SOURCE: Cooley Manion Jones LLP

Cooley Manion Jones LLP

February 21, 2012 05:39 ET

Tecnimed Prevails on Appeal: Second Circuit Court of Appeals Affirms Preliminary Injunction and Nationwide Packaging Recall

BOSTON, MA--(Marketwire - Feb 21, 2012) - Miele Law Group P.C. and Cooley Manion Jones LLP, on behalf of their client, Tecnimed srl, announced today that the Second Circuit Court of Appeals has affirmed the entry of a preliminary injunction and nationwide packaging recall against American Scientific Resources, Inc. and Kidz-Med, Inc. (collectively, "Kid-Med"). The decision upheld the ruling that Tecnimed has a likelihood of success on the merits of its trademark infringement claims and that Kidz-Med's bad faith actions warranted a recall of its product packaging.

The lawsuit arose after Tecnimed discovered that Kidz-Med, its former U.S. distributor, was marketing a non-contact thermometer in packaging remarkably similar to Tecnimed's Thermofocus® 5-in-1 non-contact thermometer. After Kidz-Med refused to adequately remedy the confusion it created in the marketplace, Tecnimed filed a complaint in the U.S. District Court for the Southern District of New York. In addition to monetary damages, Tecnimed sought an injunction preventing Kidz-Med from continuing to use Tecnimed's trade dress and trademarks.

The district court granted Tecnimed's request, ordered that Kidz-Med stop selling its thermometer in its current packaging and required that Kidz-Med conduct a nationwide recall of the infringing packaging. Kidz-Med appealed, but the Court of Appeals for the Second Circuit has denied that appeal and affirmed the district court's findings in favor of Tecnimed.

In this decision, the Second Circuit Court of Appeals found that the "facts permitted the district court to find that Tecnimed invented the trade dress at issue." The court also affirmed the ruling that Kidz-Med had acted in "bad faith in adopting the disputed trade dress for its non-contact thermometer." As the court noted, Kidz-Med "deliberately sailed into harm's way" by continuing to use the trade dress, despite warnings that it could lose this lawsuit. The court also pointed out that "the record shows the district court specifically concluded that Kidz-Med should bear the cost [of the packaging recall] despite its imminent insolvency because it has assumed the risk of a recall by intentionally keeping its non-contact thermometers on the market during this litigation's pendency."

Tecnimed is pleased with this decision and will continue to pursue the underlying lawsuit which seeks monetary damages arising from Kidz-Med's breach of its contractual obligations and sale of products with infringing packaging. This lawsuit is part of Tecnimed's vigilant efforts to enforce and protect its valuable intellectual property rights and other business assets.

Tecnimed is the manufacturer of the Thermofocus® 5-in-1 non-contact thermometer. The Thermofocus® thermometer was the first thermometer to permit a parent to take his of her child's temperature without having to touch or otherwise disturb their child.

Please direct any questions regarding this lawsuit to Tecnimed's lead counsel, Tony Miele of Miele Law Group, P.C., and Jennifer Furey of Cooley Manion Jones LLP. Visit the websites for Miele Law Group and Cooley Manion Jones to learn more about their IP Litigation Practice Team.
www.mielelawgroup.com
www.cmjlaw.com

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