CAFC Narrowly Construes Another Consent Judgment

In Mark Thatcher, et al. v. Kohl's Department Stores, Inc., et al. (Fed. Cir. February 10, 2005), the court narrowly construed another consent judgment, this time excluding successors in interest:

There is nothing expressly set out in the consent judgment between Thatcher and Kohl’s extending Thatcher’s rights to any third party, including any "successor-in-interest." This silence is the functional equivalent of the parties’ express intent to exclude language of assignment. Equally as telling is that the consent judgment specifies successors and assigns when listing Kohl’s obligations. It provides that it is enforceable against "Defendant corporations, their servants, employees, successors-in-interest, subsidiaries and all persons acting under, in concert with, or for them. . . ." When the inclusion of these provisions is contrasted with the absence of any provision permitting anyone other than Thatcher to enforce his rights under the consent judgment, the absence becomes profound. Indeed, around the same time Thatcher sued Kohl’s, he also sued Wal-Mart for allegedly infringing the same trade dress. In settling that case, Thatcher and Wal-Mart both bound their "successors and assigns." Thatcher and Deckers must live with the consequence of failing to include similar language of assignability here.