Infirst Healthcare v. Cocoa Cough - Trademark Complaint PDF

Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 1 of 23 PageID #: 32
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE
INFIRST HEALTHCARE LIMITED,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
COCOA COUGH,
Defendant.
C.A. No. 14-1059-LPS/CJB

JURY TRIAL DEMANDED
AMENDED COMPLAINT
Plaintiff Infirst Healthcare Limited ("Infirst" or "Plaintiff ') complains of Defendant
Cocoa Cough (or "Defendant") as follows:
NATURE OF LAWSUIT
1.
This action is for (i) patent infringement of federally issued patents in violation
of the United States, Title 35 of the United States Patent Act, 35 U.S.C. 271(a)-(c); (ii) false
advertising and false representation, and unfair competition in violation of Section 43(a) of the
United States Trademark Act, 15 U.S.C. 1125(a); (iii) consumer fraud in violation of the
Delaware Consumer Fraud Act, 6 Del. 2531; (iv) deceptive trade practices in violation of the
Delaware Consumer Fraud Act, 6 Del. 2532; and (v) related claims of common law unfair
competition, false advertisement, trade libel, injury to business reputation, and unjust enrichment
under Delaware law.
THE PARTIES
2.
Infirst is a company incorporated under the laws of England and Wales with
company number 08077285.

3.
On information and belief, Defendant Cocoa Cough has a principal place of
business at 492 South 1440 West, Provo, Utah, 84601. On information and belief, its principal
officers are Mr. Taylor Stauss and Mr. Bren Ty McRae.
JURISDICTION AND VENUE
4.
This is an action for patent infringement arising under the patent laws of the
United States of America, Title 35 U.S.C. 1, et seq., unfair competition and false advertising
arising under the trademark laws of the United States of America, Title 15 U.S.C. 1, et seq.,
and the Delaware Deceptive Trade Practices Act, Del. Code Ann. Tit. 6 2531, et seq., and for
unfair competition, false advertising, trade libel and unjust enrichment under the common law of
Delaware.
5.
This Court has subject matter jurisdiction over the claims herein pursuant to 15
U.S.C. 1121 and 28 U.S.C. 1331 and 1338(a), and supplemental jurisdiction over claims
herein arising under the statutory and common law of the State of Delaware pursuant to 28
U.S.C. 1367(a) because the state law claims are so related to the federal claims that they form
part of the same case or controversy.
6.
This Court has personal jurisdiction over Defendant Cocoa Cough because
Defendant Cocoa Cough has done, and continues to do business within this judicial district
related to the unlawful activities at issue in this Amended Complaint, because the acts
complained of herein have been directly and specifically intended to cause harm to Infirst within
this judicial district and because the harm suffered by Infirst within this judicial district flows
directly from such business conducted by Defendant.
7.
Venue in this judicial district is proper under 28 U.S.C. 1391(b), (c) and/or
1400(b) in that a substantial part of the events giving rise to the claims herein have taken place
and may still be taking place in this judicial district.
FACTS COMMON TO ALL COUNTS

8.
Infirst operates a pharmaceutical company which makes, sells, and offers for
sale a line of cough and cold suppressing products for children under the brand name Dr.
Cocoa.
9.
Dr. Cocoa Non-Drowsy Cough comprises cocoa, which contains the
chocolate flavoring ingredient theobromine, and the active ingredient Dextromethorphan with 1)
a recommended dose of 7.5 mg of Dextromethorphan every 6-8 hours for children ages 4 to
under 6 years of age and a maximum daily dose of 30 mg; 2) a recommended dose of 15 mg of
Dextromethorphan every 6-8 hours for children ages 6 to under 12 years of age and a maximum
daily dose of 60 mg; and 3) a recommended dose of 30 mg of Dextromethorphan every 6-8 hours
for children ages 12 to under 13 years of age and a maximum daily dose of 120 mg.
10.
Dr. Cocoa Daytime Cough and Cold comprises cocoa, which contains the
chocolate flavoring ingredient theobromine, and the active ingredient Dextromethorphan with 1)
a recommended dose of 5 mg of Dextromethorphan every 4 hours for children ages 4 to under 6
years of age and a maximum daily dose of 30 mg; 2) a recommended dose of 10 mg of
Dextromethorphan every 4 hours for children ages 6 to under 12 years of age and a maximum
daily dose of 60 mg; and 3) a recommended dose of 20 mg of Dextromethorphan every 4 hours
for children ages 12 to under 13 years of age and a maximum daily dose of 120 mg.
11.
Efforts to develop the Dr. Cocoa line of cough and cold suppressing products
commenced in 2010. The total cost of this development program is substantial and includes
significant costs of manufacturing product, conducting clinical trials, licensing royalties, and
patenting and trademark procurement and maintenance costs.
12.
Marketing support for the Dr. Cocoa line of cough and cold suppressing
products in the United States commenced in 2013 and to date the total amount spent is in excess
of $1.2 million.
13.
Commercial sales into the retail trade of the Dr. Cocoa line of cough and cold
suppressing products in the United States in 2014 currently stands at more than 300,000 units
with a unit price of $8.99.
14.
Dextromethorphan was approved by the Federal Drug Administration (FDA) in
1958 as an over-the-counter antitussive agent and can be sold directly to a consumer without a
prescription from a healthcare professional because the FDA has deemed that Dextromethorphan
is safe and effective for use by a consumer without the need of a physician's care.
15.
The marketing of cough suppressing products for children is a highly
competitive market that is extremely dependent on brand loyalty, such that damage to the
reputation of a brand can directly cause a loss of customers.
16.
Defendant makes, sells, and offers for sale a line of cough suppressing products
for children under the brand name Cocoa Cough.

17.
Incorporated into Cocoa Cough is cocoa, which contains the chocolate
flavoring ingredient theobromine, in admixture with inert, solid, or liquid carriers, additives
and/or auxiliary agents.
18.
Upon information and belief, Defendant regularly advertises, promotes, offers
its cough suppressing products for sale, and otherwise regularly transacts business in the United
State of America, including within the State of Delaware through its website
www.cocoacough.com. The unit price for its cough suppressing product is $8.99.
19.
On information and belief, Defendant further advertises and promotes its cough
suppressing products on a website blog called The Supplemental Blog at
thesupplementblog.com/2014/03/14/cocoa-cough-vs-dr-cocoa, where it provides a comparison of

its cough suppressing products for children with Infirsts Dr. Cocoa cough and cold suppressing
products and makes statements that are intended to mislead a potential customer into buying
Cocoa Cough instead of Dr. Cocoa.
DEFENDANT'S ACTS OF PATENT INFRINGEMENT
20.
Infirst is the owner, by assignment, of U.S. Patent No. 6,348,470 (the '470
Patent) issued February 19, 2002 and entitled "Antitussive Compositions" (copy attached as
EXHIBIT A). Infirst owns all right, title, and interest in, and has standing to sue for
infringement of the '470 Patent.
21.
The '470 Patent is directed to methods of stimulating mucociliary clearance to
alleviate irritable cough in a person by administering an effective amount of theobromine and/or

one of its salts optionally in admixture with inert, solid, or liquid carriers, additives and auxiliary
agents. Such method is used to treat cough.
22.
The '470 Patent was properly and duly issued by the United States Patent and
Trademark Office and is presumed to be valid.

23.
On August 18, 2014, Infirst, through counsel, notified Mr. Taylor Stauss and Mr.
Bren Ty McRae of Cocoa Cough via certified U.S. Mail and email of Infirst's patent. This letter
listed the '470 Patent as well as its Canadian counterpart covering cough suppressing products
comprising theobromine. This letter is attached as EXHIBIT B.
24.
This letter also notified Defendant that one or more claims of the '470 Patent can
be found to read on the Cocoa Cough line of cough suppressing products made, sold, offered
for sale and used by Defendant.
25.
As a result, Defendant has been on notice of the '470 Patent and acted despite an
objectively high likelihood that its actions constituted infringement of Infirst's valid patents. At
least for this reason, Cocoa Cough' s infringement is believed to be willful.
26.
On August 19, 2014, Defendant responded to Infirsts August 18, 2014 letter
denying its product infringe of the '470 Patent. This letter is attached as EXHIBIT C.
27.
On October 5, 2014, Infirst, through counsel, notified Mr. Bren Ty McRae of
Cocoa Cough via certified U.S. Mail and email that the rationale used for its non-infringement
analysis had no legal basis and that Defendants Cocoa Cough line of cough suppressing
products infringed the '470 Patent. This letter is attached as EXHIBIT D. At least for this
reason, Cocoa Cough' s infringement is believed to be willful.
28.
On October 7, 2014, Defendant responded to Infirsts October 5, 2014 letter
stating that it had no intention to discontinue the sale of Cocoa Cough. This letter is attached as
EXHIBIT E.
29.
Defendant has been and is infringing the '470 Patent under 35 U.S.C. 271(a) by
making, using, offering for sale, and selling the Cocoa Cough line of cough suppressing
products covered by one or more claims of the '470 Patent.
30.
The Cocoa Cough line of cough suppressing products made, offered for sale,
and sold by Defendant to third parties (i.e., the customers of Defendant) enable such third parties
to practice and make use of Cocoa Cough line of cough suppressing products. By providing
such products to customers along with the directions and training to allow such customers to
perform, practice and utilize the cough suppressing products, Defendant induces such customers
and third parties to practice the methods disclosed and claimed in '470 Patent and thereby cause
such customers and third parties to directly infringe one or more claims of at least the '470
Patent. Such products have been provided by Defendant with the knowledge that use of the
Cocoa Cough line of cough suppressing products as intended and instructed by Defendant
would result in infringement of the '470 Patent.
31.
As of July 25, 2014, Defendant has been offering for sale the Cocoa Cough
line of cough suppressing products using at least the website www.cocoacough.com hosted either
in the United States, Canada, or both. A print screen indicating these offers for sale is attached
as EXHIBIT F.
32.
The Cocoa Cough line of cough suppressing products made, sold and
offered for sale by Defendant are specially adapted for use in practicing the methods disclosed
and claimed in the '470 Patent and can only be used to practice methods disclosed and claimed in
the '470 Patent. As such, the Cocoa Cough line of cough suppressing products made, sold and
offered for sale by Defendant are specially adapted for use in practicing the methods disclosed
and claimed in the '470 Patent and have no substantial non-infringing use. Defendant has made,
sold and offered for sale the Cocoa Cough line of cough suppressing products with knowledge
of the '470 Patent and with knowledge that the Cocoa Cough line of cough suppressing
products are specially adapted for use in practicing the method claimed by the '470 Patent and
have no substantial noninfringing use.
33.
Defendant has been and is contributorily infringing the '470 Patent under 35
U.S.C. 271(c) by offering to sell or selling within the United States or importing into the
United States the Cocoa Cough line of cough suppressing products, or at least one component
thereof, which constitute a material part of the invention recited in the Claims of the '470 Patent,
knowing the same to be especially made or especially adapted for use in an infringement of such
patent.
DEFENDANT'S ACTS OF UNFAIR COMPETION AND FALSE ADVERTISING

34.
Infirst is the owner, by assignment, of U.S. Trademark Application 85/700,783
(783 Application) for the literal word mark DR. COCOA for goods and services pertaining to
pharmaceutical preparations for the treatment of respiratory cough, cold and pain relief,
containing cocoa and having a cocoa flavor (IC 005. US 006 018 044 046 051 052). A statement
of use was filed and accepted with the US Patent and Trademark Office on October 27, 2014.
35.
Infirst is the owner, by assignment, of U.S. Trademark Application 85/892,150
(150 Application) for the stylized word mark DR. COCOA for goods and services pertaining to
pharmaceutical preparations for the treatment of respiratory cough, cold and pain relief,
containing cocoa and having a cocoa flavor (IC 005. US 006 018 044 046 051 052). A statement
of use was filed and accepted with the US Patent and Trademark Office on September 2, 2014.
36.
Infirst owns all right, title, and interest in, and has standing to sue for
infringement, unfair competition, and false advertising of the 783 and 150 trademark
applications.
37.
In advertising, promoting and offering to sell its Cocoa Cough line of cough
suppressing products, Defendant has been and as is maintaining The Supplemental Blog that is
devoted principally to denigrating the safety and efficacy of Infirsts Dr. Cocoa line of cough
and cold suppressing products through the use of false and completely unsubstantiated
allegations and claims.
38.
In advertising, promoting and offering to sell its Cocoa Cough line of cough
suppressing products, Defendant has made numerous false and misleading representations
concerning Infirsts Dr. Cocoa line of cough and cold suppressing products, including the
following:
a.
Defendants mislead and continue to mislead consumers into thinking that
a side-by-side comparison was conducted when Defendants state

Two Companies have released a chocolate flavored cough syrup. Which
one works better? Here is how they stack up.
b.
Cocoa Cough is a clinically effective cough medication useful in treating cough in

children with the statements
Cocoa Cough is new for 2013 and is the first cough syrup to be flavored
with chocolate. Its main ingredients include cocoa powder, theobromine,
and buckwheat honey. Cocoa Cough is an all-natural anytime formula
that is safe for children 1 years old and up. It uses clinically proven
ingredients that are recommended for coughs. Cocoa Cough is a very
well thought out all-natural cough syrup and is available online at
cocoacough.com. It is perfect for the whole family.
c.
Defendants make unsubstantiated statement regarding the effectiveness of
cocoa powder in comparison to codeine with the statements

Pure Cocoa Powder: 100% cocoa powder recently has been shown to be
33% more effective than codeine for coughs in some clinical studies. It is
also a safe natural alternative to codeine.
d.
dextromethorphan is generally not recommended for the treatment of cough with the
statements
Dr. Cocoa is a new cough syrup for 2014 and its [sic] main ingredient is
dextromethorphan and Cocoa. Some people respond well to

dextromethorphan but it is generally not recommended since there are
more natural alternatives out there that are more effective such as
buckwheat honey which is found in Cocoa Cough.
e.
Infirsts Dr. Cocoa line of cough and cold suppressing products are unhealthy and
not safe for children with the statement
The one major complaint about Dr. Cocoa is that it does not contain
anything healthy besides cocoa powder.
f.
Defendants mislead and confuse and continue to mislead and confuse
consumers into thinking that its Cocoa Cough line of cough suppressing products
is superior to Infirsts Dr. Cocoa line of cough and cold suppressing products
containing the FDA approved API dextromethorphan, but then state
Disclaimer: Cocoa Cough is 100% natural and does not claim to treat or
cure any types of disease. It is a dietary supplement that may relieve
cough symptoms.
39.
The unambiguous message and necessary implication conveyed by Defendants
misrepresentation is that Infirsts Dr. Cocoa line of cough and cold suppressing products is
unhealthy, unsafe, ineffective and exceedingly inferior to Defendants Cocoa Cough line of
cough suppressing products.
40.
On October 5, 2014, Infirst, through counsel, notified Mr. Bren Ty McRae of
Cocoa Cough via certified U.S. Mail and email that Cocoa Coughs posting or publishing of the
comparison article on the website blog called The Supplemental Blog at
10
thesupplementblog.com/2014/03/14/cocoa-cough-vs-dr-cocoa constituted, among other things,

false advertising and false representation, and unfair competition in violation of Section 43(a) of
the United States Trademark Act, 15 U.S.C. 1125(a) and requested immediate removal of this
posting. This letter is attached as EXHIBIT D.
41.
On October 7, 2014, Defendant responded to Infirsts October 5, 2014 letter
stating that the Defendant had no intention of removing the post from thesupplementblog.com.
This letter is attached as EXHIBIT E.
42.
Upon information and belief, Defendants foregoing representations are
materially false and misleading.

43.
Upon information and belief, Defendants foregoing representations are
unsubstantiated and, upon information and belief, Defendant does not possess scientific evidence
to support the above representations challenging the safety and efficacy of dextromethorphan or
proving the superior efficacy of cocoa powder over codeine in suppressing cough.
44.
Upon information and belief, Defendants false and misleading representations
directed against Infirst and its Dr. Cocoa line of cough and cold suppressing products were
willful and malicious and with a deliberate intent to mislead consumers and cause injury to
Infirst.
45.
Upon information and belief, Defendants false and misleading representations
directed against Infirst and its Dr. Cocoa line of cough and cold suppressing products were
willful and malicious and intended to injure and trade upon the reputation of Infirst and its
products and thereby cause harm to Infirst.
46.
Upon information and belief, Defendants false and misleading statements as
aforementioned have directly injured Infirst, its reputation, and its goodwill, and, upon
11
information and belief, have caused lost sales.

COUNT I
Direct Patent Infringement
47.
Infirst restates and incorporates by reference paragraphs 1 through 33 above as
if fully re-stated herein.

48.
Defendant's activities and actions as-alleged in at least paragraphs 1-30 above
constitute direct infringement of the '470 Patent in violation of 35 U.S.C. 27l(a). For reasons
stated in at least paragraphs 23-28 above, such direct infringement by Defendant is believed to be
willful.
49.
Defendant's direct infringement, has injured and will continue to injure Infirst
unless and until the Court enters an injunction prohibiting further infringement and, specifically,
enjoining further manufacture, use, importation, sale and/or offer for sale of products or
technologies that fall within the scope of the '470 Patent claims.
COUNT II
Induced Patent Infringement
50.
Infirst restates and incorporates by reference paragraphs 1 through 33 above as
if fully re-stated herein.

51.
Defendant's activities and actions as alleged in at least paragraphs 1-30 and 32
above constitute induced infringement of the '470 Patent in violation of 35 U.S.C. 271(b). For
reasons stated in at least paragraphs 23-28 above, such induced infringement by Defendant is
believed to be willful.
52.
Defendant's induced infringement, has injured and will continue to injure Infirst
unless and until the Court enters an injunction prohibiting further infringement and, specifically,
12
enjoining further manufacture, use, importation, sale and/or offer for sale of products or
technologies that fall within the scope of the '470 Patent claims.
COUNT III
Contributory Patent Infringement
53.
Infirst restates and incorporates by reference paragraphs 1 through 33 above as if
fully re-stated herein.

54.
Defendant's activities and actions as alleged in at least paragraphs 1-30 and 33
above constitute contributory infringement of the '470 Patent in violation of 35 U.S.C. 27l(c).
For reasons stated in at least paragraphs 23-28 above, such contributory infringement by
Defendant is believed to be willful.
55.
Defendant's contributory infringement, has injured and will continue to injure
Infirst unless and until the Court enters an injunction prohibiting further infringement and,
specifically, enjoining further manufacture, use, importation, sale and/or offer for sale of
products or technologies that fall within the scope of the '470 Patent claims.
COUNT IV
Unfair Competition and False Advertising
56.
Infirst restates and incorporates by reference paragraphs 1 through 19 and 34-46
above as if fully re-stated herein.

57.
Upon information and belief, Defendant has knowingly disparaged Infirsts
goods, services, and business by false and/or misleading advertising and promotional statements,
and by misleading representations of fact and has knowingly created consumer confusion,
consumer mistake or misunderstanding, and/or deceived or mislead consumers about Infirsts
goods, services, and business.
13
58.
Defendants false and misleading advertising and promotional statements and
misrepresentations of fact regarding Infirsts goods, services, and business are material to
consumer purchasing decisions and constitute unfair competition and false advertising in
violation of 15 U.S.C. 1125(a).
59.
Defendants conduct has been and continues to be intentional and willful.
60.
As a direct and proximate result of Defendants conduct, Infirst has suffered
great and irreparable injury, and unless such conduct is enjoined, Infirst will continue to suffer
great and irreparable injury.
61.
Infirst has no adequate remedy at law.
62.
Infirst is entitled to a preliminary and permanent injunction against Defendant,
as well as other remedies available at law, including but not limited to compensatory damages,
treble damages, statutory damages, disgorgement, costs, and attorneys fees.
COUNT V
Consumer Fraud
63.

64.
The State of Delaware has an important interest in ensuring that persons and
entities doing business with Delaware residents comply with Delaware law and the false and
misleading statements of Defendant implicate the public interest.
65.
14

66.
consumer purchasing decisions and constitute unlawful consumer fraud in violation of Delaware
Consumer Fraud Act, 6 Del. 2531.
67.
68.
69.
70.
COUNT VI
Deceptive Trade Practices
71.

72.
The State of Delaware has an important interest in ensuring that persons and
entities doing business with Delaware residents comply with Delaware law and the false and
misleading statements of defendant implicate the public interest.
73.
15

74.
consumer purchasing decisions and constitute unlawful deceptive trade practices in violation of
Delaware Consumer Fraud Act, 6 Del. 2532.
75.
76.
77.
78.
COUNT VII
Common Law Unfair Competition
79.

80.
16
81.
consumer purchasing decisions and constitute unfair competition in violation of the common law
of Delaware.
82.
83.
As a direct and proximate result of Defendants conduct Infirst has suffered great
and irreparable injury, and unless such conduct is enjoined, Infirst will continue to suffer great
and irreparable injury.
84.
85.
COUNT VIII
Common Law False Advertisement
86.

87.
88.
17
consumer purchasing decisions and constitute false advertising in violation of the common law
of Delaware.
89.
90.
91.
92.
COUNT IX
Common Law Trade Libel
93.

94.
95.
consumer purchasing decisions and constitute trade libel in violation of the common law of
Delaware.
18
96.
97.
great and irreparable injury, and unless such conduct is enjoined, plaintiff will continue to suffer
98.
99.
COUNT X
Common Law Injury to Business Reputation
100.

101.
102.
consumer purchasing decisions and constitute injury to business reputation in violation of the
common law of Delaware.
103.
104.
19
105.
106.
COUNT XI
Common Law Unjust Enrichment
107.

108.
109.
consumer purchasing decisions and constitute unjust enrichment in violation of the common law
of Delaware.
110.
111.
20
112.
113.
PRAYER FOR RELIEF
WHEREFORE, Infirst asks this Court to enter judgment against Defendants and against
its subsidiaries, affiliates, agents, servants, employees and all persons in active concert or
participation with them, granting the following relief:
A.
A declaration, adjudgment or decree that Defendants aforesaid acts
constitute direct, contributory, and/or inducement of infringement of Infirsts '470 Patent in

violation of 35 U.S.C. 271(a)-(c); false advertising and false representation, and unfair
competition in violation of 15 U.S.C. 1125(a); consumer fraud in violation of the Delaware
Consumer Fraud Act, 6 Del. 2531; deceptive trade practices in violation of the Delaware
Consumer Fraud Act, 6 Del. 2532; and unfair competition, false advertisement, trade libel,
injury to business reputation, and unjust enrichment under the common law of the State of
Delaware;
B.
An award of damages adequate to compensate Infirst for the
infringement that has occurred, together with prejudgment interest from the date infringement of
the '470 Patent began;
C.
An award of increased damages as permitted under 35 U.S.C. 284;
D.
A finding that this case is exceptional and an award to Infirst of its
attorneys' fees and costs as may be appropriate under 35 U.S.C. 285;

E.
A grant of preliminary and permanent injunctions enjoining further
21
infringement, inducement and contributory infringement of the '470 Patent;

F.
A grant of preliminary and permanent injunctions enjoining Defendant
from making false or misleading statements concerning Infirst or its Dr. Cocoa line of cough
and cold suppressing products;
G.
from profiting from Infirsts mark or name;

H.
from competing unfairly with Infirst or trading upon the goodwill of Infirst;
I.
from publishing the comparison article on the website blog called The Supplemental Blog at
thesupplementblog.com/2014/03/14/cocoa-cough-vs-dr-cocoa or otherwise posting or displaying
such material at any other website or in any other media;
J.
An award of treble damages as provided by law;
K.
An award of exemplary damages as provided by law;
L.
An award of reasonable attorney fees and costs for this action as
provided by law;
M.
Pre-judgment interest calculated from the time of the first occurrence of
any infringing activity through and until entry of judgment;

N.
Post-judgment interest calculated from entry of a final judgment in this
matter until such time as the final judgment is fully satisfied; and
O.
Such other and further relief as this Court or a jury may deem proper and
just.
22
JURY DEMAND
Pursuant to Federal Rule of Civil Procedure 38(b), Infirst demands a trial by jury on all
issues presented in this Amended Complaint.
POTTER ANDERSON & CORROON LLP

OF COUNSEL:
By: /s/ Philip A. Rovner
Philip A. Rovner (#3215)
Jonathan A. Choa (#5319)
Hercules Plaza
P.O. Box 951
Wilmington, DE 19899
(302) 984-6000
provner@potteranderson.com
jchoa@potteranderson.com
Peter D. Weinstein
ONE3 IP MANAGEMENT, P.C.
1560-1 Newbury Rd, #327
Newbury Park, CA 91320
(805) 499-7305
Dean G. Stathakis
ONE3 IP MANAGEMENT
5405 Alton Parkway, Suite 5A, 764
Irvine, CA 92604
(949) 954-7988
Attorneys for Plaintiff InFirst Healthcare

Limited
Dated: November 20, 2014

1173012
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Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 1 of 23 PageID #: 32

IN THE UNITED STATES DISTRICT COURT

C.A. No. 14-1059-LPS/CJB

company number 08077285.

On information and belief, Defendant Cocoa Cough has a principal place of

Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 2 of 23 PageID #: 33

Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 3 of 23 PageID #: 34

FACTS COMMON TO ALL COUNTS

Dr. Cocoa Non-Drowsy Cough comprises cocoa, which contains the

Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 4 of 23 PageID #: 35

Dextromethorphan was approved by the Federal Drug Administration (FDA) in

The marketing of cough suppressing products for children is a highly

for children under the brand name Cocoa Cough.

Incorporated into Cocoa Cough is cocoa, which contains the chocolate

Upon information and belief, Defendant regularly advertises, promotes, offers

suppressing products on a website blog called The Supplemental Blog at

Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 5 of 23 PageID #: 36

thesupplementblog.com/2014/03/14/cocoa-cough-vs-dr-cocoa, where it provides a comparison of

The '470 Patent is directed to methods of stimulating mucociliary clearance to

alleviate irritable cough in a person by administering an effective amount of theobromine and/or

Trademark Office and is presumed to be valid.

Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 6 of 23 PageID #: 37

On October 5, 2014, Infirst, through counsel, notified Mr. Bren Ty McRae of

On October 7, 2014, Defendant responded to Infirsts October 5, 2014 letter

Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 7 of 23 PageID #: 38

Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 8 of 23 PageID #: 39

DEFENDANT'S ACTS OF UNFAIR COMPETION AND FALSE ADVERTISING

Infirst is the owner, by assignment, of U.S. Trademark Application 85/700,783

Infirst is the owner, by assignment, of U.S. Trademark Application 85/892,150

Case 1:14-cv-01059-LPS-CJB Document 7 Filed 11/20/14 Page 9 of 23 PageID #: 40

Defendants mislead and continue to mislead consumers into thinking that

a side-by-side comparison was conducted when Defendants state

Defendants mislead and continue to mislead consumers into thinking that

Cocoa Cough is a clinically effective cough medication useful in treating cough in

Defendants make unsubstantiated statement regarding the effectiveness of

cocoa powder in comparison to codeine with the statements

Defendants mislead and continue to mislead consumers into thinking that

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dextromethorphan and Cocoa. Some people respond well to

Defendants mislead and continue to mislead consumers into thinking that

Defendants mislead and confuse and continue to mislead and confuse

The unambiguous message and necessary implication conveyed by Defendants

On October 5, 2014, Infirst, through counsel, notified Mr. Bren Ty McRae of

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thesupplementblog.com/2014/03/14/cocoa-cough-vs-dr-cocoa constituted, among other things,

On October 7, 2014, Defendant responded to Infirsts October 5, 2014 letter

Upon information and belief, Defendants foregoing representations are

materially false and misleading.

Upon information and belief, Defendants foregoing representations are

Upon information and belief, Defendants false and misleading representations

Upon information and belief, Defendants false and misleading representations

Upon information and belief, Defendants false and misleading statements as

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information and belief, have caused lost sales.

Infirst restates and incorporates by reference paragraphs 1 through 33 above as

if fully re-stated herein.

Defendant's activities and actions as-alleged in at least paragraphs 1-30 above

Infirst restates and incorporates by reference paragraphs 1 through 33 above as

if fully re-stated herein.

Defendant's activities and actions as alleged in at least paragraphs 1-30 and 32

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Infirst restates and incorporates by reference paragraphs 1 through 33 above as if