Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA100268
`ESTTA Tracking number:
`09/20/2006
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91171767
`Defendant
`Horizon Radiology, P.A.
`Plaintiff
`McKesson Corporation
`
`Proceeding.
`Applicant
`
`Other Party
`
`Motion for Suspension in View of Civil Proceeding With Consent
`
`The parties are engaged in a civil action which may have a bearing on this proceeding. Accordingly, Horizon
`Radiology, P.A. hereby requests suspension of this proceeding pending a final determination of the civil
`action. Trademark Rule 2.117.
`Horizon Radiology, P.A. has secured the express consent of all other parties to this proceeding for the
`suspension requested herein.
`Horizon Radiology, P.A. has provided an e-mail address herewith for itself and for the opposing party so that
`any order on this motion may be issued electronically by the Board.
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by First Class Mail on this date.
`Respectfully submitted,
`/anthony l. laporte/
`Anthony L. Laporte
`alaporte@hanszenlaporte.com
`jwalker@hanszenlaporte.com
`09/20/2006
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`§
`§
`
`g
`
`§ Opposition No.: 91171767
`
`§ §
`
`Mark: Horizon Radiology
`§ Serial No.: 76/620,887
`§ Published in the Official Gazette
`§ on January 10, 2006
`
`McKESSON INFORMATION
`SOLUTIONS, INC.
`
`Opposer
`
`v.
`
`HORIZON RADIOLOGY, P.A.
`Applicant
`
`HORIZON RADIOLOGY P.A.’S CONSENTED MOTION
`TO SUSPEND PROCEEDINGS PURSUANT TO 37 C.F.R. § 2.117(a)
`
`Horizon Radiology, P.A. (“Horizon”) hereby files this Consented Motion to
`
`Suspend Proceedings pursuant to 37 C.F.R. § 2.117(a). Applicant, Horizon Radiology, P.A.
`
`respectfully requests that the Board suspend proceedings in this Opposition pursuant to 37
`
`C.F.R. § 2.117(a).
`
`BACKGROUND
`
`1.
`
`Applicant has filed a civil action in the United States District Court for the
`
`Southern District of Texas, Houston Division, Cause No. H-06-2724, Horizon Radiology,
`
`P.A. v. McKesson Corporation and McKesson Information Solutions, LLC (the “Civil Action”).
`
`See Exhibit 1. The Civil Action will have a bearing upon the opposition proceeding and may
`
`dispose of the issues raised in the opposition proceeding. A file-stamped copy of the
`
`Complaint is attached hereto as Exhibit A.
`
`2.
`
`The Board has the power to suspend proceedings in favor of a pending civil
`
`action pursuant to 37 C.F.R. § 2.117(a), which provides:
`
`Page 1 of 6
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`

`
`Whenever it shall come to the attention of the Trademark Trial and Appeal
`Board that a party or parties to a pending case are engaged in a civil action
`or another Board proceeding which may have a bearing on the case,
`proceedings before the Board may be suspended until termination of the civil
`action or the other Board proceeding.
`
`37 C.F.R. § 2.117(a).
`
`3.
`
`The Board regularly has exercised this power in the interests of promoting
`
`
`judicial economy and conserving resources. S_e_e e.g._Tokaido v. Honda Assocs.
`lnc., 179
`
`U.S.P.Q. 861, 862 (T.T.A.B. 1973) ([N]otwithstanding the fact that the Patent Office
`
`proceeding was the first to be filed,
`
`it
`
`is deemed to be the better policy to suspend
`
`proceedings herein until the civil suit has been finally concluded.”); Townley Clothes, Inc.
`
`v. Goldring, lnc., 100 U.S.P.Q. 57, 58 (Comm’r Pat. 1953) (“[|]t would not seem to be in the
`
`interests of ‘judicial economy’ for the parties to proceed in two forums....”) see=also TBMP
`§ 510.02(a) (citing, inter alia, Other Telephone Co. v. Connecticut National Telephone C0,,
`
`181 USPQ 125 (TTAB 1974)).
`
`4.
`
`V
`
`This opposition should be suspended because the Civil Action will have a
`
`bearing upon the opposition proceeding and may dispose of the issues raised in the
`
`
`opposition proceeding. See e.g. Tokaido v. Honda Assocs.
`Inc, 179 U.S.P.Q. at 862
`
`(“[W]hile a decision ofthe District Court would be binding upon the Patent Office, a decision
`
`by the Trademark Trial and Appeal Board would only be advisory in respect to the
`
`
`
`disposition of the case pending in the District Court.’); E also Sam S. Goldstein Indus. lnc.
`
`V. Botany |ndus., Inc., 301 F. Supp. 728, 731, 163 U.S.P.Q. 442, 443 (S.D.N.Y. 1969)
`
`(noting that PTO “findings would not be resjudicata in this [civil action]” and denying motion
`
`Page 2 of 6
`
`
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`

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`to stay district court proceedings).
`
`5.
`
`Applicant respectfully requests that the Board enter an order suspending the
`
`opposition proceeding and setting the time period for Opposer to file any pleadings or
`
`motions in response to Applicant’s Answer and Counterclaim including, for example, any
`
`motions under Rule 12 of the Federal Rules of Civil Procedure, based upon the date of the
`
`Board’s reinstitution order. Applicant requests that the Board’s suspension Order dictate
`
`that the deadline for any such responsive pleadings and/or motions shall be calculated
`
`starting from the date of the Board's reinstitution Order.
`
`6.
`
`Counsel for Opposer, Lisa W. Greene, Esq., provided consent to this Motion
`
`via email on August 30, 2006 on the condition that the Board approve the provisions of
`
`Paragraph 5 above. Patricia Cunningham, Counsel for Opposer, has also consented via
`
`email on September 19, 2006.
`
`WHEREFORE, Horizon respectfully submits that this opposition proceeding should
`
`be suspended pending disposition of the Civil Action.
`
`, Dated: September 20, 2006
`
` Stacey .‘Barnes
`
`Hansze I Laporte
`4309 Yo ‘um
`
`Houston, Texas 77006
`Phone: (713) 522-9444
`Fax: (713) 524-2580
`alaporte@hanszen|aporte.com
`sbarnes@hanszen|aporte.com
`
`Erik J. Osterrieder
`
`Page 3 of 6
`
`
`
`

`
`Schubert, Osterrieder & Nickelson PLLC
`6013 Cannon Mtn. Dr., Ste. 14
`Austin, Texas 78749
`Phone: (713) 533-0494
`Fax: (512) 301-7301
`ejo@sonIaw.com
`ATTORNEYS FOR APPLICANT
`
`Page 4 of 6
`
`
`
`

`
`CERTIFICATE OF TRANSMISSION
`
`
`
`This is to certify that a true and correct copy of HORIZON RADIOLOGY P.A.'S
`MOTION TO SUSPEND PROCEEDINGS PURSUANT . O 37 C.
`.R.
`2.117 a is being
`transmitted, via ESTTA, to the Trademark Trial and Ap - .
`o . n on the date of the
`signing below.
`
`
`
` Phone: (713) ‘ 2-9444
`Fax: (713) 524-2580
`aIa orte hanszenla orte.com
`
`sbarnes@hanszenIagorte.com
`ATTORNEYS FOR APPLICANT
`
`Dated: September 20, 2006
`
`Page 5 of 6
`
`
`
`

`
`CERTIFICATE OF SERVICE
`
`This is to certify that a true and correct copy of HORIZON RADIOLOGY P.A.'S MOTION
`TO SUSPEND PROCEEDINGS PURSUANT TO 37 C.F.R. § 2.117(a) was served on
`the date of signing below, on Opposer McKesson Information Solutions, lnc., through
`their attorneys of record via first class mail in an envelope addressed to:
`
`Lisa W. Greene
`
`Associated General Counsel
`
`McKesson Corporation
`5995 Windward Parkway
`Alpharetta, GA 30005
`
`Patricia Cunningham
`David Weslow
`
`Sutherland Asbill & Brennan LLP
`
`999 Peachtree Street, N.E.
`
`Atlanta, GA 30309-3996
`
`Dated: September 20, 2006
`
`~
`By:
`Anthony L. L porte
`
`
`
`Phone: (713) 52 -9444
`Fax: (713) 524-2580
`ala orte hanszenla orte.com
`
`sbarnes@hanszenlaportecom
`ATTORNEYS FOR APPLICANT
`
`Page 6 of 6
`
`
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`

`
`.
`
`'-
`
`‘.
`
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`-
`A
`=
`~
`IN THE UNITED STATES DISTRICT COURT sausage .
`IL,‘
`0‘ TEXAS
`F3a..E:..~
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`AUG 2 2 2006
`
`, E,
`
`,.
`
`_
`
`_
`
`my CDURT
`
`CIVIL film
`-_
`
`
`_
`
`,
`..
`e>6—% 2 4
`
`JURY DEMANDED
`'
`'
`«
`
`§
`§
`
`§ §
`
`§
`§
`
`§
`§
`
`§ §
`
`§
`
`HORIZON RADIOLOGY, P.A.
`
`Plaintiff
`
`.vs.
`
`McKESSON CORPORATION and
`McKESSON INFORMATION
`SOLUTIONS, LLC
`
`Defendants '
`
`Plaintiff’s'VApplication for
`Temporary Injunction, Permanent Injunction,
`and Ori
`inal-Com laint
`‘
`‘
`Horizon Radiology, P.A. (hereafter referred to “Plaintifl" or “Horizon Radiology”) files
`
`this Application for Temporary Injunction, Permanent Injunction and Original Petition
`
`complaining of McKesson Corporation (hereafter referred to as :“McKesson”) and
`
`McKesson Information Solutions, Inc. (“MIS”) (collectively “Defendants"), and in support
`
`hereof, Horizon Radiology would respectfully show the Court as follows:
`
`1%
`
`(Horizon Radiology, P.A. is a professional association organized under the
`1.,
`laws of the State of Texas.
`A
`
`2.‘
`
`McKesson Corporation is a Delaware corporation authorized to conduct
`
`business innthe State of Texas which may be sewed by serving its registered agent for
`
`7 service of process, Prentice Hall Corporation System, 701 Brazos Street, Suite -1050,
`
`Austin, Texas 78701. V
`
`3.
`A McKesson Information Solutions, LLC is a Delaware company authorized to
`conduct business in the State ofTexas which may be served by serving its registered agent
`
`

`
`|
`
`-
`
`o
`
`for service of process, Corporation Service Company, 701 Brazos Street, Suite 1050,
`
`Austin, Texas 78701.
`
`‘
`
`4.
`Upon information and belief, McKesson Information Solutions, LLC is the
`successor entity to McKesson ‘information Solutions, lnc., which is» listed by the4United
`
`States Patent and Trademark Office as the owner of the following trademarks: U.S.
`
`Registration No. 2600569 and 2962777.
`
`Jurisdiction & Venue
`
`_ 5.
`
`The Court has jurisdiction over the Defendants as it has both general and I
`
`specific contacts with this forum and has acceded to being brought before this Court's
`
`. authority. The Court has jurisdiction over the controversy because of complete diversity
`
`of the parties, the damages and relief sought are withinithejurisdictional limits of the Court,
`
`and the issues involve the application of federal law.
`
`Background Facts
`
`_ History of the Parties Name Use"
`
`6.
`
`Horizon Radiology was organized and commenced business on January 26,
`
`2001 .' It was the successor entity to Gulf Coast Radiology, a 1997 entity organized and‘
`based in Houston, Texas.
`I
`7
`
`7.
`
`MIS is "the owner of U.S. registrations for the marks “HorizonWP” and
`
`In November 2003, Defendants introduced their services called
`“Horizon Clinicals”.
`“Horizon Radiology”, a radiological film and record managing suite andsystem.
`I
`
`8.
`
`Horizon Radiology has applied for the use of the mark “Horizon Radiology"
`
`with the United States Patent and Trademark Office. This Application has been opposed
`
`9 by MIS.
`
`

`
`r
`
`K
`
`Business of the Parties
`
`9.
`
`‘ Horizon Radiology is and has been continuously in the business of the
`
`reading and evaluating of radiological films. Horizon Radiology has qualified radiologists
`
`who read radiological films sent electronically to its screens by hospitals and emergency
`
`clinics with whom Horizon Radiology contracts. ‘The results and findings of the films are
`
`then expediently sent back to the source hospitals to enable the doctors to provide prompt
`
`medical care to the patient.
`
`In short, through the magic ofmodem technology, radiologists
`
`sitting in Houstonare able to read films from Atlanta, Dallas, New,Q'rleans, etc. and provide
`
`real time responses without ever leavingstheir office.
`
`Industry Facts
`10.
`The provision of long distance transmission and reading of radiologicalfilms,
`
`known in the industry as “tele—radiology" or “nighthawk radiology”, has, necessarily, a small
`
`universe of providers. Since viable technology for this business only became available in
`
`the last decade, a handful of qualified, certified, and licensed radiologists in whom hospitals '
`
`have trust and confidence have formed practice groups to provide this essential service.
`
`(This service has enabled small, rural hospitals who cannot afford "full time a full time
`
`radiologist to be as responsive and capable in responding to emergency situations as their
`
`more equippedlurban brethren, particularly at night.) Horizon Radiology was one of the
`
`pioneers in this field, with the service originally being performed under the name Gulf Coast '
`Radiology. In January 2001, the founders of Gulf Coast Radiology simply organized a new
`
`entity, Horizon Radiology, in order to separate this radiology enterprise from traditional “on
`
`call” radiological billings. Since its inception, Horizon Radiology has served more than 500 V
`
`physicians, hospitals, clinics, and groups in at least a dozen ‘different states. All of these
`
`

`
`‘
`
`>
`
`historical facts are supported by the Affidavit of Frank C. Powell, managing partner of
`
`Horizon Radiology. See Exhibit A.
`
`The Lanham Act Violations
`
`11. While Defendants do not, at this time, provide the exact same radiology
`
`services as Horizon Radiology, they are seeking toxuse and preserve for their own use the
`name “Horizon Radiology” in connection with their medical records_and film handling
`services, called “Horizon Radiology". Afull description of Defendants’ product and services
`
`under this name is attached as Exhibit B.
`I
`12.
`As the Court is well aware, the Lanham Act prevents" Defendants from
`infringing on Horizon Radiology’s trade name and ‘service mark in order to develop
`themselves or their businesses. Under the Lanham
`15 USCS §1125(a), a party may
`not adopt a trade name which is the same or confusingly similar to another’s so. that there
`
`exists a likelihood of confusion to consumers as to the proper origin of the goods or
`
`services. Because of Defendants’ selection in 2003 of a strikingly similar name to that of ~
`
`Horizon Radiology’s name (which had been in full force and effect since 2001) in a ‘
`
`extremely narrow and nationwide medical field, Defendants have violated the Lanham Act,
`
`and Horizon Radiology is entitled to injunctive relief, as well as damages.
`
`Causes of Action & Authorities
`
`Unfair Competition Pursuant tonsection 43(g), 15
`
`§1125(a1
`
`13.
`
`To prevail on a claim for injunctive relief under 43(3) of the Lanham Act, 15
`
`USC §1125(a), a plaintiff must demonstrate (1) that it is the prior owner of the trade name
`
`of service mark, and (2) that Defendants adopted a trade name and service mark that is
`
`the same or confusingly similar to plaintiff's trade name or service mark so that there exists
`
`

`
`»
`
`a likelihood of confusion to consumers as to the properorigin of the goods or services,
`
`such that a consumer is likely to believe that defendants"goods or services are being sold
`
`with the consent or authorization of the plaintiff, or that Defendants are affiliated with or
`
`connected to the plaintiff.
`
`.American United Life Insurance Co. v. American United
`
`Insurance Co.,'I31 F. Supp. 480, 486 (S.D. Fl. 1990); see also Conagra, Inc. v. Singleton,
`
`’
`
`. 743 F.2d 1508, 1512 (11"' Cir. 1984). Upon a finding of these elements, an action-for
`
`infringement may be maintained. 9
`
`in making a determination as to the application’ of the term “confusing
`14.
`similarity,” a courtis to consider seven factors:
`'1
`A
`(1) the type oftrade name or service mark used;
`
`(2) the similarity of the trade name or service mark;
`
`(3) the similarity of the product of service;
`(4) the similarity of the retail‘ outlets and purchasers;
`(5)the similarity of advertising media used;
`
`(6) the existence of actual confusion; and,
`
`(7) the defendants’ intent.
`
`See American United Life Insurance Co., 731 F. Supp. at 486; Jellibeans, Inc. v. Skating
`
`Clubs of Georgia, Inc., 716 F.2d 833, 840 (11th Cir.1983); see also Amstar Corp. V.‘
`
`Domino's Pizza, Inc., 615 F.2d 252, 259-264 (5th Cir. 1980), cert. denied, 449 U.S. 899,
`
`101 S. Ct. 268, 66L. Ed. 2d 129 (-1980).
`
`15.
`
`Here, it is undisputed that -several applicable factors, specifically the names
`
`(Horizon Radiology v. Horizon Radiology) and the -same niche business (the provision of
`
`tele-radiology services) certainly support a finding of trade name infringement. Defendants
`
`

`
`v
`
`are infringing on Horizon Radiology’s specific name and using same in the development
`
`of its new core lines of business. The law of unfair competition protects the prior owner of
`a mark from those who '"sell their goods in such a way as to make it appear that they come
`from some other source.'" Boston Professional HockeyAssn., Inc. v. Dallas Cap & Emblem
`
`Mfg., 510 F.2d 1004, 1010 (5th Cir. 1975) (quoting American-ll/farietta Co. v. Krigsman, 275
`
`F.2d 281'/, 289 (2nd Cir. 1960)), certydenied, 423 lJ.S.«868, 96 S. Ct. 132. 46 L. Ed. 2d 98
`
`(1975). Horizon Radiology and Defendants’ “Horizon Radiology” business venture occupy
`the same medical services industry, creating the serious potenti_al_for confusion as to the
`
`source, quality, and sponsorship of the services.
`
`16.
`
`Based upon all of the above, Plaintiff Horizon Radiology has established that
`
`Defendants have intentionally violated the Lanham Acfand is now liable to the Plaintiff for
`damages. Plaintiff has further established its right to an injunction against Defendants for
`
`such violative conduct.
`
`Common Law Unfair Comgtition
`
`17.
`
`A A violation of the Lanham Act automatically provides a cause of action for ‘
`
`common law unfair competition. See Babbit Electronics Inc., V.‘ Dynascan‘ Corp., 38 F.3d '
`
`1161, 33 U.S.P.Q.2D (BNA) 1001, 1016 (11th Cir. 1994); Marathon Mfg. Co. V. Enerlite
`
`Products Corp., 767 F.2d 214, 217 (5th Cir. 1985). The elementsa plaintiff must prove to
`
`prevail on a ‘common law unfair competition claim based on trade name or service mark
`
`infringement are: (1) that plaintiff is the prior user of the trade name or service mark; (2)
`
`that the trade name or service mark is arbitrary or suggestive or has acquired secondary
`
`meaning; (3) that the defendant is using a "confusingly similar trade name or service mark
`
`to indicate or identify similar services rendered (or similar goods marketed) by it
`
`in
`
`

`
`7
`
`competition with plaintiff in the same trade area in which plaintiff has already established
`
`its trade name" or service mark; and (4) that as a result of defendants’ action or threatened
`
`action, consumer confusion as to the source or sponsorship of defendants’ goods and A
`
`services is likely. American Bank of Merritt Island v. First Am. Bank and Trust, 455 "So.2d
`
`443,445-6 (Fla. 4th DCA 1984), review denied, 461 So.2d 114 (Fla. 1985).
`
`The competition requirement has beeninterpreted to require a showing of
`18.
`"similarity in businesses of the parties." The circumstances must lead to the conclusion
`that the business of the first user will suffer from the deceptive-"use or that by reason of
`
`unfair competition there will be an imposition on the public. Here again, the names of the
`
`parties are identical and the business in which the parties operate is significantly narrow.
`
`T Common Law Trade Name and Service‘Mark Infringement
`
`19.
`
`The elements required to prevail on a claim ofcommon law trade name and
`
`service mark infringement are the same as those required to prevail under § 43(a) of the
`
`Lanham Act, 15 U.S.C. § 1125(a)l or under a claim for common law unfair competition.
`
`Here again, Plaintiff Horizon Radiology has met its burden on this claim as well and is
`entitled to injunctive relief as well as damages from Defendants.
`
`Texas Anti-Dilution Statute
`2.0.
`Horizon Radiology also makes a claim against Defendants for dilution of its
`
`trade name and service mark. The Texas Anti-Dilution Statute provides that:
`
`A person may bring an action to enjoin an act likely to injure a business
`reputation or to dilute the distinctive quality of- a mark registered under this
`chapter or Title 15, U.S.C., or a mark or trade name valid at common law,
`regardless of whether there is competition between the parties or confusion -
`as to the source of goods or services. An injunction sought under this
`section shall be obtained pursuant to Rule 680 et seq. of the Texas Rules of
`Civil Procedure.
`'
`
`

`
`‘
`
`¢
`
`TEX. Bus & COMMERCE_CODE § 16.29. Horizon Radiology is entitled to relief by establishing
`
`that there exists a likelihood of injury to business reputation or of dilution of the distinctive
`
`quality of the mark [or] name notwithstanding the absence of competition between the
`
`parties or of confusion as to the source of goods or services.
`
`Under,this section of the Texas Business and Commerce Code, neither
`21.
`competition nor confusion is required.
`As long ‘as it is established that Horizon
`
`Radiology’s trade name and service mark are distinctive and entitled to protection, a cause
`
`of action for dilution may be made. By Defendants using a virtually identical trade name ‘
`
`and service mark _to promote the sale; of their services, there is no doubt that the
`commercial value of Plaintiffs trade name and service mark is likely to
`diluted by
`/
`
`Defendants’ unauthorizedluse ofa virtually identical trade name and service mark,"_and that
`
`this willcreate a likelihood of injury to plaintiff's business reputation. Freedom Savings and V
`
`Loan Assn. v. Way, 757 F.2d 1176,1186 (11th Cir. 1985), cert. denied, 474 U.S. 845, 106
`
`S. Ct. 134, 88 L. Ed. 2d .110 (1985). Horizon Radiologytherefore makes claim against
`
`Defendants for dilution.
`
`Declaratogz Judgment for No Trademark Infringement against MIS
`
`In a proceeding before the Untied States Patent and Trademark Office
`22.
`Trademark Trial and Appeals Board, Defendant AMIS has opposed registration of Plaintiffs
`
`mark HORIZON RADIOLOGY.
`In the USPTO proceeding, Opposition Proceeding No.
`91171767, Defendant MIS has alleged that Plaintiffs use and registration of the mark
`
`HORIZON RADIOLOGY is likely to cause confusion as the source and quality of its goods
`
`and services. Defendant MIS has further alleged that it will be damaged by Plaintiffs use
`
`of and registration of the mark.
`
`

`
`‘.
`
`'-
`
`23.
`
`Defendant MlS has alleged that it, or its predecessor in interest, is the owner
`
`of U.S. marks, U.S. Registration No. 2600569 and 2962777, and that its ownership ofthe
`
`marks in question entitles Defendant MIS to oppose Plaintiffs registration of the mark
`
`HORIZON RADIOLDGY.
`24.
`Plaintiffs use of its mark does not infringe U.S. marks,
`
`Registration No.
`
`2600569 and 2962777.
`
`"
`
`Plaintiffrequests a declaratoryjudgrnent ofnofederal trademark infringement
`25.
`that its goods and services do not infringe
`Defendant MlS’salieged marks under U.S.
`
`Registration No. 2600569 and 2962777. Additionally, Plaintiffrequests adeclaratoryjudgment
`
`‘that Defendant MIS (and/or its predecessor in interest) fraudulently procured U.S. Registration
`
`No. 2600569 and 2962777 by representing to USPTO,"at the time of filing and/or during the .
`
`prosecution of the applications‘to register these federal marks at issue, that Defendant MIS
`
`was entitled to seek_ registrations for each of these marks. With intent to deceive, Defendant
`
`A MIS intentionally and knowingly misrepresented that Defendant MIS possessed the right to
`
`use its federally registered marks at issue in commerce, when used on or in connection_ with
`the goods and/or services, so as .not to cause confusion, mistake, or to deceive when
`
`compared to other existing marks, such as those identical or similar marks Defendant MIS
`knew were a|ready_owned and used by Plaintiff or others. As a’ result,‘ Defendant MlS’
`
`fraudulently procured, registered marks at issue in this suit are invalid and unenforceable
`
`' against Plaintiff.
`
`Damages
`
`'
`
`_ 26.
`
`Plaintiff Horizon Radiology asks the Court to grant damages as determined by
`
`the trier of fact in excess of the minimum jurisdictional limits of this Court. Plaintiff further
`
`

`
`‘
`
`-
`
`seeks injunctive relief against Defendants precluding their use of the Plaintiffs trade name and
`
`service mark. Plaintiff seek recovery of its attorneys fees and costs of court. Plaintiff asserts
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`that this is an exceptional case such that Defendants should be required to pay Plaintiffs‘
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`reasonable attorney fees and costs in accordance with 15 U.S.C. § 1 1 17. Furthermore, the
`Court has the authority to awardnfees to a prevailing party where there is evidence offraud
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`or bad faith, as there is in this lawsuit. Safeway Stores, Inc. v. Safeway Discount Drugs,
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`675 F.2d 1 160, 1 166 (1 1th Cir. 1982); see also Jellibeans Inc: v. Skating Clubs of Georgia,
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`lnc., 716 F.2d 833, 846 (11th Cir. 1983).
`
`.
`
`S
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`'
`Application for Temporary Restraining Order,
`Temporag Injunction, and Permanent lniunction
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`.
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`In addition, Plaintiff Horizon Radiologyhas demonstrated a likelihood of
`27'.
`success on the merits of its claims against Defendants. The balance of equities between
`Defendants and the Plaintiff favor the issuance of injunctive relief because to not-issue
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`injunctive relief would,
`in effect, sanction Defendants’ wrongful conduct and result in
`immediate and irreparable loss and damage to Plaintiff. injunctive relief is necessary, with
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`such injunctive relief precluding the Defendants’ use of the phrase “Horizon Radiology" in
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`its operations and advertising.
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`28.
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`Plaintiff hereby requests a trial by jury.
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`Jury Demand
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`Prayer
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`Plaintiff Horizon Radiology. P.A.
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`requests that McKesson» Corporation and
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`McKesson information Solutions be cited to appear and show cause why a temporary
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`restraining order and temporary injunction should not issued enjoining them from using
`the name “Horizon Radiology" in their operations and advertising, and that upon final ruling
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`10
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`

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`p
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`l
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`by the Court that Plaintiff Horizon Radiology, P.A. be granted a permanent injunction
`against Defendants, that the Court grant judgment in favor of Plaintiffs and against
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`Defendants for actual and punitive damages, and that the Plaintiff receive its attorneys
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`fees, costs, and interest and for such other and further relief to which the Plaintiff may show_
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`itself to be justly entitled.
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`Res ctfully su 0 mitted,
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`.
`
` "Anthony L.
`
`State'Bar N
`
`'-
`
`-sporte '
`Hanszen I
`PO Box 270353 ‘
`7 4309 Yoakum (77006)
`Houston, Texas 77277-0353
`Telephone:
`(713) 522-9444
`Facsimile:
`(713) 524-2580
`
`Attomey for Plaintiff
`
`11
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`

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`EXHIBIT B
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`

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`McKesson Corporate: Mcfison Introduces Horizon Radiology at M3 RSNA; Integrate... Page 1 of 1
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`Home > About Us > Newsroom > Press Releases > 2003
`
`McKesson Introduces Horizon Radiology at 2003 RSNA; ‘Integrated
`Medical Imaging and Workflow Management for RIS—PACS
`'
`November 26, 2003
`_.
`'
`
`.
`
`Business Editors/Health/Medical Writers
`RSNA 2003
`Booth No. 1120
`
`’
`
`ATLANTA--(BUSINESS WIRE)--Nov. 26, 2003--Leveraging the power of its industry—leading Horizon
`Medical Imagingi(TM) solution, McKesson will launch Horizon Radio|ogy(TM) at the 89th Radiology Society
`of North America in Chicago (Booth No. 1120, McCormick Place, South Hall). Horizon Radiology is
`McKesson's new, image-enabled information management system for transforming workflow in acute-
`care and outpatient radiology departments. ‘By enabling seamless access to patient information, clinical
`images and reports, Horizon Radiology streamlines administrative and clinical workflow for faster
`turnaround of medical images and ultimately, improved patient care.
`1
`Horizon Radiology is the first suite in McKesson's portfolio of new solutions to manage medical images
`in all diagnostic specialties across the hospital enterprise. In addition to Horizon Medical Imaging, the
`Horizon Radiology suite includes Horizon Radiology Manager(TM), a Web-based workflow system for
`managing the full range of radiological functions, including management of patients, films, clinical history,
`electronic signatures, claims preparation and management reporting. workflow is further streamlined with
`an optional module, Horizon Radiology Reporting(TM), for diagnostic report generation, transcription,
`digital dictation, and voice recognition. Integrated with HorizonWP(R) Physician Portal, Horizon Radiology
`provides seamless "anytime, anywhere" access to patient information, clinical images and reports,
`delivering productivity gainsfor medical imaging and clinical workflow.
`A
`According to Greg Peet, vice president and general manager of McKesson's Medical Imaging Group,
`Horizon Radiology sets the stage for McKesson to pfovide an integrated solution for medical imaging and
`clinical workflow that can be applied tolmany medical specialties. "With this new suite, we've automated
`workflow throughout the diagnostic process, from the ‘time an order is placed until reports are
`distributed," Peet said. "The result should be improved clinician productivity, better and faster access to
`information, and ultimately, faster diagnosis of patient conditions so that treatment can begin.“
`Presbyterian Healthcare Services (PHS) in Albuquerque, N.M., has purchased Horizon Radiology and
`will be implementing it next year. In addition to enabling operational efficiency across three of its area
`facilities, PHS' goal is to establish a complete electronic health record that will aid in timelier and more
`informed clinical _decision-making. To that end, a key componentof the implementation will be integration
`with McKesson's Horizon Clinicals(TM) suite, including the company's Web-based physician portal, clinical
`decision support/computerized physician order entry solution and clinical data repository.
`"We were looking for a system that would enable us to create greater efficiencies in radiology
`department workflow, leverage our existing IT investment and provide timely, easy access to information
`for,the entire care team," said Robert Garcia, administrative director for Presbyterian Healthcare's clinical
`imaging services. "Our ongoing partnership with McKesson has clearly benefited not only our medical staff
`but our patients as well, and we expect this new solution to further enhance our delivery of patient care."
`Horizon Radiology and other McKesson solutions will be available for demonstration during RSNA in
`'
`_McKesson's booth, No. 1120, South Hall. For more information or to schedule a private meeting, contact
`McKesson Medical Imaging sales at 1-800-661-5885. Media should contact Paul Adams at (404) 338- .
`3414, paul.adams@mckesson.com..
`V‘
`-
`'
`
`About McKesson
`
`McKesson‘Information Solutions is part of McKesson Corporation, a Fortune 20 healthcare services and
`information technology company. McKesson is dedicated to helping its customers deliver high-quality
`healthcare by reducing costs, streamlining processes and improving the quality and safety of patient care.
`Over the course of its 170-year history, McKesson has grown to provide pharmaceutical and medical-
`surgical supply management across the spectrum of care; healthcare information technology for
`hospitals, homecare and payors; hospital and retail pharmacy automation; and services for
`manufacturers and payors designed to improve outcomes for patients. For more information, visit us at
`www.mckesson.com. »
`-
`'
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`h
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`://www.mckesson.com/en us/McKesson.com/About+Us/Newsroom/Press+Re1eases/2...
`
`8/17/2006
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`
`
`

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`wsu (Rev. 11/04)
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`CIVIL COVER SHEET
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`V
`
`I. (a) . PLAINTIFFS
`Horizon Radiology, P.A.
`
`DEFENDANTS
`
`McKesson Corporation and
`McKesson Information Solutions, LLC
`
`(b) County ofResidence ofFirst Listed Plaintiff Harris
`County ofkesidenoe of First Listed Defendant
`(EXCEPT IN US. PLAINTIFF CASES)
`(IN US. PLAINTIFF CASES ONLY)
`IN LAND G)NDEMNATION CASES. USE THE LOCATION OF THE
`LAND INVOLVED.
`
`NOTE:
`
`(c) Attorney's (F'mn Name, Address, nndTelepl|one Numim)
`
`Attorneys (lfKnown)
`
`Anthony L. Laporte / Hanszen Laporte / 4309 Yoakum
`Houston, Texas 77006 / 713-522-9444
`
`II. BASIS OF JURISDICTION (Place In “X” 'n One Boxonly)
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