CASE 0:12-cv-02899-DWF-SER Document 599 Filed 11/07/17 Page 1 of 3 OAO450 (Rev. 5/85) Judgment in a Civil Case

UNITED STATES DISTRICT COURT District of Minnesota Select Comfort Corporation, and Select Comfort SC Corporation,

JUDGMENT IN A CIVIL CASE

V. Case Number: 12-2899 (DWF/SER) John Baxter; Dires, LLC d/b/a/ Personal Touch Beds and Personal Comfort Beds; Scott Stenzel and Craig Miller.

X Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED THAT: The jury found that: Dires, LLC (a/k/a Personal Comfort Bed) did not infringe Select Comfort Corporation’s trademark rights in SLEEP NUMBER, WHAT’S YOUR SLEEP NUMBER, SELECT COMFORT, or COMFORTAIRE. Direct Commerce, LLC and/or DigiCraft Agency LLC (a/k/a Personal Touch Bed) did not infringe Select Comfort Corporation’s trademark rights in SLEEP NUMBER, WHAT’S YOUR SLEEP NUMBER, SELECT COMFORT, or COMFORTAIRE. Plaintiff’s SLEEP NUMBER mark is famous, but Dires, LLC’s (a/k/a Personal Comfort Bed) advertising has not diluted the SLEEP NUMBER mark. Dires, LLC’s (a/k/a Personal Comfort Bed) use of NUMBER BED does not constitute unfair competition. Direct Commerce, LLC and/or DigiCraft Agency, LLC’s (a/k/a Personal Touch Bed) use of NUMBER BED does not constitute unfair competition. With respect to Plaintiffs’ asserted claims for false advertising: •

the statements “Personal Comfort is Preferred 6 to 1 Over Sleep Number” and “Personal Comfort is Preferred over Sleep Number” are not statements of fact disseminated in commercial advertising;

•

the statement “Personal Touch is Preferred 6 to 1 over Sleep Number” constitutes false advertising, and Defendants did not overcome presumptions that the claim is deceiving, material, and caused injury to Plaintiffs.

•

the statement “Personal Comfort was, or we were, involved in designing or developing Sleep Number

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Form Modified: 09/16/04

CASE 0:12-cv-02899-DWF-SER Document 599 Filed 11/07/17 Page 2 of 3 beds (or any specific model of Sleep Number bed)” was a statement of fact disseminated in commercial advertising, but was not literally false or impliedly false or misleading. •

the statement “Personal Comfort, or we, sold patents to Sleep Number (or Sleep Number purchased patents from Personal Comfort, or us)” constitutes false advertising, and Defendants did not overcome presumptions that the claim is deceiving, material, and caused injury to Plaintiffs.

•

the statement “Personal Comfort beds are ‘identical’ to or the ‘same’ as Sleep Number beds (or specific Personal Comfort bed models are ‘identical’ or the ‘same’ to Sleep Number bed models)” was a statement of fact disseminated in commercial advertising and is literally false, but Defendants overcame the presumption of deception and, thus, this statement does not support a claim for false advertising.

•

the statement “Sleep Number bed parts are not replaceable or changeable (e.g. Sleep Number bed chambers or foam are not replaceable or changeable)” constitutes false advertising, and Defendants did not overcome presumptions that the claim is deceiving, material, and caused injury to Plaintiffs.

•

the statement “Personal Comfort is an upgraded version of Sleep Number” was a statement of fact disseminated in commercial advertising, but was not literally false or impliedly false or misleading.

•

the statement “Sleep Number paid Personal Comfort not to compete or to manufacture mattresses” constitutes false advertising, and Defendants did not overcome presumptions that the claim is deceiving, material, and caused injury to Plaintiffs.

•

the statement “Personal Comfort has, or we have, been in the business since the 1970s and/or longer than Sleep Number” was a statement of fact disseminated in commercial advertising, but was not literally false or impliedly false or misleading.

•

the statement “Personal Comfort beds are ‘medical grade’ (or certain components are ‘medical grade’–e.g. foam, chambers)” was a statement of fact disseminated in commercial advertising, but was not literally false or impliedly false or misleading.

•

the statement “Personal Comfort is FDA regulated/certified/approved or Personal Comfort sells FDA registered mattresses” constitutes false advertising, and Defendants did not overcome presumptions that the claim is deceiving, material, and caused injury to Plaintiffs.

•

the statement “Personal Comfort is owned and operated by a FDA registered medical device manufacturing company” constitutes false advertising, and Defendants did not overcome presumptions that the claim is deceiving, material, and caused injury to Plaintiffs.

•

the statement “Personal Comfort beds come with ‘no sales tax’ or are ‘tax free’” constitutes false advertising, and Defendants did not overcome presumptions that the claim is deceiving, material, and caused injury to Plaintiffs.

•

the statement “Personal Comfort beds are Made in the USA” was a statement of fact disseminated in commercial advertising, but was not literally false or impliedly false or misleading.

•

Defendants’ use of the phrase NUMBER BED in advertising is not a false or misleading.

With respect to Plaintiffs’ claim for damages, the jury found that: •

Plaintiffs did not suffer lost profits as a result of Defendant’ conduct;

•

Defendants obtained a wrongful benefit in the amount of $155,721 ($120,812 attributable to Dires,

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Form Modified: 09/16/04

CASE 0:12-cv-02899-DWF-SER Document 599 Filed 11/07/17 Page 3 of 3 LLC (a/k/a Personal Comfort Bed) and $34,909 attributable to Direct Commerce, LLC and/or DigiCraft Agency (a/k/a Personal Touch Bed)). As to Defendants’ Counterclaim, the jury found that Select Comfort does not have trademark rights in NUMBER BED.

November 7, 2017

RICHARD D. SLETTEN, CLERK

Date

s/Brenda J. Schaffer (By) Brenda J. Schaffer

Deputy Clerk

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

P:\Trials-Civil\Trial-Civil - Select Comfort v Baxter\Final JUDGMENT12cv2899judg.wpd

Form Modified: 09/16/04