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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
