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Sulzer Mixpac USA, Inc. v. TC Dental & Medical Supplies Inc.

November 18, 2010

SULZER MIXPAC USA, INC., A NEW HAMPSHIRE CORPORATION, AND SULZER MIXPAC AG, A SWISS CORPORATION, PLAINTIFFS,
v.
TC DENTAL & MEDICAL SUPPLIES INC. D/B/A STARRYSHINE, A CALIFORNIA CORPORATION, AND SALLY L. CHENG, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: Hon. James V. Selna United States District Court Judge

CONSENT DECREE AND PERMANENT INJUNCTION

CONSENT DECREE AND PERMANENT INJUNCTION

1. WHEREAS, the Plaintiffs, Sulzer Mixpac USA, Inc., and Sulzer Mixpac AG ("Plaintiffs") filed a complaint alleging, among other things, that TC Dental & Medical Supplies Inc. dba Starryshine and Sally L. Cheng (collectively, the "Defendants") have infringed its trademarks, trade dress and patents; and

2. WHEREAS, the Plaintiffs and Defendants (and collectively, the "Parties") having compromised their claims pursuant to a Settlement Agreement entered into contemporaneously herewith, now desire to settle the controversies between them, and they request entry of the following Stipulation of Facts and Consent Decree and Permanent Injunction.

3. NOW THEREFORE, based on consideration arising to the Parties, and in furtherance of the complaint and the exhibits, the Parties request that this Court accept and approve the requests of the Parties and find and order as follows:

STIPULATED FACTS

4. This Court has jurisdiction over the subject matter and over the Parties to this action pursuant to 15 U.S.C. § 1121, 28 U.S.C. § 1331 and 1338(a) & (b).

5. Sulzer Mixpac AG is the owner of U.S. Patent Nos. 5,918,772 and 6,186,363, and such patents are valid and enforceable.

6. U.S. Patent Nos. 5,918,772 and 6,186,363 are infringed by the mixing tips offered, advertised or sold by the Defendants.

7. The Mixpac Colored Dome Mark and Trade Dress for its mixing tips is distinctive, well known, non-functional and has acquired secondary meaning. Customers recognize the Mixpac Colored Dome Mark and Trade Dress as a indicator of source and purchase based on that look.

8. The mixing tips sold or offered for sale by Defendants infringe the Mixpac Colored Dome Mark and Trade Dress or U.S. Trademark Registration Nos. 3,762,232 and 3,762,233.

9. IT IS THEREFORE ORDERED that judgment be entered against the Defendants as to the First, Second, Third, Fourth, Seventh and Eighth Claims within Plaintiffs' complaint. The Plaintiffs hereby move this Court to dismiss without prejudice the Fifth and Sixth Claims within Plaintiffs' complaint.

10. IT IS ORDERED that Defendants TC Dental & Medical Supplies Inc. dba Starryshine, a California corporation, and Sally L. Cheng, an individual, as well as its principals, officers, members, agents, servants, employees, and those persons under their control or in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, are hereby enjoined and permanently restrained from:

(i) making, using, importing, selling and/or offering for sale any mixing tips that infringe any claims of U.S. ...


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