     Case: 12-20576       Document: 00512391565         Page: 1     Date Filed: 09/30/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 30, 2013
                                       No. 12-20576
                                                                           Lyle W. Cayce
                                                                                Clerk



THE SUNSHINE KIDS FOUNDATION,

                                                  Plaintiff–Appellee,

versus

SUNSHINE KIDS JUVENILE PRODUCTS, L.L.C.,
Now Known as Diono, L.L.C.,

                                                  Defendant–Appellant.




                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-2496




Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Diono, L.L.C. (“Diono”), previously known as Sunshine Kids Juvenile


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-20576     Document: 00512391565      Page: 2   Date Filed: 09/30/2013


                                  No. 12-20576

Products, L.L.C., appeals the denial of a motion to enforce its settlement agree-
ment with Sunshine Kids Foundation (“SKF”). Because the agreement expressly
excludes any release of Diono’s retailers, we affirm.


                                        I.
      SKF, a charitable organization dedicated to enriching the lives of children
with cancer, brought a trademark-infringement action against Diono, a manufac-
turer of car seats, in 2009. In September 2011, the parties executed a settlement
agreement and agreed to a stipulated permanent injunction providing that in
exchange for a release of liability for trademark infringement, Diono would cease
using the “Sunshine Kids” mark in connection with its seats after December 31,
2011. The agreement also stated that “[t]he Release contained in . . . this Settle-
ment Agreement shall not be construed to extend to the promotion or sale by any
of [Diono’s] customers or purchasers or purchasers of products that may bear the
SUNSHINE KIDS Marks.”
      In January 2012, SKF claims to have discovered that certain Diono retail-
ers were promoting and reselling Diono seats with the “Sunshine Kids” mark.
Soon thereafter, SKF sent letters demanding the cessation of that practice. In
response, Diono filed a post-judgment motion to enforce the settlement agree-
ment. The district court denied the motion, concluding that Diono’s retailers did
not have a right to use the “Sunshine Kids” mark to promote and resell the seats
under the First Sale Doctrine.


                                        II.
      Although the district court relied on the First Sale Doctrine in denying
Diono’s motion, we need not address whether the doctrine applies in this case
because a motion to enforce a settlement agreement cannot be granted to enforce



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                                        No. 12-20576

a term that is not included in the settlement at issue.1 Diono argues that in
authorizing the use of the “Sunshine Kids” mark in selling its car seats through
December 31, 2011, the agreement impliedly includes a term authorizing its
retailers’ use of the mark as well. Therefore, the argument continues, it is this
implied authorization that should be enforced.
       Even if the settlement-agreement release as originally written could be
construed as impliedly covering Diono’s retailers, however, that implication does
not survive the present, express language to the contrary.2 The settlement
agreement, according to its own terms, does not “extend [the release] to the pro-
motion or sale by any of [Diono’s] customers or purchasers of products that may
bear the SUNSHINE KIDS mark.” As a result, the agreement does not deny the
right of SKF to pursue a trademark infringement action against Diono’s retail-
ers, and it may not be enforced to that effect. Our decision should not be miscon-
strued to hold that Diono’s retailers do not have the right to use the “Sunshine
Kids” mark in promoting and reselling car seats sold by Diono through Decem-
ber 31, 2011—that question is not before us—but only that Diono cannot legally
enjoin SKF’s actions regarding Diono’s retailers via a motion to enforce the set-
tlement agreement.
       The order denying the motion to enforce settlement is AFFIRMED.




       1
          We may affirm for any reason supported by the record, even if not relied on by the
district court. LLEH, Inc. v. Wichita Cnty., Tex., 289 F.3d 358, 364 (5th Cir. 2002).
       2
         See Delta Seaboard Well Servs., Inc. v. Am. Int’l Specialty Lines Ins. Co., 602 F.3d 340,
343 (5th Cir. 2010) (“The plain language of a[ ] . . . contract[ ] must be given effect when the
parties’ intent may be discerned from the plain language.”).

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