The technology that involves cooling fact cells to reduce the amount of body fat is the center of a new trademark complaint. Zeltiq Aesthetics, Inc has filed a claim against Dr. Marco Hallerbach, MD, and Dr. Hallerbach & Associates, Inc. claiming that they are not only unlawfully using a procedure they own, but that in so doing they are infringing various trademarks owned by the company. The complaint was filed in the United States Federal District Court for the Middle District of Florida, Tampa Division on October 9, 2012. Zeltiq also filed a Motion for Preliminary Injunction simultaneous with the filing of the complaint, which requests an injunction to stop Dr. Hallerbach’s advertising and to prevent him from using any of Zeltiq’s trademarked products.
Zeltiq Aesthetics is a medical technology company that focuses on developing products that utilize its cooling technology. The procedure in question is called CoolSculpting, with the technology behind it called Cryolipolysis. It is an aesthetic procedure that is non-invasive, and supposedly breaks down the body’s fat cells. According to Zeltiq’s complaint, the technology permits the selective reduction of fat bulges through by a controlled cooling of subcutaneous fatty tissue. “The adipose tissue is broken down and absorbed by the body through a natural, biological process known as ‘apoptosis’ to gradually reshape body contours,” the complaint explains. Zeltiq owns patent rights and exclusive license to this procedure.
Zeltiq’s Cryolipolysis was approved by the United States Food and Drug Administration in September of 2010 to be used on the body’s flank region, otherwise known as love handles. In May 2012, it was approved to be used on the abdomen as well.
Zeltiq has allowed authorized Physicians to purchase the CoolSculpting device to be used at their respective clinics or offices. These providers agree to enter into a master agreement that incorporates a non-transferable license that allows them to use Zeltiq’s technology. Currently, there are 49 authorized providers in Florida, with 26 providers in the greater Tampa Bay area. Dr. Hallerbach is not one of these authorized providers.
Dr. Hallerbach owns a weight loss clinic called Get Your Shape Back. His clinic claims that its Cryolipolysis treatments are in fact the patented CoolSculpting treatments that were developed by Zeltiq. However, Zeltiq has not given Dr. Hallerbach the permission to use their procedures or produces, nor does he have the right to use their company’s name or various trademarks.
They claim that his vain attempt to sway customers into thinking that his services are the real deal has led to customers being confused about Zeltiq’s product and the sullying of Zeltiq’s name. Zeltiq claims that Dr. Hallerbach’s actions are “likely to influence purchasing decisions,” and that they “are causing injury to Zeltiq, because they diminish the value of Zeltiq’s reputation and good will that it has cultivated as the sole provider of FDA-cleared cryolipolysis services.”
According to Zeltiq, Dr. Hallerbach’s procedure has not been cleared by the U.S. Food and Drug Administration, and in fact Zeltiq is the only company within the United States that has be granted the FDA clearance to offer Cryolipolysis as a service. Sergio Garcia, Senior Vice President of Zeltiq has said that “Zeltiq prides itself on a reputation based on clinically proven safety and efficacy, and we will vigorously protect that reputation from copycat devices not cleared by the FDA.” He goes on to say, “we urge consumers to beware of misleading and deceptive advertising and to seek CoolSculpting treatments only from authorized physician providers within the elite network of CoolSculpting Centers.”
Notwithstanding the allegations by Zeltiq, Dr. Hallerbach’s clinic does advertise a procedure called “cryolipolysis,” which it states is FDA approved. Even more confusing, Dr. Hallerbach’s clinic Get Your Shape Back maintains a Twitter account under the handle @ShapeBack. Some tweets have pointed to, and even linked, to Zeltiq’s website. In addition, @ShapeBack’s page background features a snowflake logo that Zeltiq calls “strikingly similar to the Zeltiq’s logo” and states that it “displays the exact same object (a snowflake), conveys an identical suggestive meaning … and is displayed in conjunction with Defendants’ “cryolipolysis” treatments, in precisely the same manner as Zeltiq’s trademark.”
So far, Dr. Hallerbach seems to have disregarded the cease and desist orders from Zeltiq and has continued to offer the Cryolipolysis treatments in his clinic, as well as in various spas in the surrounding area.
The complaint filed by Zeltiq says that the “defendants are not licensed to use the marks Zeltiq, CoolSculpting, or Snowflake design, the patented, FDA-cleared technology used in Zeltiq’s cryolipolysis treatments, or any other Zeltiq intellectual property in connection with any goods or services that they offer.”
However, Dr. Hallerbach has also continued to market his procedure as the real deal. In addition to advertising that the process offered is FDA approved, Dr. Hallerbach advertises his service with statements like “as seen on several TV shows.” Hallerback has also offered a Groupon deal within the Tampa Bay area for the procedure called “Cryolipolysis Liposuction Treament.”
In the Motion for Preliminary Injunction filed by Zeltiq, they are arguing that they are entitled to the injunction because they are “suffering irreparable injury, the balance of harms decidedly favors Zeltiq, and the public interest favors [Hallerbach].”
Zeltiq paints a pretty convincing picture when it comes to their side of the story. As of this publication date, there has not been a decision in this case and we await response from Dr. Hallerbach.