Tuesday, Sep 2, 2008    Text size: 

On Aug. 13, U.S. Magistrate Judge Bernard Zimmerman issued a one-page order to dismiss the case with prejudice. The order also said that any party may restore the suit to the calendar if the settlement had not been consummated.

Terms of the settlement weren't disclosed, but Vivid Entertainment spokeswoman Jackie Martin confirmed to XBIZ that an agreement had been reached.

Attorney Anthony Pagkas, who represented the San Jose nightclub, did not respond to XBIZ's requests for comment.

In July, a federal magistrate judge ordered a settlement conference when both parties appeared to be deadlocked in their dispute.

Vivid Entertainment — which was founded in 1984 — had claimed that the nightclub was infringing on the name it has used for film, Internet, mobile, retail and licensing for years. In 2005, Vivid Entertainment also granted a license with Las Vegas Venus Corp. for the operation of a Vivid nightclub at the Venetian Resort Hotel Casino in Las Vegas. The club closed in 2007.

The San Jose nightclub adopted the Vivid name last year as part of its revovation. The 22,000-square-foot club, which claims to “bring South Beach-style nightlife to the Bay Area,” is located in the middle of downtown San Jose and is one of the largest clubs in the region. It offers $250 bottle service and is “lavishly decadent,” according to its website.

About a month after the club was renamed, Vivid attorneys sent cease-and-desist letters demanding that owners of the club discontinue use of the name. According to the suit, the club's owners — a group of investors who incorporated the club as Diamond S.J. Enterprise — filed papers with the U.S. Patent and Trademark Office to grant them a registered trademark shortly after receiving the cease-and-desist letters.

In the suit, Vivid Entertainment claimed that the San Jose nightclub owners not only have borrowed its corporate signage and identity, but that club owners continue to operate VividSJ.com, exploiting its trademark despite a disclaimer on the website that it is not affiliated with Vivid Entertainment.