Oxy-Health, LLC v. Diane Pechenick et al

Filing 56

JUDGMENT AND PERMANENT INJUNCTION filed by Judge Ronald S.W. Lew. I is hereby Ordered that: Jason Rose as an individual, Jason Rose doing business under afictitious business name, and any business that Jason Rose owns, in whole or inpart, directly or indirectly, including through any family member or acquaintance, and any business from which Jason Rose obtains or has the ability to obtain any financial benefit, directly or indirectly, and any business or person that Rose controls ("Rose&quo t;): a) shall not purchase or otherwise bid on any of Oxy's current trademarks or future registered trademarks or any marks confusingly similar to those trademarks, etc. The parties, and each of them, waive all rights in this matter to a trial, a trial by jury, any appeal, any and all legal or applicable defenses or remedieseach party may have in this action, a motion to vacate judgment, a motion for a new trial, a collateral attack on judgment, or any other rights or remedies that each pa rty may now have or at any time hereafter may have to attack the Stipulated Judgment. The Stipulated Judgment is a final, non-appealable Judgment and Order. Nothing in the Stipulated Judgment waives either party's right to bring an action against the other party for any future unlawful conduct. (Refer to attached document for details.) (lom)

1 2 3 4 5 6 7 8 9 10 11 OXY-HEALTH, LLC, a California limited liability company, 12 Plaintiff, 13 v. 14 JASON ROSE d/b/a HYPERBARIC 15 SUPPORT, an individual, 16 17 18 Defendant.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV09-3796 RSWL (SHx) JUDGMENT AND PERMANENT INJUNCTION

Plaintiff Oxy-Health, LLC ("Oxy") and defendant Jason Rose d/b/a

19 Hyperbaric Support having stipulated to the entry of this final judgment and 20 permanent injunction ("Stipulated Judgment"), 21 22 IT IS HEREBY ORDERED THAT: 1. Jason Rose as an individual, Jason Rose doing business under a

23 fictitious business name, and any business that Jason Rose owns, in whole or in 24 part, directly or indirectly, including through any family member or acquaintance, 25 and any business from which Jason Rose obtains or has the ability to obtain any 26 financial benefit, directly or indirectly, and any business or person that Rose 27 controls ("Rose"): 28
SD\704127.1

a)

shall not purchase or otherwise bid on any of Oxy's current

1 trademarks or future registered trademarks or any marks confusingly similar to 2 those trademarks, including variations or misspellings, as keywords for any 3 internet search engine and shall not use those marks on a website, in marketing 4 materials, or elsewhere; 5 b) unless expressly approved by the United States Food and Drug 6 Administration ("FDA") for soft hyperbaric chambers actually distributed by Rose, 7 Rose shall not advertise, market, distribute, promote, or sell, in any medium 8 whatsoever (including but not limited to through websites, YouTube, eBay, 9 Facebook, MySpace, and/or Twitter), or in any location around the world, any 10 modifications, upgrades, or kits that are intended to, or are able to, modify 11 hyperbaric chambers to increase the chamber's pressure beyond those levels 12 cleared by the FDA for the particular chambers distributed by Rose, and shall not 13 refer anyone to a third party for the purchase or rental of any such pressure upgrade 14 products or pressure upgrade services or otherwise suggest that a customer contact 15 a third party for the purchase or rental of any such pressure upgrade products or 16 pressure upgrade services; 17 c) shall not advertise, market, distribute, or otherwise promote, in 18 any medium whatsoever (including but not limited to through websites, YouTube, 19 eBay, Facebook, MySpace, and/or Twitter), or in any location around the world, 20 the use of hyperbaric chamber pressures higher than those cleared by the FDA for 21 soft hyperbaric chambers; 22 d) unless expressly approved by the FDA for soft hyperbaric 23 chambers actually distributed by Rose, Rose shall not advertise, market, distribute, 24 promote, or sell, in any medium whatsoever (including but not limited to through 25 websites, YouTube, eBay, Facebook, MySpace, and/or Twitter), or in any location 26 around the world, oxygen concentrators, and shall not refer anyone to a third party 27 for the purchase or rental of any such concentrator products or concentrator 28 services or otherwise suggest that a customer contact a third party for the purchase
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1 or rental of any such concentrator products or concentrator services; 2 e) shall not advertise, market, distribute, or other otherwise 3 promote, in any medium whatsoever (including but not limited to through 4 websites, YouTube, eBay, Facebook, MySpace, and/or Twitter), or in any location 5 around the world, hyperbaric chambers as treatments for any illness or disease for 6 which the FDA has not cleared that particular chamber (however branded), or 7 promote such hyperbaric chambers for use in athletic performance enhancement. 8 Notwithstanding the foregoing, Rose may orally refer customers who ask in an 9 unsolicited fashion about off-label uses of chambers to a licensed physician or 10 medical clinic for information pertaining to treatments; 11 f) shall not advertise, market, distribute, promote, or sell, in any 12 medium whatsoever (including but not limited to through websites, YouTube, 13 eBay, Facebook, MySpace, and/or Twitter), or in any location around the world, 14 hyperbaric chamber products using testimonials from anyone (including but not 15 limited to athletes and doctors) who did not actually use chamber products sold by 16 Rose. Notwithstanding the foregoing, Rose may orally respond in a truthful 17 fashion to customers who ask in an unsolicited fashion about celebrities who use 18 hyperbaric chambers; 19 g) shall not advertise, market, distribute, or other otherwise 20 promote, in any medium whatsoever (including but not limited to through 21 websites, YouTube, eBay, Facebook, MySpace, and/or Twitter), or in any location 22 around the world, hyperbaric chamber products in comparison to any Oxy chamber 23 products or Oxy itself. Notwithstanding the foregoing, Rose may orally respond in 24 a truthful fashion to customers who ask in an unsolicited fashion about Oxy's 25 chambers, provided that this oral response does not violate subsection (h) below; 26 h) shall not advertise, market, distribute, or other otherwise 27 promote, in any medium whatsoever (including but not limited to through 28 websites, YouTube, eBay, Facebook, MySpace, and/or Twitter), or in any location
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1 around the world, any statements that are untrue, not based on verifiable fact, or 2 that criticize Oxy's products or Oxy's reputation; 3 i) shall not sell or participate in any manner in the sale of any 4 hyperbaric chamber products in the United States unless such sale is specifically 5 authorized by a valid prescription issued by a duly licensed physician; and 6 j) shall permanently shut down all internet blogs, chat rooms, 7 discussion forums, and list serves relating in any way to hyperbaric chamber 8 products that are currently under his control. 9 11 2. 3. Oxy's non-enforcement of any of the terms of the Stipulated The parties, and each of them, waive all rights in this matter to a trial, 10 Judgment shall not waive Oxy's right to future enforcement of its terms. 12 a trial by jury, any appeal, any and all legal or applicable defenses or remedies 13 each party may have in this action, a motion to vacate judgment, a motion for a 14 new trial, a collateral attack on judgment, or any other rights or remedies that each 15 party may now have or at any time hereafter may have to attack the Stipulated 16 Judgment. The Stipulated Judgment is a final, non-appealable Judgment and 17 Order. 18 20 21 22 Dated: June 25, 2010 23 24 25 26 27 28
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4.

Nothing in the Stipulated Judgment waives either party's right to

19 bring an action against the other party for any future unlawful conduct. IT IS SO ORDERED.

RONALD S.W. LEW Senior, U.S. District Court Judge

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