Procedure Sections 526(a) (4) amp 526(a) (5)
Here I the value of Plaintiffs damages due to potential lost sales
confusion within the industry potential credit problems or other
damages would be extremely difficult to calculate at the time of trial
Accordingly issuance of a preliminary injunction is the most
appropriate remedy in this matter
h CONCLUSION
Based upon Plaintiffs prior use Naturally New Zealand name the
confusion that has already occurred as to the identity of the parties
involved in this action based upon the sUbstantial similarity of their
names the power of the court to impose a preliminary injunction
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pursuant to Business and Professions Code section 14402 and the
inadequacy of monetary damages Plaintiff respectfully requests the
imposition of the preliminary junction as prayed for in the accompanying
Order of the Superior Court
LAW OFFICES OF DONALD E BOSS
DATED November 2 1998 BY~7~ ~N~SS Attorney for Plaintiff Naturally New Zealand Products Inc
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DECLARATION OF MELANIE MERRY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Melanie Merry declare as follows
1 I am the President of Naturally New Zealand Products Inc an
importer of seafood products that has been doing business under that
name since December of 1991 I have personal first-hand knowledge of
the following facts and if called upon to testify as set forth below
could and would competently do so
2 Attached hereto as Exhibit A and incorporated herein by this
reference is a true and correct copy of the certificate of Amendment of
the Articles of Incorporation changing the name of the corporation from
New Zealand Pacific Products Inc to Naturally New Zealand Products
Inc on December 20 1991
3 Plaintiffs business activities include purchasing seafood
products from suppliers located in New Zealand Tonga Fiji and
Australia and re-selling those products to various wholesalers located
in California who then sell those items directly to restaurants and
grocery stores often in competition with the Defendants products
4 Since doing business under the Naturally New Zealand Products
Inc name I had occasion to deal with Peter withers in his capacity as
a member of a trade organization funded by the New Zealand government
During the course of those dealings Peter withers was aware of my use
of the Naturally New Zealand Products Inc name as he was dealing with
me in my capacity as president of my corporation
5 In late January or early February of 1997 I received a
friendly telephone call from Peter withers inquiring as to whether I had
any objections to his doing a small in-store promotion in conjunction
with Whole Foods Markets Inc under the name Naturally New Zealand
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
IIIII
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
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DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
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7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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pursuant to Business and Professions Code section 14402 and the
inadequacy of monetary damages Plaintiff respectfully requests the
imposition of the preliminary junction as prayed for in the accompanying
Order of the Superior Court
LAW OFFICES OF DONALD E BOSS
DATED November 2 1998 BY~7~ ~N~SS Attorney for Plaintiff Naturally New Zealand Products Inc
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DECLARATION OF MELANIE MERRY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Melanie Merry declare as follows
1 I am the President of Naturally New Zealand Products Inc an
importer of seafood products that has been doing business under that
name since December of 1991 I have personal first-hand knowledge of
the following facts and if called upon to testify as set forth below
could and would competently do so
2 Attached hereto as Exhibit A and incorporated herein by this
reference is a true and correct copy of the certificate of Amendment of
the Articles of Incorporation changing the name of the corporation from
New Zealand Pacific Products Inc to Naturally New Zealand Products
Inc on December 20 1991
3 Plaintiffs business activities include purchasing seafood
products from suppliers located in New Zealand Tonga Fiji and
Australia and re-selling those products to various wholesalers located
in California who then sell those items directly to restaurants and
grocery stores often in competition with the Defendants products
4 Since doing business under the Naturally New Zealand Products
Inc name I had occasion to deal with Peter withers in his capacity as
a member of a trade organization funded by the New Zealand government
During the course of those dealings Peter withers was aware of my use
of the Naturally New Zealand Products Inc name as he was dealing with
me in my capacity as president of my corporation
5 In late January or early February of 1997 I received a
friendly telephone call from Peter withers inquiring as to whether I had
any objections to his doing a small in-store promotion in conjunction
with Whole Foods Markets Inc under the name Naturally New Zealand
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
IIIII
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
4
DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
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7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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DECLARATION OF MELANIE MERRY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Melanie Merry declare as follows
1 I am the President of Naturally New Zealand Products Inc an
importer of seafood products that has been doing business under that
name since December of 1991 I have personal first-hand knowledge of
the following facts and if called upon to testify as set forth below
could and would competently do so
2 Attached hereto as Exhibit A and incorporated herein by this
reference is a true and correct copy of the certificate of Amendment of
the Articles of Incorporation changing the name of the corporation from
New Zealand Pacific Products Inc to Naturally New Zealand Products
Inc on December 20 1991
3 Plaintiffs business activities include purchasing seafood
products from suppliers located in New Zealand Tonga Fiji and
Australia and re-selling those products to various wholesalers located
in California who then sell those items directly to restaurants and
grocery stores often in competition with the Defendants products
4 Since doing business under the Naturally New Zealand Products
Inc name I had occasion to deal with Peter withers in his capacity as
a member of a trade organization funded by the New Zealand government
During the course of those dealings Peter withers was aware of my use
of the Naturally New Zealand Products Inc name as he was dealing with
me in my capacity as president of my corporation
5 In late January or early February of 1997 I received a
friendly telephone call from Peter withers inquiring as to whether I had
any objections to his doing a small in-store promotion in conjunction
with Whole Foods Markets Inc under the name Naturally New Zealand
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
IIIII
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
4
DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
28
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
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7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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In explaining the concept of the promotion to me Peter withers lead me
to believe that the marketing program would amount to a few display ads
or banners being placed inside the Whole Foods Market stores
6 From the tenor of the conversation and from the choice of
Peter withers words I also assumed that the promotion would be for a
short period of time as is customary in the grocery business
7 After listening to Peter Withers description of the
promotion I stated that I had no objection to his using the name
Naturally New Zealand for an in-store promotion only as he described
the presentation to me during the course of that conversation
8 sometime thereafter I received a telephone call and fax
communication from Bruce Young of Mona Pacific Fisheries in New Zealand
informing me that another organization was shipping and sourcing product
under the Naturally New Zealand name A true and correct copy of the
fax that I received is attached hereto as Exhibit B and is incorporatshy
ed herein by this reference
9 Several months after that in september of 1997 I received a
telephone call from Seafax a credit organization that deals with
suppliers and vendors in the seafood business During the course of
that conversation I was informed that another organization had filled
out a credit application under the Naturally New Zealand name
informed the caller that I had not applied for credit and that any
organization or association operating under that name was not affiliated
with my company
10 Immediately thereafter I retained the Law Office of Donald E
Boss to writeuro aeease and desist letter A true ana correct copy of
that letter is attached hereto as Exhibit e and is incorporated herein
by this reference
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
IIIII
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
4
DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
28
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
1
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25
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7
7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
1
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11 During the next six months or so Mr Boss and counsel for
Peter withers to negotiate a licensing agreement between my company and
The Kinesis Syndicate the legal entity believed to be using the
Naturally New Zealand name at that time Ultimately however Mr
withers decided not to sign the agreement in part because he wanted to
continue sourcing and invoicing his customers under the Naturally New
Zealand name
12 Attached hereto and incorporated herein as Exhibit E is a
true and correct copy of a web site which I downloaded from the internet
on September 1 1998 of this year The court will note that the Kinesis
Syndicate andor Market Interface LLC are conducting business under the
Naturally New Zealand name in a manner far exceeding their use of the
name as originally represented to me during the course of that earlier
telephone conversation
13 The court will also note that Market Interface claims the
ownership rights to a state trademark in the Naturally New Zealand name
despite Peter withers prior knowledge of my company
14 I have filed this action and the accompanying motion for a
preliminary restraining order to prevent the Kinesis Syndicate Peter
Withers Richard Osborne Market Interface LLC arid any other parties
involved on their behalf from using the Naturally New Zealand name
15 I feel that Peter Withers initial telephone conversation with
me was intentionally misleading and deceptive in that he failed to tell
me that he would be applying for credit invoicing and sourcing
customers printing T-shirts with a corporate logo creating a web site
and doing business and assorted otherac-tivities under the Naturally New
Zealand name
IIIII
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
4
DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
28
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~-6
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
1
I
5
10
15
20
25
1
2
3
4
6
7
7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
1
5
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15
20
25
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3
4
6
7
8
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
1
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I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on November~~ 1998 at Covina California
~fA MELANIE ME~
4
DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
28
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~-6
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DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
1
I
5
10
15
20
25
1
2
3
4
6
7
7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
1
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
1
28
DECLARATION OF NOEL TURNER UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
2
I Noel Turner declare as follows
1
1 I am the President of Turner New Zealand an importer o~ pJu4~
products I have personal first-hand knowledge of the
6 following facts and if called upon to testify as set forth below I
7 could and would competently do so
8 2 During the course of 1997 I was invited by Peter withers to
9 become a participant in a business promotion venture under the name
10 Naturally New Zealand I was surprised to hear him use that name in
11 that I knew that it was already being used by Melanie Merry of Naturally
12 New Zealand Products Inc
13 3 In due course Peter withers came down to my offices in
14 Newport Beach California to speak to me about his business promotion
15 venture It was during the course of that meeting that I asked Peter
16 Withers about his use of the Naturally New Zealand name which is well
17 known in our small industry
18 4 In response to my questioning Peter withers stated that his
19 use of the name would not be an issue in that he would eventually own
20 the rights to use the Naturally New Zealand name
21 5 sometime thereafter I had a conversation with Melanie Merry
22 wherein I was shocked to learn that she had not agreed to sell her
23 rights to the name Naturally New Zealand
24 I declare under penalty of perjury under the laws of the state of
25 California that the foregoing is true and correct and that this
-2pound deGlar-ation was executed on October -~1998 at Newport Beach
27 California ~~ NO TURNER
28
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25
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~-6
27
28
DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
1
I
5
10
15
20
25
1
2
3
4
6
7
7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
1
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15
20
25
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4
6
7
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
1
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25
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~-6
27
28
DECLARATION OF ROCHELLE ENDLY UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Rochelle Endly declare as follows
1 I am the E-Business Manager for Turner New Zealand in Newport
Beach California I have personal first-hand knowledge of the
following facts and if called upon to testify as set forth below
could and would competently do so
2 In December of 1996 I was involved in a series of telephone
calls and face to face meetings with Peter Withers represented to me as
a past member of the New Zealand Board of Trade Those discussions
pertained to Peter Withers attempt to produce a television show
promoting various New Zealand products called Taste New Zealand
3 From my discussions with Peter Withers I learned that he was
unable to garner enough sponsors to produce the television show
4 Thereafter in February of 1997 I was again in contact with
Peter Withers about a new business promotion venture entitled Naturally
New Zealand
5 On or about March 25 1997 our office received a letter
addressed to my boss Noel Turner from Richard Osborne concerning the
Naturally New Zealand program
6 During the course of a face to face meeting in our company
offices located in Newport Beach California Peter withers was asked by
my boss Noel Turner if this new marketing program using the Naturally
New Zealand name was associated with Melanie Merrys company In
response Peter withers stated words to the effect of
I know Melanie Merry and am aware that she has been using that name
Ive worked it all out with her and it will be fine
IIIII
1
I
5
10
15
20
25
1
2
3
4
6
7
7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
9
11
12
13
14
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21
22
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
1
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7
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5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
5
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25
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21
22
23
24
DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
1
28
5
10
15
20
25
1
2
3
4
6
7
7 While I do not remember Peter withers words verbatim he went
on to state that the use of the Naturally New Zealand name would not
be an issue and it was something that Turner New Zealand should not be
concerned about
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this
declaration was executed on October 2 f( 1998 at Newport Beach
8 California
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
1
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
27
28
5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
5
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25
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2
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4
6
7
8
9
11
12
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14
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1
21
22
23
24
DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
1
28
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3
4
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6
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DECLARATION OF DONALD E BOSS UNDER PENALTY OF PERJURY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
I Donald E Boss declare as follows
1 I am an attorney at law duly licensed to practice before all
courts of the State of California and am one of the attorneys of record
for Plaintiff I have personal first-hand knowledge of the following
facts and if called upon to testify as set forth below I could and
would competently do so
2 Plaintiff Naturally New Zealand Products Inc through its
President Melanie Merry came to see me about this matter in late
September of 1997 Shortly thereafter I drafted and served the Cease
and Desist letter which has previously been attached to this motion as
Exhibit C
3 In response to the service of my letter I received a written
letter from Paul Velasco represented to me as the attorney for Peter
withers and others involved in the Naturally New Zealand program
Thereafter my office and Paul Velasco attempted to resolve this matter
by means of a licensing agreement from my client to Defendants These
negotiations lasted from last year until approximately the middle of
this year Ultimately however 1 the negotiations fell through when Paul
Velascos client(s) would not agree to our terms since it would prevent
them from sourcing product under the Naturally New Zealand name
4 Subsequently Melanie Merry authorized this action and motion
for a preliminary judgment During the course of my discovery I
purchased the Annies New Zealand Ice Cream at a Whole Foods Market
store in Glendale A true and correct copy of a portion of the package
has been attached hereto and incorporated herein by this reference as
Exhibit F
1
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
27
28
5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
5
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15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
1
21
22
23
24
DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
1
28
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
13
14
16
17
18
19
21
22
23
24
27
28
5 The court will note that the portion of the label which has
been copied and submitted for the courts attention references that a
Trade Name registration has been obtained with the united states Patent
Office
6 Thereafter I retained the services of Edward Ansell a Patent
and Trademark attorney in Claremont California to run a search on the
use of the name Naturally New Zealand A true and correct copy of
those results are attached hereto as Exhibit Gil and are incorporated
herein by this reference
7 The court will note that the United states Patent Office has
not granted rights to use the name Naturally New Zealand despite
Defendants representations as such on its package
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct and that this l-shy
declaration was executed on November 1998 at Covina
California
ampr2~ Donald E Boss
2
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
5
10
15
20
25
1
2
3
4
6
7
8
9
11
12
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1
21
22
23
24
DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
1
28
908 S ViI Oaks Drived j Z-- Covina
[X] ATTOR~5~ CA 91724
J~~~~f~ ASSIGNEE OF RECORD
BY F HDAM-ZAMIRI
NAME OF COURT SUPERIOR COURT OF CALIFOR STREET ADDRESS 300 East Walnut R SUS80NLY
MAILING ADDRESS Same CASE NUMBER
CITY AND ZIP CODE Pasadena CA 91101 EC 025846 BRANCH NAME North Central District
PLAINTIFF Naturally New Zealand Products Inc a FOR COURT USE ONLY
California corporation DEFENDANT The Kines Syndicate an unknown business entit and Market-Interface a California Limited ~a ~ ~ y A~pEitfA OR1=OR AND RENEWAL OF JUDGMENT
~ ERFILulJEJ-190 LeS ANGELES SUPERIOR COURTATTORNEY OR PARTY WITHOUT ATTORNEY (Nlilme and Address) TEL NO
Recording requested by and return to ( 62 6 ) 9 66- 92 31 -DONALD E BOSS [SBN 145551] WOV 82006
ATTORNEY AT LAW J08N ~r-rirlC CLERK
Judgment creditor Assignee of record applies for renewal of the judgment as follows
1 Applicant (name and address) Naturally New Zealand Products Inc 20120 Paseo Del Prado Suite F Walnut California 91789
2 Judgment debtor (name and last known address) The Kinesis Syndicate1111 Stradella Road Los Angeles California 90079 and L-________________________~
Market Interface LLC 111 Stradella Road Los Angeles California 90079
3 Original judgment a Case number (specify) EC025846 b Entered on (date) Ju1 y 29 1999 c Recorded
(1) Date October 17 2006 (2) County Los Angeles (3) Instrument No 06-2309820
4 Judgment previously renewed (specify each case number and date)
5 Renewal of money judgment
a Total judgment bull bull bull bull bull bull bull $ 25047800 b Costs after judgment bullbullbullbullbullbullbullbullbullbullbullbullbull $ c Subtotal (add a and b) bullbullbull $ 25047800 d Credits after judgment bullbull $ e Subtotal (subtract d from c) bull $ 25047800 f Interest after judgment bullbullbullbull $ 18163714 g Fee for filing renewal application bullbull $ 2000 h Total renewed judgment (add e f and g) $
i The amounts called for in items a - h are different for each debtor These amounts are stated for each debtor on Attachment 5
Page 1 of2
Form Approved for Optional Use APPLICATION FOR AND RENEWAL OF JUDGMENT Leqal CodeofCivll Procedure sect683140Judicial Council of California EJ190 [Rev January 1 2002) Solutignsshy
~P1us
SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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SHORT TITLE Naturally New Zealand v Syndicate
The Kinesis CASE NUMBER
EC 025846
6 ex-] Renewal of judgment for possession Dsale
a D( I If judgment was not previously renewed terms of judgment as entered That Naturally New Zealand Products Inc shall recover from the
Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
b If judgment was previously renewed terms of judgment as last renewed
c Dn Terms of judgment remaining unsatisfied
That Naturally New Zealand Products Inc shall recover from the Kinesis Syndicate and Market Interface LLC jointly and severally monetary damages in the amount of One Dollar ($100) and costs of suit in the amount of Four Hundred Seventy-Seven Dollars ($47700) and punitive damages in the amount of Two Hundred Fifty Thousand Dollars ($25000000)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date November 10 2006
DONALD E BOSS (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
EJ-190 [Rev January 1 2002] APPLICATION FOR AND RENEWAL OF JUDGMENT Page 2 of2
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
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DECLARATION REGARDING CALCULATION OF INTEREST
I Donald E Boss declare as follows
1 That I am an attorney duly licensed to practice before all courts in the State of
California am the attorney for Naturally New Zealand Products Inc the Plaintiff and
now the Judgment Creditor That I have personal first-hand knowledge of the events
described below and that if called upon to testify to same that I could and would competently
do so
2 The current amount due under the Judgment for principal and interest has been
calculated as follows
7-29-99 Judgment Amount
10-31-06 Payments Made
Remaining Balance Owed
Additional Interest at $6862 per day to 72906
($25047800 x 10365 = $6862 day x 2555 days (7 years x 365 days)
Interest from 72906 to 103106 ($6862 per day x 92 days)
Total Interest Calculation since Judgment
Total Judgment + Interest ($25047800 + $18163714)
$25047800
($ 00000)
$25047800
$17532410
$ 631304
$18163714
$43211514
3 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on October 31
2006 at Covina California
6Uf~Donald E Boss
1
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