UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION INNOVATION VENTURES, L.L.C., d/b/a LIVING ESSENTIALS, a Michigan limited liability company, Case No. v. Plaintiff, Hon. ASPEN FITNESS PRODUCTS, INC. d/b/a ON GO ENERGY d/b/a BEV LABS d/b/a ON GO ENERGY SHOT, a Michigan corporation, ON GO ENTERPRISES LLC, a Michigan limited liability company, ON GO INTERNATIONAL LLC, a Michigan limited liability company, ON GO GAMER, LLC, a Michigan limited liability company, ASPEN MEDIA, LLC, a Michigan limited liability company, and DERRICK E. GEORGE, an individual, Defendants. Mark T. Boonstra (P36046) Jessica A. Sprovtsoff (P70218) MILLER CANFIELD PADDOCK and STONE, P.L.C. 101 North Main, Seventh Floor Ann Arbor, MI (734) boonstra@millercanfield.com Attorneys for Plaintiff COMPLAINT AND JURY DEMAND Plaintiff Innovation Ventures, L.L.C. d/b/a Living Essentials ( Living Essentials or Plaintiff ) files this Complaint against Defendants Aspen Fitness Products, Inc., d/b/a On Go Energy, d/b/a Bev Lab, d/b/a On Go Energy Shot, a Michigan corporation ( Aspen Fitness ), On Go Enterprises LLC, On Go International LLC, On Go Gamer, LLC, Aspen Media, LLC (collectively, On Go Energy ) and Derrick E. George, an individual ( George ) (all collectively, Defendants ).

2 PRELIMINARY STATEMENT OF DISPUTE 1. Plaintiff Living Essentials, based in Farmington Hills, Michigan, markets and distributes the remarkably successful 5-hour Energy liquid dietary supplement. 5-hour Energy can be found in retail stores, convenience stores and health clubs throughout the United States and Canada. Sales of 5-hour Energy have been phenomenal. Plaintiff distributes 5-hour Energy through a confidential list of nationwide distributors and retailers. The competition is far behind, not just in sales and customer acceptance of product effectiveness, but also in efficient distribution throughout the United States and Canada. 2. This is an action for damages and injunctive and other relief, asserting various statutory and common law claims against Defendants, including: (1) direct copyright infringement; (2) contributory copyright infringement; (3) trademark infringement; (4) Lanham Act (unfair competition); (5) Lanham Act (anti-dilution); (6) misappropriation of Plaintiff s trade secrets and confidential business information; (7) common law unfair competition; and (8) common law unjust enrichment. 3. These claims arise from Defendants wrongful acquisition and use of Plaintiff's trade secret and other confidential information, and infringement of Plaintiff s copyright and trademark. Defendants misappropriated the trade secret information, copyrighted work and trademark for their own economic benefit to directly compete with Plaintiff and obtain more advantageous pricing from Plaintiff s suppliers, distributors, and customers. 4. Defendants wrongfully acquired Plaintiffs trade secrets and other confidential information from non-party Kevin Zwierzchowski ( Zwierzchowski ). Zwierzchowski was employed as Plaintiff s controller/operations manager from March 2006 until approximately September Plaintiff subsequently learned that Zwierzchowski had wrongfully retained Plaintiff s most confidential information and trade secrets (including, for example, its product 2

3 formulas, and cost and pricing information, and supplier and vendor contact lists) and, without authorization, had shared it with third parties including a direct competitor of Plaintiff, Defendants George and his On Go Energy family of companies. 5. Defendants George and On Go Energy have acted to acquire Plaintiff s trade secret and confidential information with the knowledge that, at the time of this acquisition from Zwierzchowski (Plaintiff s former employee), Zwierzchowski was not authorized to reveal these trade secrets, was not an agent of Plaintiff s, and under the circumstances, the information could only have been stolen or misappropriated or obtained or converted from Plaintiff s computer system without authorization. Defendants wrongfully obtained, received, and paid for that information after Zwierzchowski downloaded, uploaded, duplicated, or otherwise replicated documents containing Plaintiff s trade secrets without Plaintiff's authorization 6. Possession of Plaintiff s trade secrets and other confidential information, including information related to its vendors, its pricing structure and its confidential formulas for its product, makes it possible, and has already made it possible, for Defendants to compete unfairly with Plaintiff. 7. Plaintiff s copyright claims are based upon Defendants printing, publishing, marketing, distributing and selling products featuring a text that is virtually identical to Plaintiff s copyright-protected Caution label, without any permission, license, or other authorization from Living Essentials. 8. Plaintiff s trademark claims are based upon Defendants sale and/or offering for sale a competing product within the same channels of trade while using a mark that is confusingly similar to Plaintiff s registered trademark. 9. Plaintiff understands that Zwierzchowski, Defendant George (a licensed attorney) and Defendant George s On Go Energy family of companies have been the subject of an ongoing 3

4 criminal investigation by the Federal Bureau of Investigation ( FBI ), as a result of the actions described in this Complaint. 10. At the request of the FBI, and so as not to interfere with a pending criminal investigation, Plaintiff has deferred until now the filing of these claims, and additionally entered into a tolling agreement with Zwierzchowski and, pending the FBI investigation, voluntarily dismissed without prejudice a previously-filed lawsuit against Zwierzchowski (described below), while continuing in full force and effect the terms of the Preliminary Injunction that was entered in that lawsuit. JURISDICTIONAL ALLEGATIONS 11. Plaintiff Living Essentials is a Michigan company created by and under the laws of the State of Michigan, and headquartered in the City of Farmington Hills, County of Oakland, State of Michigan. 12. Defendant Aspen Fitness Products, Inc., is a Michigan corporation doing business in the City of Birmingham, Oakland County, Michigan, with a registered address of 330 East Maple Road, #286, Birmingham, Michigan Defendant On Go Enterprises LLC is a Michigan limited liability company doing business in the City of Birmingham, Oakland County, Michigan, with a registered address of 330 East Maple Road, #286, Birmingham, Michigan Defendant On Go International LLC is a Michigan limited liability company doing business in the City of Birmingham, Oakland County, Michigan, with a registered address of 330 East Maple Road, #286, Birmingham, Michigan Defendant On Go Gamer LLC a Michigan limited liability company doing business in the City of Birmingham, Oakland County, Michigan, with a registered address of 330 East Maple Road, #286, Birmingham, Michigan

5 16. Defendant Aspen Media, LLC is a Michigan limited liability company doing business in the City of Birmingham, Oakland County, Michigan, with a registered address of 330 East Maple Road, #286, Birmingham, Michigan Defendant Derrick E. George is an individual and licensed attorney in Michigan, with a business address of 330 East Maple Road, #286, Birmingham, Michigan This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331, 1338, the Copyright Act of 1976 (17 U.S.C. 101 et seq.) and the Federal Trademark Act (15 U.S.C et. seq.) (the Lanham Act of 1946). The Court s supplemental jurisdiction extends to the state law claims pursuant to 28 U.S.C Venue of this action is proper in this Court under 28 U.S.C. 1391(b) because all Defendants reside and conduct business in this judicial district, and 28 U.S.C This matter seeks equitable relief and monetary damages, plus costs, interest, and attorney fees. COMMON ALLEGATIONS 21. Plaintiff incorporates each of the foregoing paragraphs by reference. 22. Through this litigation, Plaintiff Living Essentials seeks to redress and restrain Defendants illegal, malicious, tortious and improper access to and possession and use of Plaintiff s confidential and proprietary information, including trade secrets and other sensitive business materials, as well as for their acts of copyright and trademark infringement. 23. Through this litigation, Plaintiff, Living Essentials seeks monetary damages consisting of the greater of harm or damage caused to Plaintiff Living Essentials by Defendants use of its trade secrets and other confidential information, and/or benefits realized therefrom and statutory damages, including attorneys fees, pursuant to the Copyright Act of 1976 and the Lanham Act of

6 5-hour Energy 24. Living Essentials develops and markets liquid dietary supplements including, without limitation, the remarkably successful energy shot known as 5-hour Energy ( 5-hour Energy or the Product ). 25. Living Essentials carefully guards its proprietary information and trade secrets, which are critical to the success of its business. 26. Living Essentials Products include the well-known mark that is generally referred to as Running Man as shown below: 27. Living Essentials is the owner of U.S. Trademark Registration Number 3,698,044 (the 044 Registration ) for Running Man. A copy of the U.S. Trademark Registration Certificate is attached hereto as Exhibit A. 28. Since as early as 2004, Living Essentials 5-hour Energy products bearing the Running Man mark have been marketed and sold throughout the country and in Canada through Plaintiff's nationwide network of customers and distributors. 29. Sales of Living Essentials product line bearing the Running Man mark since 2004 have amounted to well over 700 million units sold. Further, Living Essentials has spent over $100 million dollars in advertising and promoting its Products bearing the Running Man mark. Living Essentials has an exceedingly valuable goodwill established in the mark identified in the 044 Registration and this mark is inherently distinctive and/or has acquired distinctiveness in the marketplace as a trademark. 6

7 30. Living Essentials product line further includes an original literary work, entitled Caution label. 31. Living Essentials owns U.S. Copyright Registration Number TX for the Caution label. A copy of the U.S. Copyright Registration Certificate is attached hereto as Exhibit B. The copyrighted work reads as follows: CAUTION: Contains about as much caffeine as a cup of coffee. Limit caffeine products to avoid nervousness, sleeplessness, and occasionally rapid heartbeat. You may experience a Niacin Flush (hot feeling, skin redness) that lasts a few minutes. This is caused by Niacin (Vitamin B3) increasing blood flow near the skin. 32. Living Essentials has devoted significant energy and resources in developing, marketing and protecting its Products bearing the Running Man trademark and Caution label copyright. Plaintiff's Former Controller/Operations Manager 33. Zwierzchowski was once part of Living Essentials efforts to promote and sell 5- hour Energy. Zwierzchowski served as Living Essentials controller/operations manager from March 2006 until September 2007, when his employment ended. 34. While employed with Living Essentials, Zwierzchowski s duties and responsibilities were on the financial end, to do all the financial accounting and handle all the accounts receivable, accounts payable, and also handle all operations... handle all shipping, receiving, coordinating with vendors, making sure the products were coming in and making sure the products were going out, and that kind of stuff. As controller/operations manager, Zwierzchowski was responsible for Living Essentials day-to-day operations and was responsible for maintaining and overseeing the financial aspects of the business. Zwierzchowski had authority to make contracts for, and bind Living Essentials for, goods and services. In short, as controller and operations manager, Zwierzchowski was charged with the highest level of 7

8 responsibility and acted in a fiduciary capacity, with fiduciary responsibilities, such as having a duty of loyalty to Living Essentials. As a necessary element of his employment, Living Essentials permitted Zwierzchowski access to and use of copyrightable works and trade secrets solely for the purpose of carrying out his responsibilities on behalf of and for the benefit of Living Essentials. 35. In his capacity as controller/operations manager, Zwierzchowski had access to Living Essentials formulas and recipes for 5-hour Energy liquid supplements. He knew these documents and the information contained in them were highly confidential, and that Plaintiff regarded and treated them as highly confidential. 36. Living Essentials CEO told Zwierzchowski that a very limited number of employees actually knew or had access to the formulas, stating: Hold these tight, only a certain number of people can see these. Zwierzchowski knew that these documents and this information were not to be shared outside of Living Essentials, including with the general public or any third party. 37. Zwierzchowski converted Living Essentials property for his own use, shortly before his termination, probably with the knowledge or belief that he was about to be terminated, by transferring certain Living Essentials trade secrets by to his home account. Plaintiff commenced suit in the Oakland County Circuit Court, State of Michigan, Case No CZ, against Zwierzchowski for his theft of Plaintiff's confidential information and trade secrets (the Oakland County Lawsuit ). 38. The facts set forth in this Complaint were discovered by Plaintiff through deposition testimony given in October 2008 by Zwierzchowski in the Oakland County Lawsuit. 39. In that deposition, Zwierzchowski revealed, among other things, that he had retained Plaintiff's highly confidential and non-public information (including the formulas for the 8

9 highly successful 5-hour Energy supplements). He also testified that he knew from Plaintiff's CEO that the information and documents were highly confidential and that only a few persons knew of them. During the Oakland County Lawsuit, Zwierzchowski was ordered to give his personal laptop to Plaintiff to allow for an expert to perform an inspection to see if Zwierzchowski had retained Plaintiff s trade secrets and confidential information. The inspection demonstrated and confirmed that Zwierzchowski had retained Plaintiff s highly confidential information and trade secrets. 40. Zwierzchowski does not now have, nor has he ever had, any right, title or interest in that information, yet he wrongly and intentionally accessed Living Essentials computer without authorization, or exceeding his authorization while an employee, and obtained those documents and information and stored them on his personal laptop computer. 41. Upon information and belief, the FBI has been investigating Zwierzchowski, George, and On Go Energy relative to these matters. At the request of the FBI, and so as not to interfere with a pending criminal investigation, Plaintiff has deferred until now the filing of these claims, and additionally entered into a tolling agreement with Zwierzchowski and, pending the FBI investigation, voluntarily dismissed without prejudice the Oakland County Lawsuit, while continuing in full force and effect the terms of the Preliminary Injunction entered in the Oakland County Lawsuit. The On Go Energy Family 42. Upon information and belief, Defendant Aspen Fitness Products, Inc. develops and markets liquid dietary supplements including, without limitation, a liquid energy supplement. A direct competitor of Plaintiff s, Aspen Fitness was formed in

10 43. Upon information and belief, Defendant Derrick E. George is the founder, owner, and CEO of Aspen Fitness, as well as of all other members of the On Go Energy family of companies. 44. Upon information and belief, Defendant On Go Enterprises LLC was formed in 2011, ostensibly as a holding company, and is an affiliate entity or a subsidiary of Aspen Fitness. 45. Upon information and belief, Defendant On Go International LLC was formed in 2009, and is an affiliate entity or a subsidiary of Aspen Fitness, in part marketing Aspen Fitness s products internationally through social networking sites under the name Ongo Peru. 46. Upon information and belief, Defendant On Go Gamer LLC was formed in 2009, and is an affiliate entity or a subsidiary of Aspen Fitness. 47. Upon information and belief, Defendant Aspen Media LLC was formed in 2010, and is an affiliate entity or a subsidiary of Aspen Fitness. 48. Living Essentials and On Go Energy are direct competitors in the energy supplement market, marketing similar products to the same potential customers. 49. On Go Energy admits that it is a competitor of Plaintiff s, and markets its product as the equivalent of Plaintiff s product, but claims it has better flavor. 50. As is set forth in greater detail below, Defendants On Go Energy and George wrongly and without authorization acquired and purchased Living Essentials confidential information and trade secrets from Zwierzchowski. 51. Defendants On Go Energy and George also sell and/or offer for sale their competing products using the design of a silhouetted person depicted in an athletic pose that violates Living Essentials trademark rights to the Running Man 044 Registration. Images of Defendants competing products bearing the design at issue are shown below and in Exhibit C: 10

11 52. Defendants competing product also includes a label that violates Plaintiff s copyright and makes unauthorized use of Plaintiff s literary work. The offending portion of Defendant s product label which is virtually identical to the corresponding portion of Plaintiff s copyrighted work (Exhibit B) appears below and is attached as Exhibit D: 11

12 53. A side-by-side comparison of Plaintiff s copyrighted Caution label, and Defendants virtually identical and offending Caution label appears below and is attached as Exhibit E: 12

13 FBI Investigation 54. Upon information and belief, the FBI has been investigating Zwierzchowski, George, and On Go Energy relative to these matters. 55. At the request of the FBI, and so as not to interfere with a pending criminal investigation, Plaintiff has deferred until now the filing of this Complaint, and additionally entered into a tolling agreement with Zwierzchowski and, pending the FBI investigation, voluntarily dismissed without prejudice the Oakland County Lawsuit, while continuing in full force and effect the terms of the Preliminary Injunction entered in the Oakland County Lawsuit. 13

14 Defendants Unauthorized Access and Misappropriation of Plaintiff's Trade Secrets & Copyrighted Work. 56. Zwierzchowski testified in the Oakland County Litigation that, after the termination of his employment with Plaintiff, On Go Energy contacted him, purportedly in connection with a job offer, and set up several meetings between George and himself in January and February At these meetings between George and Zwierzchowski, Zwierzchowski shared with him Living Essentials confidential vendor list (which included information not typically known to all in the industry and was accumulated and compiled by Living Essentials over years worth of business and networking, and after spending considerable sums of money in the acquisition and accumulation of such lists) and trade secret formulas. The vendor list identified the names of Living Essentials nationwide customer base, including retailers and distributors, as well as actual volume of sales to those customers, all sorted by products. George reviewed this information and took a lot of notes despite there being the word confidential on the top of the documents. 58. Zwierzchowski not only shared certain Living Essentials trade secrets with On Go Energy, he permitted Defendant George to upload them from Zwierzchowski s laptop onto a so-called stick drive or thumb drive. George and Zwierzchowski then used this information to try and get better pricing for [George] from CNL [a competitor of Living Essentials based in Texas]. George even used Zwierzchowski s services and confidential information at meetings with CNL because Mr. George was trying to negotiate better pricing from CNL for his --- the manufacture of his product. 59. Zwierzchowski acknowledged that he knew these formulas were confidential and that Living Essentials did not want those formulas shared outside of the company. However, he 14

15 disclosed the information to Defendants On Go Energy and George anyway because he was looking for a job and it was information [he] had in his possession and [he] showed it to him. 60. While On Go Energy did not, in fact, offer Zwierzchowski employment at that time, it paid Zwierzchowski $1,000-$2,000 in connection with his consultation, through which On Go Energy obtained Plaintiff's trade secret information. 61. Living Essentials has invested a great deal of time, effort, and money to create intellectual property, trade secrets and proprietary business information necessary to secure and maintain an economic advantage in a highly competitive market. Such information includes information regarding Living Essentials distributors, price lists, pricing strategy, packaging strategy, packaging manufacturers, market data, sales, training manuals and procedures, product development, product distribution, marketing plans, product information and formula, Living Essentials methods and operations, and other information that Living Essentials considered confidential. 62. Living Essentials makes these trade secrets available, on a limited basis, only to certain of its employees for the purpose of performing their responsibilities on behalf of and for the benefit of Living Essentials. 63. Living Essentials has no knowledge of On Go Energy s trade secrets or confidential information, including a comprehensive list of its distributors, price lists, pricing strategy, packaging strategy, packaging manufacturers, market data, sales, training manuals and procedures, product development, product distribution, marketing plans, product information or formulae. 64. Defendants possession and use of Living Essentials misappropriated trade secrets and other intellectual property (copyright and trademark) gives On Go Energy an unfair advantage in competition with Living Essentials. 15

16 65. Living Essentials formulations for its liquid energy supplements, its compilations of information about vendors and customers, its marketing and packaging programs, devices, methods, techniques and processes and the trade secrets were all things from which it derived independent economic value because they were not generally known to, and not readily ascertainable by, other persons who could obtain economic value from their disclosure or use. 66. Living Essentials made efforts that were reasonable under the circumstances to maintain the secrecy of its trade secrets. 67. Living Essentials limited its dissemination of its trade secrets, particularly, its financial and customer related information and its formulations for liquid energy supplements, only to those with a need to know that information within the company. The few persons to whom the trade secrets were disclosed were told to hold the information close or were otherwise instructed in a way that any reasonable person would have known and understood that the information was regarded as secret, economically valuable and not to be disclosed to others. 68. Zwierzchowski acknowledged at an October 13, 2008 deposition that, after receiving the formulas for 5-hour Energy products, he was told by Living Essentials CEO to hold them tight. The formulas that Zwierzchowski expropriated from Living Essentials are contained in a document referred to in previous litigation as Exhibit Deposition Exhibit 2 indicated on its face that the information contained in it was confidential, as acknowledged by Zwierzchowski. 70. Defendants used Living Essentials trade secrets, copyright and trademark for the benefit of On Go Energy without Living Essentials' authorization. 1 Deposition Exhibit 2 is not attached here because attaching it would disclose trade secrets, which would defeat the purpose of this litigation. 16

17 71. On Go Energy s formulations for its energy drinks are trade secrets and not generally known, widely available, or broadly disseminated, as On Go Energy derives economic benefit from those formulations. 72. One indication of On Go Energy s efforts to keep its formulations trade secrets is that Zwierzchowski never learned the details of the ingredients for the On Go Energy product. 73. At the time Living Essentials trade secrets were disclosed to Defendant George, he, and through him, On Go Energy, knew or had reason to know that their knowledge of the trade secrets was derived from or through a person who had: (1) utilized improper means to acquire them; (2) acquired them under circumstances giving rise to a duty to maintain their secrecy or limit their use; and (3) a duty to Living Essentials to maintain their secrecy or limit their use. In short, Defendants knew that their accessing Zwierzchowski's laptop to obtain Living Essentials' trade secrets was improper and without authorization. 74. At the time Defendants acquired Living Essentials trade secrets they knew or had reason to know that the trade secrets were acquired by an improper means. 75. Theft of trade secrets is a felony under 18 U.S.C and, by definition, is improper. 76. Infringement of a registered copyright is punishable as a felony under 18 U.S.C In fact, George of On Go Energy is an attorney with a license to practice law in the State of Michigan and whose firm holds itself out publicly as being experienced in the areas of Trademark/Copyright law. See, Exhibit F. He is certainly aware that his conduct was in violation of federal and state criminal and civil laws. 17

18 78. Nonetheless, Defendants acquired and received, and downloaded, uploaded, duplicated or otherwise replicated, documents containing Living Essentials trade secrets without the authorization of Living Essentials. 79. Defendants received, currently possess and bought Living Essentials trade secrets from Zwierzchowski, a person they knew, at the time of their acquisition of Living Essentials trade secrets, was not authorized to reveal them, was not an agent of Living Essentials, and that the information could only have been stolen or appropriated or obtained or converted without authorization. 80. Living Essentials trade secrets, and particularly its formulations for its products, are related to a product produced and placed in interstate and foreign commerce. 81. Defendants converted Living Essentials trade secrets, copyright and trademark with the intent to derive economic benefit, knowing that by doing so it would injure Living Essentials, the owner of them. 82. At the time they acquired Living Essentials trade secrets, Defendants knew or should have known that, as a former employee of Living Essentials, Zwierzchowski had a fiduciary duty not to reveal them. 83. At the time Defendants acquired Living Essentials trade secrets, they knew or should have known they were obtaining Living Essentials property for their own use. 84. At the time Defendants acquired Living Essentials' trade secrets, they knew or should have known they were buying, receiving, and possessing trade secrets. 85. Living Essentials has suffered irreparable damage as a result of its trade secrets, copyright and trademark being disclosed to, acquired by, or used for the benefit of On Go Energy. 18

19 86. Living Essentials has suffered, and will continue to suffer, irreparable harm, including damage to its business relationships with its distributors and customers, reputation, goodwill and ability to effectively compete in a highly competitive market, as well as loss of customers and past, present and future earnings, as a result of Defendants actions. 87. In fact, prior to Defendants' obtaining Living Essentials' trade secrets, copyright and trademark, which included information regarding Living Essentials' distributors, Living Essentials' 5-hour Energy product was the only energy shot marketed in Hawaii. After Defendants obtained the trade secrets, however, On Go Energy entered the Hawaiian market, using Living Essentials' Hawaiian distributor. COUNT I: MISAPPROPRIATION OF TRADE SECRETS (ALL DEFENDANTS) 88. Plaintiff incorporates each of the foregoing paragraphs by reference. 89. Defendants acquired certain trade secrets belonging to Plaintiff from Zwierzchowski. 90. Defendants knew, or had reason to know, that the trade secrets were acquired by improper means and Zwierzchowski was not authorized to share or sell Plaintiffs trade secrets. 91. Defendants have used Plaintiff s trade secrets without Plaintiff s permission, knowing or having reason to know that the information acquired from Zwierzchowski was trade secrets and had been acquired by accident, mistake, improper means, and/or from a person who owed Plaintiff a duty to maintain its secrecy. 92. The actions of Defendants constituted misappropriation of Living Essentials trade secrets of the type that may be enjoined under Michigan state law, Mich. Comp. Laws (1). 19

20 93. Defendants misappropriation of Living Essentials trade secrets entitles Living Essentials to recover damages under Mich. Comp. Laws and to a order from this Court preserving Living Essentials trade secrets. Mich. Comp. Laws COUNT II: DIRECT COPYRIGHT INFRINGEMENT (ALL DEFENDANTS) 94. Plaintiff incorporates each of the foregoing paragraphs by reference. 95. The text of Plaintiff s Caution label as set forth in U.S. Copyright Registration Number TX , as well as the selection, arrangement and presentation of such text, are wholly original with Plaintiff and constitute copyrightable subject matter under the United States Copyright Act, 17 U.S.C. 101 et seq. 96. Plaintiff has complied in all respects with the law governing copyright and has secured the exclusive rights and privileges in and to the copyright to the Caution label and has received from the Registrar of Copyrights a Certificate of Registration for the same. 97. Plaintiff and all those acting under its authority have complied with its obligations under the Copyright laws, and Plaintiff has at all times been and still is the sole proprietor of or is otherwise authorized to enforce all right, title and interest in the copyright to the Caution label. 98. Defendants are and have been infringing on Plaintiff s copyrighted work by printing, publishing, marketing, distributing and selling products featuring a textual portion that is virtually identical to Plaintiff s copyright-protected Caution label without any permission, license or other authorization from Living Essentials. 99. The products printed, published, marketed, distributed and/or sold by the Defendants utilize unauthorized copies of Plaintiff s copyrighted work in violation of 17 U.S.C Plaintiff has incurred damages caused by Defendants unlawful activity for which each Defendant is jointly and severally liable in the amount thus far not determined. 20

21 101. Upon information and belief, Defendants derive and/or have derived financial benefit, gains, profits and advantages as a result of their wrongful acts in an amount thus far not determined. Each Defendant is jointly and severally liable to Living Essentials for this undetermined amount In the alternative to recovering actual damages and profits under the Copyright Act and in addition to attorneys fees, which are requested under this Act, Plaintiff should be awarded the following statutory damages under 17 U.S.C. 504(c) from each Defendant: (a) Thirty Thousand Dollars ($30,000.00) pursuant to 17 U.S.C. 504(c)(1) for infringement of Caution label or; (b) One Hundred Fifty Thousand Dollars ($150,000.00) pursuant to 17 U.S.C. 504(c)(2) for willful infringement of such copyrighted work by each Defendant Plaintiff has no adequate remedy at law and is suffering and will continue to suffer irreparable harm if Defendants acts of copyright infringement are not enjoined. Accordingly, in addition to monetary relief, Living Essentials seeks permanent injunctive relief pursuant to 17 U.S.C COUNT III: CONTRIBUTORY COPYRIGHT INFRINGEMENT (DEFENDANT GEORGE) 104. Plaintiff incorporates each of the foregoing paragraphs by reference Defendant George obtained and utilized Living Essentials copyrighted work without any permission, license or other authorization from Living Essentials, in violation of 17 U.S.C Upon information and belief, Defendant George provided Living Essentials copyright (and trade secret) information to Defendant Aspen Fitness Products, Inc., Defendant On Go Enterprises, LLC, Defendant On Go International, LLC, Defendant On Go Gamer, LLC, and/or Defendant Aspen Media LLC. 21

22 107. Upon information and belief, Defendant George is the party with the primary responsibility for the control, management, supervision and direction of Defendant Aspen Fitness Products, Inc., Defendant On Go Enterprises, LLC, Defendant On Go International, LLC, Defendant On Go Gamer, LLC, and/or Defendant Aspen Media LLC The acts complained of herein by Defendant Aspen Fitness Products, Inc., Defendant On Go Enterprises, LLC, Defendant On Go International, LLC, Defendant On Go Gamer, LLC., and/or Defendant Aspen Media LLC were done under Defendant George s direction and supervision and with his active approval and assistance The actions of Defendant George induced, caused, and/or materially contributed to the direct copyright infringement of Living Essential s copyright work by Defendant Aspen Fitness Products, Inc., Defendant On Go Enterprises, LLC, Defendant On Go International, LLC, Defendant On Go Gamer, LLC, and/or Defendant Aspen Media LLC Living Essentials has incurred actual damages as a result of Defendant George s contributory copyright infringement for which he is liable in an amount thus far not determined Upon information and belief, Defendant George derives and/or has derived financial benefit, gains, profits and advantages as a result of the acts complained of herein in an amount thus far not determined. Defendant George is liable to Living Essentials for this undetermined amount In the alternative to recovering actual damages and profits under the Copyright Act and in addition to attorneys fees, which are requested under this Act, Living Essentials should be awarded statutory damages under 17 U.S.C. 504(c) from Defendant George in the amount of either (a) Thirty Thousand Dollars ($30,000.00) pursuant to 17 U.S.C. 504(c)(1) for contributory infringement of Caution label or; (b) One Hundred Fifty Thousand Dollars 22

23 ($150,000.00) pursuant to 17 U.S.C. 504(c)(2) for willful infringement of such copyrighted work by Defendant George Plaintiff has no adequate remedy at law and is suffering and will continue to suffer irreparable harm if Defendant George s acts of contributory copyright infringement are not enjoined. Accordingly, in addition to monetary relief, Living Essentials seeks permanent injunctive relief pursuant to 17 U.S.C COUNT IV: CONTRIBUTORY COPYRIGHT INFRINGEMENT (DEFENDANT ASPEN FITNESS) 114. Plaintiff incorporates each of the foregoing paragraphs by reference Upon information and belief, Defendant Aspen Fitness obtained Living Essentials copyrighted work (and trade secrets) from Defendant George, and it did so without any permission, license or other authorization from Living Essentials, in violation of 17 U.S.C Upon information and belief, Defendant Aspen Fitness provided Living Essentials copyright (and trade secret) information to Defendant On Go Enterprises, LLC, Defendant On Go International, LLC, Defendant On Go Gamer, LLC, and/or Defendant Aspen Media LLC Upon information and belief, Defendant Aspen Fitness is the primary entity that controls, manages, supervises and directs Defendant On Go Enterprises, LLC, Defendant On Go International, LLC, Defendant On Go Gamer, LLC, and/or Defendant Aspen Media LLC Upon information and belief, the acts complained of herein by Defendant On Go Enterprises, LLC, Defendant On Go International, LLC, Defendant On Go Gamer, LLC, and/or Defendant Aspen Media LLC were done under Defendant Aspen Fitness s direction and supervision and with its active approval and assistance. 23

24 119. The actions of Defendant Aspen Fitness induced, caused, and/or materially contributed to the direct copyright infringement of Living Essential s copyrighted work by Defendant On Go Enterprises, LLC, Defendant On Go International, LLC, Defendant On Go Gamer, LLC, and/or Defendant Aspen Media LLC Living Essentials has incurred actual damages as a result of Defendant Aspen Fitness s contributory copyright infringement for which it is liable in an amount thus far not determined Upon information and belief, Defendant Aspen Fitness derives and/or has derived financial benefit, gains, profits and advantages as a result of the acts complained of herein in an amount thus far not determined. Defendant Aspen Fitness is liable to Living Essentials for this undetermined amount In the alternative to recovering actual damages and profits under the Copyright Act and in addition to attorneys fees, which are requested under this Act, Living Essentials should be awarded statutory damages under 17 U.S.C. 504(c) from Defendant Aspen Fitness in the amount of either (a) Thirty Thousand Dollars ($30,000.00) pursuant to 17 U.S.C. 504(c)(1) for contributory infringement of Caution label or; (b) One Hundred Fifty Thousand Dollars ($150,000.00) pursuant to 17 U.S.C. 504(c)(2) for willful infringement of such copyrighted work by Aspen Fitness Plaintiff has no adequate remedy at law and is suffering and will continue to suffer irreparable harm if Defendant Aspen Fitness s acts of contributory copyright infringement are not enjoined. Accordingly, in addition to monetary relief, Living Essentials seeks permanent injunctive relief pursuant to 17 U.S.C COUNT V: UNFAIR COMPETITION (ALL DEFENDANTS) 124. Plaintiff incorporates each of the foregoing paragraphs by reference. 24

25 125. Defendants wrongful conduct, including their misappropriation and use of Plaintiff s trade secrets, was for their own economic benefit to gain an unfair advantage in the competition between On Go Energy and 5-hour Energy Products Defendants wrongful conduct, including their misappropriation of Plaintiffs trade secrets, was an unfair and unethical trade practice that harmed its competitor, Plaintiff, and constitutes unfair competition As a result of Defendants unfair competition, Defendants should be compelled to produce and return all confidential information of any kind pertaining to or containing information relative to Plaintiff, including the trade secrets, and Plaintiff is entitled to receive the profits of Defendants from the use of Plaintiff s confidential information and trade secrets, and other wrongdoing, and receive compensation for the damages it has suffered as a result thereof. COUNT VI: UNJUST ENRICHMENT (ALL DEFENDANTS) 128. Plaintiff incorporates each of the foregoing paragraphs by reference By wrongfully acquiring Plaintiff s trade secrets, by misappropriating them to their own use, and by their related wrongdoing, Defendants have received a benefit from Plaintiff Defendants have wrongfully benefited in the development of their competing product, the pricing and sale of their product, and the construction of their distribution network Defendants have not compensated Plaintiff for the benefit that Defendants received from Plaintiff Under the circumstances, it would be inequitable for Defendants to accept or retain the benefit conferred on them by Plaintiff without paying Plaintiff the value of the benefit conferred. 25

26 133. Plaintiff is entitled to receive the value of the benefit conferred on Defendants and entitled to the profits of Defendants resulting therefrom. COUNT VII: TRADEMARK INFRINGEMENT (ALL DEFENDANTS) 134. Plaintiff incorporates each of the foregoing paragraphs by reference Plaintiff s Products are marketed, advertised, promoted, distributed, offered for sale and sold in conjunction with its famous family of trademarks, including but not limited to the Running Man design mark since as early as Plaintiff is the owner of the 044 Registration which is current and in full force and effect. Additionally, Plaintiff s trademark qualifies as a famous mark pursuant to 15 U.S.C. 1125, and is inherently distinctive or has become distinctive through acquisition of secondary meaning Living Essentials devotes substantial energy and resources to preserving its image and identity, and has spent substantial sums of money for many years in developing and marketing the Products bearing the Running Man trademark Living Essentials extensively and widely advertises and promotes its Products through a variety of media including trade shows, the internet, and print. In addition to Plaintiff s advertising and promotional efforts, for many years Living Essentials Products have received extensive news coverage by national, regional and local print and broadcast media. Plaintiff s distinctive family of trademarks, when utilized in conjunction with the advertising, marketing, promotion, distribution, offer for sale and sale of its Products signify to the purchaser that the Products come from Living Essentials and are of the highest quality. Living Essentials high quality Products have been widely accepted by the public and are enormously popular. As a result of these activities, extensive use of its family of trademarks, and substantial commercial success and acclaim enjoyed under these marks, Plaintiff s trademarks are famous trademarks. 26

27 139. Defendants have, with actual and constructive notice of Plaintiff s federal registration rights, and long after Plaintiff established its rights in the trademark identified above, adopted and used the trademark in conjunction with publishing, advertising, marketing, promotion, sale and offering for sale of the competing product Defendants have advertised, marketed, promoted, distributed, sold and offered for sale, the competing products using the Plaintiff s Running Man trademark identified above in such a way that these acts will cause likelihood of confusion, deception and mistake, and that the public will conclude that the competing products are is authorized, sponsored, approved, or associated with Living Essentials. A side-by-side comparison of Plaintiff s Product (Exhibit G) and Defendants competing product (Exhibit C) is shown below: 141. Defendants use in commerce of Plaintiff s trademark in the advertisement, marketing, promotion, distribution, sale and offer for sale of the competing products is an infringement of Plaintiff s registered trademark and violation of 15 U.S.C. 1114(1). 27

28 142. Defendants have committed the acts alleged herein intentionally, fraudulently, maliciously, willfully, wantonly and oppressively with the intent to injure Living Essentials and its business Upon information and belief, Defendants derive and/or have derived financial benefit, gains, profits and advantages as a result of their trademark infringement in an amount thus far not determined. Plaintiff has incurred damages caused by Defendants unlawful activity. Each Defendant is jointly and severally liable to Living Essentials for this undetermined amount Plaintiff has no adequate remedy at law and is suffering and will continue to suffer irreparable harm if Defendants acts of trademark infringement are not enjoined. Accordingly, in addition to monetary relief, Living Essentials seeks permanent injunctive relief pursuant to 15 U.S.C and 15 U.S.C COUNT VIII: LANHAM ACT UNFAIR COMPETITION (ALL DEFENDANTS) 145. Plaintiff incorporates each of the foregoing paragraphs by reference As direct result of Plaintiff s longstanding use, advertising, marketing, and promotion, the Running Man trademark in inherently distinctive and/or has acquired a secondary and distinctive meaning among the public who have come to identify the Running Man trademark with Living Essentials and its Products The unauthorized competing products which have been advertised, marketed, promoted, distributed, sold and offered for sale by the Defendants employs Living Essentials famous trademark in order to confuse the public into believing that the competing products are approved by or has been authorized and sponsored by Living Essentials By misappropriating and using the Running Man trademark in connection with the publication of the competing products, Defendants are misrepresenting and will continue to misrepresent and falsely describe to the general public the origin, approval, affiliation, and/or 28

29 sponsorship of the competing products. Defendants have caused the competing products to enter interstate commerce willfully, with full knowledge of the falsity of approval and sponsorship by Living Essentials in an effort to mislead the public into believing that the competing products are associated, authorized, sponsored, or emanate from Living Essentials The acts set forth above constitute unfair competition in violation of 43(a) of the Lanham Act, 15 U.S.C. 1125(a) Defendants have committed these acts alleged herein intentionally, fraudulently, maliciously, willfully, wantonly and oppressively with the intent to injure Living Essentials and its business Upon information and belief, Defendants derive and/or have derived financial benefit, gains, profits and advantages as a result of their unfair competition in an amount thus far not determined. Plaintiff has incurred damages caused by Defendants unlawful activity. Each Defendant is jointly and severally liable to Living Essentials for this undetermined amount Plaintiff has no adequate remedy at law and is suffering and will continue to suffer irreparable harm if Defendants acts of unfair competition are not enjoined. Accordingly, in addition to monetary relief, Living Essentials seeks permanent injunctive relief pursuant to 15 U.S.C and 15 U.S.C COUNT IX: FEDERAL ANTI-DILUTION STATUTE (ALL DEFENDANTS) 153. Plaintiff incorporates each of the foregoing paragraphs by reference Plaintiff brings the following claim under the Federal Anti-Dilution Statute pursuant 15 U.S.C. 1125(c) As a result of Plaintiff s continuous promotion of its goods in conjunction with its trademarks, the Running Man trademark described above has become recognized as a distinctive and famous mark. 29

30 156. Defendants advertisement, marketing, promotion, distribution, offer for sale and sale of the competing products using Plaintiff s trademark (or confusingly similar mark) began after Plaintiff s trademark had become widely accepted by the consuming public as belingong to Plaintiff and has caused dilution of distinctive quality of this mark. Such conduct has caused injury to Plaintiff pursuant to 15 U.S.C. 1125(c) Defendants have willfully intended to trade on Plaintiff s reputation and/or to cause dilution of Plaintiff s Running Man mark Accordingly, Plaintiff is entitled to recover its damages, as well as Defendants profits received as a result of the infringement, pursuant 15 U.S.C. 1117(a) Upon information and belief, Defendants derive and/or have derived financial benefit, gains, profits and advantages as a result of their federal trademark dilution in an amount thus far not determined. Plaintiff has incurred damages caused by Defendants unlawful activity. Each Defendant is jointly and severally liable to Living Essentials for this undetermined amount Plaintiff has no adequate remedy at law and is suffering and will continue to suffer irreparable harm if Defendants acts of federal trademark dilution are not enjoined. Accordingly, in addition to monetary relief, Living Essentials seeks permanent injunctive relief pursuant to 15 U.S.C and 15 U.S.C WHEREFORE, Plaintiff Living Essentials requests the following relief: A. Permanent injunctive relief enjoining and restraining each of the Defendants and their officers, agents, servants, employees and attorneys and all those in active concert or participation with them, from: 1. Further infringing Plaintiff's copyright, or printing, publishing, producing, distributing, circulating, selling, marketing, offering for sale, advertising, promoting, displaying or otherwise disposing of any products not authorized by 30

31 Plaintiff bearing any simulation, reproduction, counterfeit, copy or colorable imitation of Plaintiff s copyright; 2. Using any simulation, reproduction, counterfeit, copy or colorable imitation of Plaintiff s copyright in connection with the promotion, advertisement, display, sale, offering for sale, printing, publication, production, circulation or distribution of any unauthorized products in such fashion as to relate or connect, or tend to relate or connect, such products in any way to Plaintiff, or to any goods sold, printed, published, produced, manufactured, sponsored or approved by, or connected with Plaintiff; 3. Effecting assignments or transfers, forming new entities or associations or utilizing any other device for the purpose of circumventing or otherwise avoiding the prohibitions set forth in subparagraphs (1) through (2); and 4. Destroying, altering, removing, or otherwise dealing with the unauthorized labels, advertising/print materials, files, or computer programs, which contain any information relating to the printing, publishing, producing, importing, manufacturing, distributing, circulating, selling, marketing, offering for sale, advertising, promoting, or displaying of any unauthorized products, which infringe Plaintiff s copyright. B. Directing that each Defendant deliver for destruction all unauthorized products, labels, signs, prints, transparencies, electronic files, photographs, images and advertisements in their possession or under their control bearing Plaintiff s copyrighted work or any simulation, reproduction, counterfeit, copy or colorable imitation thereof, and all plates, molds, matrices and other means of making the same. 31