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Exhibit 10.22
BLUE DIAMOND
&
DIAMOND OF
CALIFORNIA
TRADEMARK
AGREEMENT
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BLUE DIAMOND/DIAMOND OF CALIFORNIA TRADEMARK AGREEMENT
THIS
AGREEMENT is made effective as of the 1st day of July, 2002 by
and
between CALIFORNIA ALMOND
GROWERS EXCHANGE, a California agricultural
cooperative corporation of
Sacramento, California doing business as BLUE DIAMOND
GROWERS ("Blue Diamond"), and
DIAMOND WALNUT GROWERS, INC., a California
agricultural cooperative
corporation of Stockton, California doing business as
DIAMOND OF CALIFORNIA
("Diamond of California").
RECITALS
A. Blue
Diamond and Diamond of California previously entered into
an
agreement dated September 9,
1998 (the "1998 Agreement") with respect to the use
and registration of their
respective trademarks throughout the world for the
purpose of avoiding confusion
between , their respective trademarks. By
amendment to the 1998
Agreement dated August 1, 2001, the parties agreed to
extend the termination date
of the 1998 Agreement from September 8, 2001 until
June 30, 2002.
B. Blue
Diamond and Diamond of California desire to enter into a
new
Agreement with respect to the
use and registration of their respective
trademarks for the primary
and ongoing purpose of avoiding confusion between
their respective trademarks
and for the further purpose of providing for certain
additional uses by the
parties of their trademarks not permitted under the 1998
Agreement for a ten (10) year
term without prejudice to their existing trademark
rights with respect to each
other.
AGREEMENT
NOW,
THEREFORE, the parties agree as follows:
1.
Definitions.
As used in
this Agreement, the following terms shall have the
following
meanings:
(a) The
term "BLUE DIAMOND marks" shall mean the word mark BLUE
DIAMOND
and the marks shown in United
States Registration Nos. 141,883; 159,301;
855,648; 873,150; 1,271,726;
1,308,186; 1,371,549; 1,831,464; 1,838,037;
2,001,151; and 2,018,640, all
owned by Blue Diamond.
(b) The
term "DIAMOND marks" shall mean the word marks DIAMOND, DIAMOND
OF
CALIFORNIA, DIAMOND WALNUT
KITCHENS and the marks shown in United States
Registration Nos. 130,162;
511,213; 724,880; 1,299,723; 1,299,727; 1,365,849;
1,801,304; and 1,890,026, all
owned by Diamond of California.
(c) The
term "raw" with reference to nuts, whether shelled or
inshell,
shall mean nuts which are
neither roasted nor seasoned.
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2. Registration of
Trademarks.
(a) Blue
Diamond may register its BLUE DIAMOND marks throughout the
world
for all types of nuts, for
products in which nuts are the principal ingredient
and for services relating
thereto.
(b)
Diamond of California my register its DIAMOND marks throughout
the
world for all types of nuts,
for products in which nuts are the principal
ingredient and for services
relating thereto.
3. Blue Diamond Use of
Trademarks.
(a) Except
as provided in sections 3(b) through 3(e), inclusive,
below,
Blue Diamond may use its BLUE
DIAMOND marks throughout the world for all types
of nuts, for products in
which nuts are the principal ingredient and for
services relating
thereto.
(b) Blue
Diamond may not use its BLUE DIAMOND marks anywhere in the
world
for walnuts, for products in
which walnuts are the principal ingredient or for
services relating thereto
except as provided in section 3(c) below; provided any
such use of its BLUE DIAMOND
marks as permitted under section 3(c) shall be
subject to the licensing
provisions of section 3(d) below.
(c)
Subject to the licensing provisions of section 3(d) below,
Blue
Diamond may use its BLUE
DIAMOND marks anywhere in the world for the following:
(i) Roasted and/or seasoned walnuts
(d) Blue
Diamond acknowledges and agrees that Diamond of
California's
DIAMOND marks have long been
identified with walnuts and products in which
walnuts are the principal
ingredient and, except as permitted under this
Agreement, Diamond of
California would oppose and could prevent any use by
Blue
Diamond of its BLUE DIAMOND
marks on walnuts, products in which walnuts are the
principal Ingredient and
services relating thereto. Accordingly, Blue Diamond
acknowledges and agrees any
such permitted use by it of its BLUE DIAMOND marks
hereunder with respect to
walnuts, products in which walnuts are the principal
ingredient and services
relating thereto, shall be equivalent to that of a user
under a nonexclusive,
nontransferable license granted to Blue Diamond by
Diamond
of California for the limited
purpose of this Agreement Blue Diamond agrees that
it will not challenge in any
manner the validity of the provisions of this
section 3(d) and Diamond of
California's right to preclude Blue Diamond from the
use of its BLUE DIAMOND marks
on such products except under license from Diamond
of California as provided in
this section 3(d).
(e)
Notwithstanding anything in the foregoing to the contrary,
Blue
Diamond shall not use its
BLUE DIAMOND marks anywhere in the world for the
following:
(i) Raw inshell nuts except almonds and hazelnuts in packages
or
containers consisting solely
of almonds or solely of hazelnuts; and
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(ii) Raw shelled nuts except almonds, hazelnuts and macadamia
nuts
in packages or containers
consisting solely of almonds, or solely of hazelnuts
or solely of macadamia
nuts.
4. Diamond of California
Use of Trademark.
(a) Except
as provided in sections 4(b) through 4(e), inclusive,
below,
Diamond of California may use
its DIAMOND marks throughout the world for all
types of nuts, for products
in which nuts are the principal ingredient and for
services relating
thereto.
(b)
Diamond of California may not use its DIAMOND marks anywhere in
the
world for almonds, for
products in which almonds are the principal ingredient
or
for services relating thereto
except as provided in section 4(c) below; provided
any such use of its DIAMOND
marks as permitted under section 4(c) shall be
subject to the licensing
provisions of section 4(d) below.
(c)
Subject to the licensing provisions of section 4(d) below, Diamond
of
California may use its
DIAMOND marks anywhere in the world for the following:
(i) Raw shelled almonds in packages or containers of three pounds
(3
lbs.) or less; and
(ii) Raw inshell Peerless variety almonds, unless the sources
of
supply of the Peerless
variety are not sufficient to meet the commercial
requirements of Diamond of
California, in which event it may use its DIAMOND
marks on such other varieties
of raw inshell almonds as Blue Diamond shall
approve.
(d)
Diamond of California acknowledges and agrees as
follows:
(i) Diamond of California acknowledges and agrees that the
parties
do not intend that Diamond of
California use the DIAMOND marks on raw shelled
almonds intended to be eaten
as a snack. Accordingly, Diamond of California
shall use commercially
reasonable efforts to prevent such use.
(ii) Diamond of California acknowledges and agrees that
Blue
Diamond's BLUE DIAMOND marks
have long been identified with almonds and products
in which almonds are the
principal ingredient and, excep
