IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
vs* * l:03-cv-2020-LJM-WTL
CARPAL THERAPY, INC., )
FINAL CONSENT JUDGMENT
Plaintiff TherapyCare Resources, Inc. ("TherapyCare") and Defendant Carpal Therapy,
Inc. enter into this Final Consent Judgment to resolve the above-captioned lawsuit (the "Lawsuit"), and the Court hereby orders, as follows:
It is ORDERED that:
1. This Order replaces and supersedes the Consent Judgment entered on September 20, 2004 (Docket #81).
2. Third Parties: The provisions and restrictions of this Order shall apply to defendant Carpal Therapy, Inc., David _______ personally, and all Carpal Therapy Associates. As used herein, "Carpal Therapy Associates" means all of Carpal Therapy's authorized1 dealers, distributors, instructors, or others who are hired or otherwise engaged by Carpal Therapy to promote Carpal Therapy, Inc.'s goods and/or services. Carpal Therapy Associates shall not include third parties who may ask David ________ to be a speaker at a conference or university.
For example, Carpal Therapy pays instructors to teach at SASTM seminars and conventions. These are CTI
projects over which Carpal Therapy has control, and such Carpal Therapy Associates will be bound by this
Agreement. However, one of these same instructors may also teach and speak at other conventions and seminars
about the history of IASTM. Carpal Therapy has no control over those projects and the same are not covered by
The restrictions in the Settlement Agreement shall not apply to any third party documentation, articles or interviews of which Carpal Therapy or David ________ is the subject matter. Carpal Therapy and David ________ are not barred from distributing any copies of such third party documentation, research, articles or interviews.
3. Business Card: Carpal Therapy, Inc. may use the term or word ________ one time on a standard 2x3 inch paper business card to refer to the person named David ________. The word ________ cannot appear in a type, size or font different than surrounding text and cannot appear in a type, size or font larger than 12 point.
4. Non-Marketing Business Communication/Documentation via Ordinary Course of the Business: Carpal Therapy, Inc. may use the term or word ________ in a font no larger than 12 pt in the ordinary course of business on corporate documentation or business documentation to refer to the person named David ________, including, but not limited to: on company stationery as part of the signature, typed below the signature line, and pre-printed with a title or contact information; income taxes; sales taxes; articles of incorporation; an author; corporate minutes; bylaws; tax returns; as a signature in email and text messages; insurance materials; CEU approval forms; benefit plans; accounting documents; product manufacturing documents; research: patents; and related materials that require disclosure of an individual's full legal name. For avoidance of doubt, none of the items listed in this Paragraph 4 can be used as marketing material.
5. Oral Communications: The restrictions in this Settlement Agreement shall not apply to Carpal Therapy,
David ________ or Carpal Therapy
Associates with respect to any oral communications to the extent that such statements are truthful and
6. Website: Carpal Therapy and David ________ may use the term ________ on its website once as part of corporation information with David ________'s business title and contact information and in a font no larger than 12 point The Court approved statement referenced in Paragraph 7 may be used once on the website in a font no larger than 12 point. In addition, the following disclaimer will appear once, and only once, on Carpal Therapy, Inc.'s website in 12-point italicized print at the bottom of the website's home page:
"Carpal Therapy, Inc., SASTM.com, and its owners or representatives are not affiliated in any way with TherapyCare Resources, Inc. or Technique®"
Carpal Therapy shall have fourteen (14) days from the date this Order is executed to make the necessary changes to its website to ensure that its website conforms to the terms and conditions of this Order. Carpal Therapy will notify TherapyCare's counsel when the changes are complete. TherapyCare shall have seven (7) days upon receipt of such notice from Carpal Therapy to review the website to confirm that the website conforms to the terms and conditions of this Order. If TherapyCare has a reasonable objection to the website, TherapyCare shall notify Carpal Therapy's counsel of any such objection and Carpal Therapy shall have seven (7) days from receipt of such notice of said objection to correct its website.
7. Marketing Materials other than the Website: Carpal Therapy and David ________ may use the term ________ on its marketing materials once; as part of corporation information with David ________'s business title and contact information and in a font no larger than 12 point or, in the following statement in a font no larger than 12 point: "David ________, a pioneer in the Instrument Assisted Soft Tissue Mobilization (IASTM) industry."
8. No other use of ________: Except as expressly provided in this Order, Carpal Therapy, Inc., David ________, and the Carpal Therapy Associates may not use the term
________ anywhere in any manner that is connected with, associated with, or related to instrument-assisted soft tissue mobilization.
9. Resume: David ________ may use the word ________ on a resume but only in a form substantially similar to the resume attached as Exhibit A and for the purpose of (a) responding to requests or inquiries from third party media entities; (b) responding to inquiries from third party organizations seeking information for use in a lecture, seminar, presentations or CEU accreditation; and (c) for distribution to clients and potential clients at seminars and lectures put on by Carpal Therapy or third parties. As used herein, a "seminar" or "lecture" is a fixed gathering of people to hear a lecture, presentation, or to receive training and does not include a booth or exhibit space at a trade show or convention. David ________ may use on his resume factual information including the terms Grastech and GASTM but only in connection with factually describing David ________'s past employment history. For avoidance of doubt, and except as provided in this Paragraph 9, the resume shall not be used for marketing purposes.
10. "Grastech". Except as expressly provided in this Order, Carpal Therapy, Inc., David ________, and the Carpal Therapy Associates may not use the term "Grastech" in any manner, in any format. Carpal Therapy, Inc., David ________, and the Carpal Therapy Associates may not use the terms GASTM, GISTM, GIASTM, or GT as metatags or in sponsored links registered with Internet search engines.
11. Misrepresentation: Carpal Therapy, Inc. and David ________ will not use false or misleading information on any written materials, in any format, including but not limited to statements regarding pending or approved continuing education credit for athletic trainers, chiropractors, occupational therapists and physical therapists. Carpal Therapy, Inc., David ________, and the Carpal Therapy Associates shall not misrepresent the credentials of David
________ or any other person affiliated with Carpal Therapy, Inc. Any manual published by Carpal
Therapy, Inc. will not contain any portions copied from TherapyCare's manual. Carpal Therapy has revised its manual under the original Consent Judgment, and TherapyCare agrees that the manual will not violate the preceding sentence or otherwise be deemed a breach of this Agreement.
12. No Association with TherapyCare. Carpal Therapy, Inc., David ________, and Carpal Therapy Associates may not make any written statement: 1) that suggests that there is some association or relationship between Carpal Therapy, Inc. and TherapyCare or their respective products or services; 2) that Carpal Therapy Inc.'s tools or method are replacements for the ________ Technique® or the stainless steel instruments; or 3) that refers to either of the parties' products as "old method," "old instruments," or "the old Stainless Steel instruments."
13. Andre Hall: Except with respect to David ________'s resume and oral conversations, Carpal Therapy, Inc. and David ________ may not use the name of Andre Hall in any website or print in conjunction with the goods or services of Carpal Therapy, Inc.
14. Injunction: Carpal Therapy, Inc. and David ________ agree to an injunction on original tools Nos. 7 and 8 until June 25,2013.
15. Dissemination of Information: Subject to the restrictions on the use of the term ________ in this Order, the terms of this Order are not confidential and can be described on either party's Web site or disclosed to the public. Copies of this Order may be provided to Carpal Therapy Associates and any entity that does business with or potentially will do business with either party to clarify the relationship between the parties and the terms and conditions of this Order.
16. Trademark Registration: Carpal Therapy, Inc., and David ________ agree not to seek to cancel or otherwise contest TherapyCare's U.S. Trademark Registration for the mark ________ TECHNIQUE®.
17. Release of Carpal Therapy and ________. So long as Carpal Therapy, Inc. and David ________ continue to abide by the terms of this Order, TherapyCare releases Carpal Therapy, Inc., its officers, directors, employees, agents, advertisers, publishers, customers, successors and assigns from any and all claims and liabilities arising out of the facts and circumstances set forth herein, and all claims and liabilities which were or could have been brought in the Lawsuit.
18. Release of TherapyCare. Carpal Therapy, Inc. releases TherapyCare, its officers, directors, employees, agents, advertisers, publishers, customers, successors and assigns from any and all claims and liabilities arising out of the facts and circumstances set forth herein, and all claims and liabilities which were or could have been brought in the Lawsuit.
19. Irreparable Harm. Any violation of this Order by Carpal Therapy, Inc. or David ________ will cause TherapyCare immediate and irreparable harm.
20. Liquidated Damages. Carpal Therapy, Inc. agrees to pay liquidated damages to TherapyCare of $1,000 per instance or occurrence of any violation of this Final Settlement Agreement by David ________ or Carpal Therapy. The parties stipulate and agree that, in light of the protracted nature of their dispute, this amount is fair and reasonable. The parties further stipulate and agree that this liquidated damages amount is not a penalty, but an amount intended to reflect the uncertainties of litigation and difficulty of proving damages. The prevailing party in any proceeding to enforce this Agreement shall be entitled to recover from the other party all of its reasonable legal fees, costs and expenses.
and Assigns. This Order will be binding upon and inure to the benefit
parties’ successors and assigns and shall remain in effect until such time, if ever, that the parties
modify or extinguish the Order by separate written agreement.
22. Validity. The obligations set forth in this Order are reasonable, valid, enforceable, and
not against public policy. The parties agree not to challenge any provision of this Order in any
manner or in any forum.
23. Consultation with Legal Counsel. Carpal Therapy, Inc. hereby acknowledges that it
has agreed to the provisions of this Order after having fully consulted with competent legal counsel.
24. Dismissal with Prejudice. This Lawsuit, including all claims and counterclaims,
including without limitation patent infringement, copyright infringement, false advertising, and
trademark infringement, will be formally dismissed with prejudice upon the execution and entry by
the Court of this Order. This Court shall retain jurisdiction over any enforcement proceedings that
may become necessary in the future, and the parties agree that any proceeding to enforce this Order
must be maintained in this Court.
By executing this Order, the undersigned agreement agree to its terms.
THERAPYCARE RESOURCES, INC.
CARPAL THERAPY, INC.
The Court hereby approves this Order and enters judgment accordingly. The parties are to bear their own costs and attorneys’ fees except as provided above. The action is dismissed with prejudice, but can be re-opened under this cause number for enforcement purposes.
Paul B. Hunt
BARNES & THORNBURG LLP
Mary Jane Frisby
BARNES & THORNBURG LLP
Dean A. McConnell
KREIG DEVAULT LLP
Alastair J. Warr
KREIG DEVAULT LLP