Zeltiq Aesthetics Inc v. Brown Health Relaxation Station LLC et al
ORDER signed by Judge Rudolph T. Randa on 8/1/2013. 12 MOTION for Default Judgment GRANTED to extent that Defendants are jointly and severally liable for willful federal trademark infringement in violation of 15 U.S.C. §1114; Defendants are jo intly and severally liable for false advertising and false designation of origin in violation of 15 U.S.C. §1125(a)(1)(B); Defendants are jointly and severally liable for infringement and unfair competition in violation of 15 U.S.C. §1125(a)(1)(A). Evidentiary Hearing set for 8/28/2013 at 2:30 PM in Courtroom 320, 517 E. Wisconsin Ave., Milwaukee, WI 53202 before Judge Rudolph T Randa. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ZELTIQ AESTHETICS, INC.
Case No. 13-C-575
BROWN HEALTH RELAXATION,
STATION LLC, NOVELLE WEIGHT
LOSS CENTERS, and MEREDITH
DECISION AND ORDER
This matter is before the Court on the default judgment motion (ECF No. 12)
filed by the Plaintiff, Zeltiq Aesthetics, Inc. (“Zeltiq”), against the Defendants Brown
Health Relaxation Station LLC, Novelle Weight Loss Centers, and Meredith Brown
(collectively the “Defendants”).
Zeltiq, a medical technology company that owns and/or is the exclusive
licensee of the technology for Cryolipolysis®, a non-invasive, patented, clinically
proven procedure involving freezing fat cells without damage to the skin, which it
markets under the registered trademarks of Zeltiq® and CoolSculpting®, filed a
proposed order for default judgment. The proposed order includes findings that the
Defendants are liable for federal trademark infringement, false advertising and false
designation of origin, and infringement and unfair completion in violation of Lanham
Act, 15 U.S.C. §§ 1114 and 1125(a)(1)(A) & (B), as alleged in the Complaint; enjoins
them from future conduct with respect to Zeltiq’s trademarks; and awards Zeltiq
$18,262.77 in attorney’s fees and expenses.
Having previously obtained entry of default by the Clerk of Court on July
19, 2013, Zeltiq’s action is in the proper procedural posture for a default judgment
motion. See Fed. R. Civ. P. 55(a) & 55(b)(2). Default judgment establishes, as a
matter of law, that the Defendants are liable to Zeltiq for the causes of action alleged
in the Complaint. See e360 Insight v. The Spamhaus Project, 500 F.3d 594, 602 (7th
Cir. 2007) (citing United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1989)).
Default judgment as to the Defendants’ joint and several liability with respect to their
violations of the Lanham Act as set forth in the Complaint is granted.
However, a default judgment does not answer whether a particular remedy is
appropriate. Id. (quoting Di Mucci, 879 F.2d at 1497 (“Because . . . liability was
established by default, the law in this circuit indicates that in a case such as this, an
evidentiary hearing may be required to establish what type of relief is necessary.”)
The appeals court stated, “[t]his principle applies with equal if not greater force in
the context of equitable relief, for which the law imposes a requirement that the party
seeking the injunction demonstrate the inadequacy of legal relief.” Id. (quoting
Walgreen Co. v. Sara Creek Property Co., B.V., 966 F.2d 273, 275 (7th Cir. 1992))
(“The plaintiff who seeks an injunction has the burden of persuasion—damages are
the norm, so the plaintiff must show why his case is abnormal. . . . [W]hen, as in this
case, the issue is whether to grant a permanent injunction . . . the burden is to show
that damages are inadequate. . . .”).
Based on the foregoing, an evidentiary hearing must be conducted on Zeltiq’s
request for permanent injunctive relief. Counsel’s attention is also directed to Rule
65(d), which provides the requirements for all orders granting injunctions. Since
Zeltiq may incur additional attorney’s fees and costs, the Court will also defer
deciding that portion of Zeltiq’s motion until a later date.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
Zeltiq’s motion for default judgment (ECF No. 12) is GRANTED to the extent
the Court finds:
(1) The Defendants are jointly and severally liable to Zeltiq for willful
federal trademark infringement in violation of the Lanham Act, 15
U.S.C. § 1114;
(2) The Defendants are jointly and severally liable to Zeltiq for false
advertising and false designation of origin in violation of the Lanham
Act, 15 U.S.C. § 1125(a)(1)(B); and
(3) The Defendants are jointly and severally liable to Zeltiq for
infringement and unfair competition in violation of the Lanham Act, 15
U.S.C. § 1125(a)(1)(A); and
The Court will conduct an evidentiary hearing on August 28, 2013, at 2:30
p.m. in Courtroom 320, at the Federal Courthouse, 517 East Wisconsin Avenue,
Milwaukee, Wisconsin, at which Zeltiq must present testimony and evidence
regarding its request for injunctive relief, and may also present testimony and evidence
regarding any request for additional attorney’s fees and expenses.
Dated at Milwaukee, Wisconsin, this 1st day of August, 2013.
BY THE COURT:
HON. RUDOLPH T. RANDA
U.S. District Judge