Opinion
2:22-cv-03350-SVW-MRW
09-08-2022
PN MEDICAL, INC., a Florida corporation, Plaintiff, v. DNJ GLOBAL LLC, a California limited liability company d/b/a THE PIPER d/b/a THE PIPER STORE; and DOES 1-10, Defendants.
JUDGMENT RE PERMANENT INJUNCTION
Hon. Stephen V. Wilson, United States District Judge.
JUDGMENT
The Court, having reviewed the Stipulation for Entry of Judgment re Permanent Injunction filed by Plaintiff PN MEDICAL, INC. (“Plaintiff”) and Defendant DN GLOBAL LLC d/b/a THE PIPER STORE (“Defendant”), and good cause appearing hereby issues the following ORDERS:
1. Pursuant to the Lanham Act 15 U.S.C. § 1125(a); California Statutory Unfair Competition (Cal. Bus & Prof Code § 17200); and California common law unfair competition, Defendant, its officers, directors, employees, agents, and all persons acting on its behalf or in concert with them, are hereby immediately and permanently enjoined and restrained from the following activities:
a. Using the term “THE BREATHER” or “THE PIPER,” except that Defendant may use the product name “PIPER” without the word “THE” at the beginning;
b. Using the trade dress for Plaintiff's THE BREATHER product, which consists of the overall look and appearance, including, but not limited to the visual flow of THE BREATHER product; the placement of number dials on each side of THE BREATHER product; the design, style, and appearance of the curves and lines in THE BREATHER product; the design, appearance, and placement of the “exhale” and “inhale” locations and settings; the design, the top placement of comfort grips of THE BREATHER product, the color contrast and color combination of THE BREATHER product; the packaging; the placement of the name and logo in the middle of the product; and the overall look and appearance of the mouthpiece adapter that THE BREATHER product uses in connection with its product (hereinafter collectively referred to as “THE BREATHER TRADE DRESS”). A photo of THE BREATHER TRADE DRESS is shown below:
(Image Omitted)
c. Using product packaging, or any other words confusingly similar to the marks or trade dress of THE BREATHER and other related marks that include the term “THE BREATHER” alone or in combination with other words, as a service, trademark, trade name, trade dress, component, or otherwise to market, promote, advertise, to identify Defendant's product. A photo of THE BREATHER packaging is shown below:
d. Otherwise infringing the marks or trade dress of THE BREATHER;
(Image Omitted)
e. Using misleading advertising to suggest endorsement by Plaintiff of Defendant's product and/or services when no such endorsement exists; Engaging in any other conduct that will cause, or is likely to cause confusion, mistake, deception, or misunderstanding as to the affiliation, connection, or association or origin, sponsorship, or approval of their businesses, goods, or services with or by Plaintiff's product under THE BREATHER mark;
f. Using the following unsubstantiated claims:
i. RETRAIN YOUR LUNGS to work better with this innovative breathing exerciser device for respiratory therapy. Our lung exerciser device enhances lung capacity to overcome shortness of breath.
ii. STRENGTHEN YOUR LUNGS with our lungs exercise device for adult use. This breathing trainer measures your lung capacity, lets you track your progress and helps keep your alveoli air sacs inflated.
iii. NATURAL, DRUG-FREE breathing treatment addresses an array of respiratory conditions.
g. Using depictions of a doctor on its instructions and on its Amazon listing or otherwise stating or suggesting that its product is being sold by a medical supply company or medical professionals or improves medical conditions.
2. In addition, Defendant is ORDERED to do the following:
a. Within five (5) days of this Judgment, turn over to Plaintiff for disposal or destruction all of Defendant's products sold under the mark THE PIPER in the possession of Defendant or its agents, which bear or use THE PIPER mark and/or resemble Plaintiff packaging or product configuration trade dress; and
b. Amend the listing of questions and answers on its Amazon product page, or anyplace else, to remove any customer question where THE PIPER is referred to “AKA THE BREATHER” or where the answers state that THE PIPER product is just like our Plaintiff's product sold under the mark THE BREATHER.
This Court retains jurisdiction to enforce the terms and conditions of this Permanent Injunction.
IT IS SO ORDERED, ADJUDGED and DECREED.