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Ann-Martha Andrews
State Bar No. 7585
E-mail: AAndrews@LRRLaw.com
LEWIS ROCA ROTHGERBER LLP
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996
Tel: 702.949.8200
Fax: 702.949.8398
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Jason M. Kerr
State Bar No. 7773
E-mail: jasonkerr@ppktrial.com)
PRICE PARKINSON & KERR
5742 W. Harold Gatty Dr.
Salt Lake City, Utah 84116
Telephone: (801) 530-2900
Facsimile: (801) 530-2957
Attorneys for Plaintiff
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DISTRICT OF NEVADA
FITCO, LLC, a Utah limited liability company,
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Plaintiff,
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CASE NO.
INTRODUCTION
Defendant operates a website that uses, without authorization, Plaintiffs
trademarked and copyrighted images and a verbatim copy Plaintiffs copyrighted
advertisements in order to promote Defendants own product. Defendants brazen theft of
Plaintiffs intellectual property even includes using the photograph of Plaintiffs
endorsement partner Jennifer Lopez, the famous actor, television personality, and singer.
Defendant stole Plaintiffs intellectual property in order to drive traffic to its Website and
increase its sales.
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under its BodyLab brand. Plaintiff has invested substantial time, money, and effort into
developing and marketing its BodyLab brand and related products. Plaintiff operates a
website on which it posts information about the health and fitness benefits of the
BodyLab products and other related health and fitness information. Plaintiff recently
posted an article on its BodyLab website that touts the health benefits of artichokes,
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Plaintiff develops, manufactures, and markets various health and fitness products
Defendant sells a product called ARTY Artichoke Water (Arty Water) that,
according to Defendants website, contains artichokes. Defendants website uses
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from Plaintiffs website and actual images of Plaintiffs trademarks, in order to promote
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Defendants own Arty Water product. Defendants website leads an unwitting internet
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browser to believe that Plaintiffs intellectual property and branding associated with
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Plaintiffs BodyLab brand are associated in some way with Defendants Arty Water.
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Arty Water product, an unwitting consumer is thus led to believe that the Arty Water
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carefully-developed intellectual property in order to promote its own Arty Water product
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that has nothing to do with Plaintiffs proprietary BodyLab brand. Defendants actions
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violate the Lanham Act, the Copyright Act, and various common law doctrines and entitle
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and existing under the laws of the State of Utah. Its principal place of business is located
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at 5742 West Harold Gatty Drive in Salt Lake City, Utah. It is the owner of the intellectual
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belief, a corporation organized and existing under the laws of Texas. On information and
belief, it sells, warehouses, and ships this product from a location in Clark County,
Nevada.
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2.
Subject matter jurisdiction over this action is conferred upon this Court by 28
pursuant to 28 U.S.C. 1367, in that the state law claims are integrally related to the
federal claims and arise from a common nucleus of operative facts, such that the resolution
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of all claims herein is in the interests of judicial economy. The Court also has subject
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matter jurisdiction pursuant to 28 U.S.C. 1332 because there is complete diversity and
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The Court has personal jurisdiction over Defendant pursuant to the Nevada
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Long-Arm Statute, Nev. Rev. Stat. 14.065 because Defendant has (a) transacted business
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in this State, and (b) engaged in tortious activity causing injury in this state. Specifically,
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the Defendant sells, warehouses, and ships its Arty Water product sold through
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scientific evidence.
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and other data and are formulated to be safe and effective. They are formulated especially
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for womens bodies. In addition, Plaintiff invests substantial sums to assure that its
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BodyLab products are manufactured to very high standards so that these products meet
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or exceed the quality and other characteristics of the compounds identified in the scientific
product it develops and brings to market it offers a 100% money-back guarantee. All a
consumer need do if dissatisfied with the product for any reason is, in accordance with the
guarantee, return the unused portion for a full refund. Plaintiff always honors and fulfills
its 100% money-back guarantee in accordance with the terms of that guarantee.
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(www.bodylab.com), to retailers that market and sell to consumers throughout the United
States, and through independent distributors located throughout the United States.
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media in national circulation, on the BodyLab website, and on third party websites.
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Plaintiff uses its BodyLab website not only to promote BodyLab branded
products but also to promote general health and fitness and healthy lifestyle in general.
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Plaintiff markets and sells its BodyLab products under the trademark
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BodyLab through such prestigious retail outlets as Walgreens, Wal-Mart, Kohls, CVS
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and others.
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Plaintiff has expended a great deal of time, effort, and money to market,
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well-known celebrity who promotes health and fitness among her many fans. Among
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other things, Plaintiff uses copyrighted images of Jennifer Lopez to promote the
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BodyLab brand.
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Holdings, LLC, which, in turn, acquired the rights to this trademark from Western
Holdings, LLC. Plaintiff is the current, active, and exclusive licensee of all BodyLab
trademarks, trade dress, and copyrights. As a consequence, Plaintiff is the proper party in
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products.
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uniqueness.
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Trade dress for the BodyLab products either has acquired a secondary
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required.
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Closely associated with the BodyLab brand and trademark is the trademark
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For Women By Women. This trademark appears alongside the BodyLab mark in
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many of Plaintiffs publications, including its website, to promote the BodyLab brand
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and products.
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The For Women By Women trademark was adopted for use in interstate
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from JBCO IP Holdings, LLC. Plaintiff is the current, active, and exclusive licensee of all
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Plaintiff has expended a great deal of time, effort, and money developing its
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intellectual property rights in connection with the BodyLab brand, including the
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trademark, packaging trade dress, copyrighted label, copyrighted package insert, and
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copyrighted advertisements and articles that have appeared in numerous newspapers and
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Defendants Website
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Website).
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Attached hereto as Exhibit A is a true and correct copy of the main page (the
Main Page) for the Website (the first page an internet browser sees upon going to the
Website).
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Also on the News Page is an image of Jennifer Lopez, together with another
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Scrolling down the News Page leads to a post dated 19 Nov 2014 and
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Clicking on the News link at the top of the Main Page takes one to the
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Plaintiff holds the copyright and trademark right to this image of Jennifer
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Lopez.
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Artichoke Your Way Into Smaller Jeans title, or a Read More link takes one to the
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page a copy of which is attached hereto as Exhibit C (the Artichoke Article Page).
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As of December 24, 2014, a browser can also reach the Artichoke Article
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Page by clicking on a Artichoke Your Way Into Smaller Jeans link near the top of the
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The Artichoke Article Page also contains a verbatim copy of an article for
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At the bottom of the Artichoke Article Page is the statement: You can buy
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The News Page of the Website displays at least two images of the
BodyLab trademark, at least two images of the For Women By Women trademark,
and one image of Jennifer Lopez (in which she is promoting the BodyLab brand) to
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The Artichoke Article Page of the Website displays at least two images of
the BodyLab trademark, at least two images of the For Women By Women trademark,
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and one image of Jennifer Lopez (in which she is promoting the BodyLab brand) to
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The Artichoke Article Page of the Website also contains a verbatim copy of
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an article entitled Artichoke Your Way Into Smaller Jeans posted on Plaintiffs own
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Exhibit D.
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images, articles, advertisements, or any other intellectual property associated with the
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BodyLab brand.
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Defendant has no right to market the BodyLab brand in any way on its
Website.
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intellectual property in any way to promote its own products, including the Arty Water
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product.
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Plaintiff is the current, active, and exclusive licensee of all BodyLab and
For Women By Women valid and legally protected trademarks, trade dress, and
copyrights. The trademarks are active, valid and have not been revoked or canceled. In
addition, the trademarked terms are arbitrary words chosen by Plaintiff as its trademarks
due to their uniqueness and Plaintiffs trade dress either has acquired a secondary meaning
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such, BodyLab and For Women By Women are protectable service marks.
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Plaintiffs consent and Defendants use is likely to deceive, cause confusion, or result in
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mistake as to the origin, authenticity, genuineness and quality of BodyLab and For
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materially diminished the value of Plaintiffs trademarks and copyright rights, and
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Plaintiffs trademarks, trade names and copyright rights, in violation of 15 U.S.C. 1114
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and 1125(a).
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include but are not limited to lost sales of its products, trademark infringement and
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dilution, and damage to Plaintiffs existing and potential business relations. In addition,
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Plaintiff is the licensee of the copyright in the BodyLab and For Women
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include but are not limited to lost sales, trademark and copyright infringement and dilution,
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full herein.
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and sale of its goods in interstate commerce, made or contributed to the making of
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deceive purchasers and potential purchasers into believing that Defendants products and
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services are the same as Plaintiffs products and services and that Plaintiffs BodyLab
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and For Women By Women products are available for purchase from Defendant.
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Defendants acts constitute unfair competition and passing off, and/or induce
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passing off have led to, among other things, initial interest confusion in consumers
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passing off have deceived and, unless restrained, will continue to deceive the public,
including consumers and retailers, and have injured and unless constrained will continue to
injure plaintiffs and the public, including consumers and retailers, causing damages to
Plaintiff in an amount to be determined at trial and other irreparable injury to the goodwill
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willful, intentional and egregious and make this an exceptional case within the meaning of
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Plaintiff has no adequate remedy at law to compensate it for all the damages
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(Unjust Enrichment)
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full herein.
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Defendant has benefited from the use of Plaintiffs name, reputation, and
damages.
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(Injunctive Relief)
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full herein.
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Lanham Act.
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and retailers, unless the Court enjoins Defendant from advertising, marketing, packaging,
labeling, or purporting to sell any product that it in fact has no intention to sell or from
engaging in any other false advertising with regard to Plaintiffs intellectual property and
products or engaging in any other unfair competition based upon false and misleading or
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(Declaratory Relief)
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full herein.
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entitled to and hereby moves the Court for a judgment declaring that:
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otherwise misleading.
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advertising.
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c.
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that Defendant is authorized to sell Plaintiffs products and/or that the public may in
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e.
Defendant should pay Plaintiff its attorneys fees and costs incurred in
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A.
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employees, and attorneys, and upon those persons in active concert or participation with it
who receive actual notice of the injunction by personal service or otherwise, enjoining and
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B.
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and all other uses of Plaintiff intellectual property from the Website.
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determined at trial.
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Judgment on the Third (Unfair Competition under the Lanham Act) claim for
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Judgment on the Third (Unfair Competition under the Lanham Act) claim for
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relief awarding Plaintiffs reasonable attorneys fees in this action, pursuant to 15 U.S.C.
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1117.
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G.
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Judgment on all claims awarding Plaintiffs costs and attorneys fees in this
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K.
L.
Such other relief as the Court may deem just and equitable.
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action.
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Plaintiff demands a trial by jury of all matters that may be tried by a jury.
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Jason M. Kerr
PRICE PARKINSON & KERR
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CERTIFICATE OF SERVICE
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I hereby certify that on January 16, 2015, I electronically transmitted the attached
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document to the Clerks Office using the CM/ECF System for filing.
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/s/ M. McGrath
LEWIS ROCA ROTHGERBER LLP
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