Zeltiq Aesthetics Inc v. Brown Health Relaxation Station LLC et al

Filing 28

ORDER GRANTING PERMANENT INJUNCTION signed by Judge Rudolph T. Randa on 5/6/2014. See Order for injunction details. By 6/3/2014 Defendants MUST surrender accused device to Plaintiff's counsel for inspection, analysis, and/or destruction. Plainti ff AWARDED against Defendants jointly and severally $26,008 in attorney fees with pre-judgment interest at prime rate beginning 30 days from date of billing(s) to date of judgment, and costs of $904. By 6/3/2014 Plaintiff to file document indicating date(s) billed for legal services in this action and calculating amount of pre-judgment interest consisten with this Order. (cc: all counsel, via US mail to Meredith Brown)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ZELTIQ AESTHETICS, INC.,
Plaintiff,
v.

Case No. 13-C-575

BROWN HEALTH RELAXATION
STATION LLC, NOUVELLE
WEIGHT LOSS CENTERS, and
MEREDITH BROWN,
Defendants.

DECISION AND ORDER
In our society, the quest for an ―ideal‖ physique is a continuing pursuit. The
focus of this action is a device and non-invasive procedure for strategically reducing
fat bulges by freezing fat cells without damage to the skin.
Plaintiff Zeltiq Aesthetics, Inc.‘s (―Zeltiq‖), a medical device company, is the
exclusive owner or licensee of the technology underlying the process known as
Cryolipolysis® — a patented and clinically proven procedure. Zeltiq filed this action
against Brown Health Relaxation Station LLC (―Relaxation‖), Nouvelle Weight Loss
Centers (―Nouvelle‖), and Meredith Brown (―Brown‖) (collectively the ―Defendants‖)
claiming trademark infringement, false advertising, false designation of origin and
unfair competition under the Lanham Act, 15 U.S.C. §§ 1051 et seq., arising from the
Defendants‘ conduct with an infringing device and procedure.
The Court has subject matter jurisdiction over the action pursuant to 28 U.S.C.

§§ 1331 and 1338. Venue in this District is proper pursuant to 28 U.S.C. § 1391(b).
On August 1, 2013, this Court granted Zeltiq‘s motion for default judgment
finding that the Defendants are jointly and severally liable to Zeltiq for (1) willful
federal trademark infringement in violation of the Lanham Act, 15 U.S.C. § 1114; (2)
false advertising and false designation of origin in violation of the Lanham Act, 15
U.S.C. § 1125(a)(1)(B); and (3) infringement and unfair competition in violation of the
Lanham Act, 15 U.S.C. § 1125(a)(1)(A). (ECF No. 16.) However, the Court found
Zeltiq had not established that a permanent injunction should issue, deferred the
request for attorney fees and costs for later determination, and set a date for an
evidentiary hearing.
Subsequently, Zeltiq filed a motion, accompanied by affidavits and
documentary evidence, requesting that in lieu of live testimony the Court consider
those accompanying documents as establishing the basis for the requested injunction.
(ECF No. 17.) The motion was granted. (ECF No. 24.)
This Decision and Order addresses Zeltiq‘s request for default judgment
granting permanent injunctive relief, an award of attorney fees and costs, and
prejudgment and post-judgment interest. Having considered the affidavits and other
evidence on file, the Court finds that Zeltiq has submitted sufficient documentary
evidence to support its requests for relief so that, with the exception of calculating the
amount of pre-judgment interest on the attorney fee award, the outstanding issues may
be resolved. See Dexia Credit Local v. Rogan, 602 F.3d 879, 884 (7th Cir. 2010)
-2-

(holding that a court need not conduct an evidentiary hearing on an injunction unless
one is necessary because of an issue of fact created by response). Accordingly, the
Court enters the following findings of fact, conclusions of law in support of the entry
of the permanent injunction, and an award of attorney fees and costs, and pre-judgment
interest on the attorney fees. However, as will be further explained, entry of final
judgment will await Zeltiq‘s filing of its calculation of the proper amount of
prejudgment interest.
FINDINGS OF FACT
Zeltiq is 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. Zeltiq
markets the device and procedure under two registered trademarks: Zeltiq® and
CoolSculpting®.
Zeltiq‘s CoolSculpting® device and procedure have been cleared by the United
States Food and Drug Administration (―FDA‖) for the provision of Cryolipolysis®
services to the flank and abdomen. Zeltiq is the only entity in the United States that
has obtained FDA clearance to offer such a device and procedure. Zeltiq markets its
device and licenses its intellectual property to licensed physician providers who offer
cosmetic medical procedures. The cost of an authentic CoolSculpting® device is
about $95,000 and licensed medical providers generally charge more than $1,000 for a
single session.
-3-

Zeltiq‘s CoolSculpting® procedure has grown in popularity, and that growth
has brought an increasing proliferation of knock-off devices available for sale via the
internet. Zeltiq has confirmed that most of those knock-off devices infringe the patents
owned by or exclusively licensed to Zeltiq.
The Defendants operate facilities that offer spa services such as massages,
waxing, and facials, and weight loss services such as dietary pharmaceuticals and
weight loss counseling, which they advertise through web sites located at
http://www.relaxation-station.com and http://www.nouvellediet.com. (Compl. ¶ 21.)
(ECF No. 1.) Relaxation, Nouvelle, and Brown have advertised, marketed, and sold
treatments under the confusingly similar designation ―Freeze Sculpting,‖ which they
have promoted by claiming and/or suggesting is the same as or functionally equivalent
to Zeltiq‘s CoolSculpting® Cryolipolysis® device and treatment. The Defendants‘
―Freeze Sculpting‖ device and treatments are not affiliated with, sponsored by, or
approved of by Zeltiq, nor are their device and services the equivalent of Zeltiq‘s
patented,

FDA

approved,

clinically

proven

CoolSculpting®

Cryolipolysis®

treatments.
In November 2012, and April 2013, Zeltiq communicated with the Defendants
in an attempt to persuade them to cease their conduct without resort to legal action.
(Aff. Support Inj. ¶¶ 15, 17, 19-20.) (ECF No. 18.) Consumer confusion has occurred
among members of the public who are confused, mistaken, or believe that the
purported ―Freeze Sculpting‖ services offered by the Defendants are the same as or are
-4-

affiliated with, approved of, or sponsored by Zeltiq. (See id. at ¶¶ 13-14, 18.) Zeltiq
filed this action on May 23, 2013, after its attempts to informally resolve the issues
were unsuccessful.
Wisconsin Circuit Court Records disclose unsatisfied judgments against Brown
and her affiliated companies, and Brown personally. (See id. at ¶ 24, Ex. O.) (ECF No.
18-15.) In 2011, a bankruptcy action filed in this District by Brown was dismissed
based on that court‘s finding that she had engaged in ―a scheme‖ to delay or hinder a
creditor involved in an eviction proceeding. (See id. at ¶ 25, Ex. P.) (ECF No. 18-16.)
CONCLUSIONS OF LAW
The Lanham Act specifically provides for the granting of injunctive relief,
stating that a district court ―shall have power to grant injunctions, according to the
principles of equity and upon such terms as the court may deem reasonable, to prevent
the violation of any right of the registrant of a mark registered in the Patent and
Trademark Office or to prevent a violation under subsection (a), (c), or (d) of section
1125 of this title.‖ 15 U.S .C. § 1116(a). An injunction may issue only upon a
showing that: (1) the plaintiff has suffered irreparable harm; (2) monetary damages
are inadequate to remedy the injury; (3) an equitable remedy is warranted based on
the balance of hardships between the plaintiff and defendants; and (4) the public
interest would be well served by the injunction. See eBay Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 391 (2006); Kartman v. State Farm Mut. Auto. Ins. Co., 634
F.3d 883, 892 (7th Cir. 2011) (citing eBay, 547 U.S. at 391; Dan B. Dobbs, Dobbs
-5-

Law of Remedies § 2.9 (2d ed. 1993)).
The third part of the test — the balance of hardships — takes on heightened
importance when the plaintiff requests a ―mandatory injunction,‖ that is, an injunction
requiring the defendant to perform an affirmative act. Kartman, 634 F.3d at 892
(citing Dobbs, supra § 2.9). A mandatory injunction imposes significant burdens on a
defendant and requires careful consideration of the intrusiveness of the ordered act, as
well as the difficulties that may be encountered in supervising the enjoined party‘s
compliance with the court‘s order. Id.
Irreparable Harm
To show irreparable harm, Zeltiq must establish that any injuries or losses it
will suffer from the denial of an order enjoining the Defendants from marketing,
promoting, or selling the Freeze Sculpting device and treatment cannot be
compensated in money damages. The court of appeals for this circuit has stated ―it is
well settled that injuries arising from Lanham Act violations are presumed to be
irreparable, even if the plaintiff fails to demonstrate a business loss.‖ Promatek Indus.,
Ltd. v. Equitrac Corp., 300 F.3d 808, 813 (7th Cir. 2002).1 While that presumption
may no longer be valid, the difficulty in assessing the damages associated with the

1

The Supreme Court‘s subsequent decision in eBay Inc., 547 U.S. at 392-93, made clear that there is
no such presumption for patent infringement. Flava Works, Inc. v. Gunter, 689 F.3d 754, 755 (7th Cir. 2012)
held that, although eBay was a case about patents rather than copyrights and about permanent rather than
preliminary injunctions, it was persuaded by Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989,
995–96, 998 (9th Cir. 2011), and Salinger v. Colting, 607 F.3d 68, 82 (2d Cir. 2010), that eBay governs a
motion for a preliminary injunction in a copyright case, as well. 689 F.3d at 755 (citing Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 22-24, 129 S.Ct. 365 (2008)).

-6-

harm to Zeltiq‘s reputation and loss of goodwill supports a finding that Zeltiq has
sustained irreparable harm. See id.
Inadequate Legal Remedies
Legal remedies are inadequate because monetary damages are impossible to
quantify and inadequate to compensate Zeltiq for the damage to its reputation and
goodwill associated with its intellectual property as a consequence of the Defendants‘
ongoing illegal actions.

In addition, based on court records2 showing multiple

unsatisfied judgments against Brown and affiliated companies, it is unlikely that any
monetary judgment entered against the Defendants will be satisfied.
Balance of Hardships
The ―balance of hardships‖ assesses the relative effect of granting or denying
an injunction on the parties. eBay, 547 U.S. at 391. Here, the requested injunctive
relief will not create an undue hardship for the Defendants because their facilities
offer numerous other services that would not be covered under the scope of the
requested injunction. Without injunctive relief, Zeltiq has sustained and will continue
to sustain diminution in value of its intellectual property and reputation as the
exclusive licensee of the underlying technology and the only party to be cleared by the
FDA for the procedure. Zeltiq will also be injured because it cannot exercise quality

2

Rule 201 of the Federal Rules of Evidence allows the Court to take judicial notice of documents in
the public record. See Virnich v. Vorwald, 664 F.3d 206, 209 (7th Cir. 2011).

-7-

control over the Defendants‘ treatments. The balance of hardships favors Zeltiq.
Public Interest
The ―public interest‖ includes any effects that granting or denying the
injunction would have on nonparties. The public interest is supported by granting the
injunction because it will protect patients who erroneously believe they are receiving a
treatment from a patented medical device that has been clinically proven and FDA
approved, which is false with respect to the product and treatment offered by the
Defendants. Injunctive relief is also in the public interest because the public may be
physically injured by the performance of services using a medical device which has
not been subject to any regulatory oversight.
Physicians who purchase Zeltiq‘s CoolSculpting® Cryolipolysis® and
properly offer the associated medical services will also be protected from the
Defendants‘ improper underselling of a similar but non-patented, non-FDA approved
product which has not undergone clinical testing. Granting the injunction also furthers
the purposes of federal trademark law and, to that extent, fulfills the public interest.
The nature of the injunction that Zeltiq requests poses very little if any risk to the
public — it limits the public‘s access to alternative non-invasive procedures involving
freezing fat cells. However, for most persons the strategic reduction of fat deposits is
cosmetic and non-essential compared to other life-saving or life-prolonging medical
procedures. The public interest favors injunctive relief.
Turnover and Destruction
-8-

Zeltiq‘s proposed injunction includes a provision requiring the Defendants to
surrender the accused device to Zeltiq‘s counsel for inspection, analysis, and/or
destruction. Authority for such relief is provided by 15 U.S. C. § 1118.3 When a
court has entered a permanent injunction against the defendants it may decline to
enter such an order as unnecessary. See Breaking the Chain Found., Inc. v. Capitol
Educ. Support, Inc., 589 F. Supp. 2d 25, 33 (D.D.C. 2008). However, given the
Defendants‘ complete failure to participate in this litigation, the Court will order the
Defendants to surrender the accused device to Zeltiq for inspection, analysis and/or
destruction. See e.g., Sub-Zero, Inc. v. Sub Zero NY Refrigeration & Appliances
Servs., Inc., 13-CV-2548 KMW JLC, 2014 WL 1303434, at *7 (S.D.N.Y. Apr. 1,
2014). Therefore, the turnover and destruction provision will be included in the

3

Section 1118 provides that:
In any action arising under this chapter, in which a violation of any right of
the registrant of a mark registered in the Patent and Trademark Office, a
violation under section 1125(a) of this title, or a willful violation under
section 1125(c) of this title, shall have been established, the court may order
that all labels, signs, prints, packages, wrappers, receptacles, and
advertisements in the possession of the defendant, bearing the registered
mark or, in the case of a violation of section 1125(a) of this title or a willful
violation under section 1125(c) of this title, the word, term, name, symbol,
device, combination thereof, designation, description, or representation that
is the subject of the violation, or any reproduction, counterfeit, copy, or
colorable imitation thereof, and all plates, molds, matrices, and other means
of making the same, shall be delivered up and destroyed. The party seeking
an order under this section for destruction of articles seized under section
1116(d) of this title shall give ten days' notice to the United States attorney
for the judicial district in which such order is sought (unless good cause is
shown for lesser notice) and such United States attorney may, if such
destruction may affect evidence of an offense against the United States,
seek a hearing on such destruction or participate in any hearing otherwise to
be held with respect to such destruction.

15 U.S.C. § 1118.

-9-

injunction.
Summary
Zeltiq has demonstrated that (1) it will sustain irreparable injury for which
there is no adequate remedy at law if the Defendants offer the purported ―Freeze
Sculpting‖ services and device to consumers; (2) monetary damages are inadequate to
remedy the injury; (3) the harm Zeltiq will sustain without an injunction outweighs the
harm the Defendants will sustain with an injunction; and (4) it is in the public interest
to avoid potential confusion and possible physical injury to persons.
Attorney Fees and Costs
Zeltiq also seeks an award of attorney fees and costs. Section § 1117 of Title
15 of the United States Code provides in pertinent part that when ―a violation under
section 1125(a) or (d) of this title, or a willful violation under section 1125(c) of this
title, shall have been established in any civil action arising under this chapter, the
plaintiff shall be entitled, subject to the provisions of sections 1111 and 1114 of this
title, and subject to the principles of equity, to recover (1) defendant‘s profits, (2) any
damages sustained by the plaintiff, and (3) the costs of the action.‖
An award based on 15 U.S.C. § 1117(a), allows attorney fees to be awarded to
prevailing parties in Lanham Act suits — but only in ―exceptional cases.‖
Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC, 626 F.3d 958, 960 (7th
Cir. 2010). A case ―under the Lanham Act is ‗exceptional,‘ in the sense of warranting
an award of reasonable attorneys‘ fees to the winning party, if the losing party was the
- 10 -

plaintiff and was guilty of abuse of process in suing, or if the losing party was the
defendant and had no defense yet persisted in the trademark infringement or false
advertising for which he was being sued, in order to impose costs on his opponent.‖
Id. at 963-64. The Defendants have not participated in this litigation, have not
attempted to raise any defense, and have continued their infringing activity.
Therefore, this is an exceptional case and attorney fees will be awarded. See id.
The general rules for calculating awards of attorney fees under fee-shifting
statutes have been applied to awards of such fees under the Lanham Act. See, e.g.,
Microsoft Corp. v. T & S Int’l. Corp., No. 03 C 4219, 2004 WL 407008, at *1 (N.D.
Ill. Mar. 3, 2004) (awarding attorneys‘ fees in Lanham Act case). The starting point
is the lodestar, which is calculated by multiplying the number of hours reasonably
expended by the reasonable hourly rate. See Gastineau v. Wright, 592 F.3d 747, 748
(7th Cir. 2010) (citing Hensley v. Eckerhart, 461 U.S. 424, 433-37 (1983)).

If

necessary, a court has the flexibility to ―adjust that figure to reflect various factors
including the complexity of the legal issues involved, the degree of success obtained,
and the public interest advanced by the litigation.‖ Id. (citation omitted). ―The
standard is whether the fees are reasonable in relation to the difficulty, stakes, and
outcome of the case.‖ Connolly v. Nat’l Sch. Bus. Serv., Inc., 177 F.3d 593, 597 (7th
Cir. 1999) (quoting Bankston v. Illinois, 60 F.3d 1249, 1256 (7th Cir. 1995)). The
party seeking the fee award bears the burden of proving the reasonableness of the
hours worked and the hourly rates claimed. See Spegon v. Catholic Bishop of Chi.,
- 11 -

175 F.3d 544, 550 (7th Cir. 1999). ―Hours that are not properly billed to one‘s client
also are not properly billed to one‘s adversary pursuant to statutory authority.‖
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (quotation omitted). Thus, a fee
request must make a good faith effort to exclude hours that are excessive, redundant,
or otherwise unnecessary. Id. at 434.
Costs are not defined in 15 U.S.C. § 1117(a). However, this Court concurs
with the observation in Fuller v. Heintz/Candee, 07-CV-305-BBC, 2008 WL
5423199, at *6 (W.D. Wis. Dec. 30, 2008), that this Circuit‘s precedent suggests that
―‗the costs of the action,‘ . . . does no more than refer to costs defined in 28 U.S.C. §
1920.‖ (citing Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 411 (7th Cir. 1999)
(holding that FLSA fee shifting provision providing for shifting of ―the costs of the
action‖ referred to costs as defined in 28 U.S.C. § 1920)).4
Zeltiq claims attorney fees and costs from Thompson Hine LLP (the
4

Section 1920 provides that:

A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are
necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

- 12 -

―Thompson firm‖) in the amounts of $20,263.00 and $18.77, respectively. (Suppl.
Aff. ¶ 3, Ex. 2.) (ECF Nos. 21, 21-2.) It also claims legal fees and costs attributable
to Gonzalez Saggio & Harlan LLP (the ―Gonzalez firm‖) of $5,745.00 and $904.00.
(Aff. Default J., ¶ 9, Ex. 1.) (ECF Nos. 22, 22-1.) Zeltiq has filed detailed statements
itemizing the time spent, the expenses, and the hourly rates of the attorneys for both
firms and a paralegal from the Gonzalez firm. Both firms aver that the hourly rates
charged and hours expended on behalf of Zeltiq are reasonable.
The Court concludes that the hours spent in connection with the fees sought by
Zeltiq are fair, reasonable, and customary for the tasks performed, and are within the
market rate for similar services performed by attorneys with similar ability and
experience, involving litigation under the Lanham Act in national and local markets.
Therefore, the Court grants Zeltiq‘s request for a fee award of $26,008.00.
The total amount of costs sought is $922.77. The $18.77 in costs claimed by
the Thompson firm is the price for sending documents twice by FedEx to the
Gonzalez firm. (Aff. filed 7/31/13, ¶ 14, Ex. 1 at 3.) (ECF Nos. 14, 14-1.) The
expense does not fall within the scope of § 1920 and, therefore, is not allowed.
The Gonzalez firm claims $904.00 in expenses. Of that amount, $422.00 was
expended obtaining admission to the bar for two attorneys, and that sum will be
allowed as costs. See U. S. ex rel. Gear v. Emergency Med. Assocs. of Ill., Inc., 436
F.3d 726, 730 (7th Cir. 2006) (allowing the pro hac vice admission of attorneys as

- 13 -

recoverable costs).5 The other costs sought by the Gonzalez firm are the filing fee and
service costs which are allowable under § 1920. Therefore, $904.00 in costs are
allowed. Zeltiq should file a bill of costs with the Clerk of Court pursuant to Fed. R.
Civ. P. 54.
Pre-Judgment Interest
―Prejudgment interest ensures that victims of federal law violations are fully
compensated for their loss.” RK Co. v. See, 622 F.3d 846, 853 (7th Cir. 2010). In this
Circuit pre-judgment interest is recoverable in cases of trademark infringement in
order to make the plaintiff whole. See Gorenstein Enter., Inc. v. Quality Care-USA,
Inc., 874 F.2d 431, 436 (7th Cir. 1989). ―[I]n most cases prejudgment interest is an
element of compensation.‖ Shott v. Rush-Presbyterian St. Luke’s Med. Ctr., 338 F.3d
736, 745 (7th Cir. 2003). The Court will award pre-judgment interest.
Zeltiq has not addressed the rate of pre-judgment interest or the time from
which it should run. However, the prime rate is the benchmark to be used for prejudgment interest, unless another rate is statutorily defined. First Nat’l Bank of Chi.
v. Standard Bank & Trust, 172 F.3d 472, 480 (7th Cir. 1999); Gorenstein, 874 F.2d at
437. Furthermore, as Shott, 338 F.3d at 746, comments ―[l]awyers rarely bill their
clients within days of rendering services in an ongoing suit, receive payment within
5

Kalitta Air L.L.C. v. Central Texas Airborne System Inc., 741 F.3d 955, 958 (9th Cir. 2013) criticized
Gear as pre-dating the holding in Taniguchi v. Kan Pac. Saipan, Ltd., 132 S.Ct. 1997, 2006 (2012), that
―taxable costs are limited by statute and are modest in scope,‖ and as not being clearly explained.
This action involves regular admission to this District‘s bar – pro hac vice admissions are not allowed
in this District. See Gen. L.R. 83(c)(2)(E) (E.D. Wis.). Moreover, Gear remains controlling case law.

- 14 -

thirty days of that rendition, or charge interest for payment after thirty days.‖ Id.
(citations omitted). Thus, the pre-judgment interest should begin to accrue thirty days
after Zeltiq was billed for the service. Id.
Accordingly, Zeltiq is entitled to pre-judgment interest on the amount of
attorney fees beginning thirty days after it received the bills from its attorneys. Zeltiq
must file a document indicating the date or dates it was billed for the legal services in
this action, and its calculation of the appropriate amount of pre-judgment interest at the
prime rate running from thirty days after receiving the bill(s) to the date of judgment.
The calculation should be based on an anticipated entry of judgment on the first
business day after the date Zeltiq files its document.
Post-Judgment Interest
Zeltiq also requests an award of post-judgment interest. The post-judgment
interest rate for federal cases is fixed by 28 U.S.C. § 1961. Gorenstein, 874 F.2d at
436. ―Civil litigants who win money judgments in district courts are entitled to post
judgment interest‖ by statute. See Pace Commc’ns, Inc. v. Moonlight Design, Inc., 31
F.3d 587, 591 (7th Cir. 1994).

A judgment awarding post-judgment interest is

redundant. Id. Therefore, the judgment will not provide for post-judgment interest.

- 15 -

NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Defendants Brown Health Relaxation Station LLC, Nouvelle Weight Loss
Center, and Meredith Brown, their affiliates, officers, directors, agents, representatives,
attorneys, and all persons acting or claiming to act on their behalf or under their
direction or authority, and all persons acting in concert or participation therewith, are
hereby PERMANENTLY ENJOINED from:
(i) using the marks Zeltiq®, CoolSculpting®, Freeze
Sculpting, Cryolipolysis®, or any confusingly similar
mark or colorable imitation thereof in connection with the
promotion, advertisement, display, sale, or distribution of
any goods or services offered by any of the Defendants;
(ii) performing any act, making any statement, or
distributing any materials that are likely to lead members
of the public to believe that any device(s) owned or
services performed, distributed, leased, or sold by the
Defendants are associated or connected with Zeltiq or are
sold, licensed, sponsored, approved or authorized by
Zeltiq;
(iii) reproducing, displaying distributing, or creating
derivative works from any text, graphics, photographs,
videos, or other materials owned by and/or emanating
from Zeltiq or its authorized providers concerning
―cryolipolysis‖ and the results therefrom; and
(iv) otherwise taking any action likely to cause public
confusion, mistake, or deception as to the connection,
affiliation, sponsorship, approval, or other association of
Defendants‘ goods or services with Zeltiq or its goods or
services.

- 16 -

No later than June 3, 2014, the Defendants MUST surrender the accused
device to Zeltiq‘s counsel for inspection, analysis, and/or destruction.
Zeltiq is AWARDED against the Defendants jointly and severally, $26,008.00
in attorney fees with pre-judgment interest at the prime rate beginning thirty days
from the date of billing(s) to the date of judgment, and costs in the amount of
$904.00;
No later than June 3, 2014, Zeltiq MUST FILE a document indicating the
date or dates it was billed for the legal services rendered in this action and calculating
the amount of pre-judgment interest in a manner consistent with this decision. Such
calculation should be based on the anticipated entry of judgment on the first business
day after the date Zeltiq files its document.
Dated at Milwaukee, Wisconsin, this 6th day of May, 2014.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

- 17 -