Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA264269
`ESTTA Tracking number:
`02/03/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91187612
`Plaintiff
`Virgin Health, Inc.
`M. Keith Lipscomb
`Lipscomb, Brady & Bobadilla, PL
`2 Biscayne Blvd.PH 3800
`Miami, FL 33131
`UNITED STATES
`Klipscomb@lbbfirm.com
`Opposition/Response to Motion
`M. Keith Lipscomb
`Klipscomb@lbbfirm.com
`/M. Keith Lipscomb/
`02/03/2009
`20090203152746995 (2).pdf ( 13 pages )(1093908 bytes )
`Exhibit A.pdf ( 1 page )(71923 bytes )
`Exhibit B.pdf ( 1 page )(88112 bytes )
`Exhibit C.pdf ( 1 page )(127542 bytes )
`Exhibit D.pdf ( 1 page )(135037 bytes )
`EXHIBIT E.PDF ( 1 page )(85520 bytes )
`Exhibit F.pdf ( 16 pages )(1552312 bytes )
`Exhibit G.pdf ( 32 pages )(2798968 bytes )
`Exhibit H.pdf ( 15 pages )(1184943 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`VIRGIN HEALTH CORPORATION,
`
`a Florida corporation,
`
`Opposer,
`
`V.
`
`VIRGIN ENTERPRISES LIMITED,
`
`an English corporation,
`
`Applicant.
`
`OPPOSITION NOS.: 91187612
`91187614
`
`OPPOSER’S MEMORANDUM IN OPPOSITION TO APPLICANT’S MOTION FOR
`
`JUDGMENT ON THE PLEADINGS
`
`AND
`
`OPPOSER’S MOTION TO SUSPEND THE OPPOSITIONS DURING THE PENDENCY
`
`OF A FEDERAL COURT SUIT BETWEEN THE PARTIES
`
`I.
`
`INTRODUCTION
`
`Applicant’s, Virgin Enterprises Limited (“VEL”), Motion for Judgment on the Pleadings
`
`(the “Motion”) argues that Virgin Health Corporation (“Virgin Health”) failed to a state a claim.
`
`VEL is wrong as a matter of law. VEL primarily erred by ignoring the 1988 Amendment to
`
`Section 18 of the Lanham Act, 15 U.S.C. § 1068, which specifically authorizes the cause of
`
`action for partial restriction or modification pled by Virgin Health in the subject oppositions.
`
`Consequently, as explained below, the Board, over fourteen years ago, based on Section 18 of
`
`the Lanham Act, expressly rejected the central arguments proffered here and now by VEL in its
`
`Motion. Since Virgin Health pled the allegations that this Board stated were necessary to state a
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`

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`claim for partial restriction or modification under Section 18, the Board should deny VEL’s
`
`Motion.
`
`Virgin Health also respectfully requests that the Board suspend the instant oppositions
`
`pending the resolution of S.D. Fla. Case No. O8-22557-civ-Ungaro/Simonton which is between
`
`the same parties and over the same marks at issue here. As set forth below, the federal court case
`
`will adjudicate whether the parties’ simultaneous use of their marks for their respective goods
`
`and services is likely to cause confusion. Under TBMP Rules, this Board should ordinarily
`
`suspend an opposition if the federal court case will have a bearing on it. Here, the federal court’s
`
`adjudication of whether confusion is likely will be highly relevant to the issue of whether Virgin
`
`Health’s proposed restriction will avoid confusion. Accordingly, Virgin Health respectfully
`
`suggests that suspending the opposition proceedings is the appropriate and proper course of
`
`action, and moves the Board for the entry of an order doing so.
`
`II.
`
`FACTS & PROCEDURAL POSTURE
`
`A.
`
`Virgin Health is in the Intensive Home Health Care Services Business
`
`Since at least as early as November 2005, Virgin Health has been in the business of
`
`providing home health care services to patients that: (a) require regular, periodic or highly skilled
`
`health care services; and (b) are afflicted with substantial preexisting illnesses or conditions that
`
`are not immediately remediable, including: (1) nursing aid services, (2) nursing services, (3)
`
`physical therapist services, (4) occupational therapist services, (5) speech and hearing therapist
`
`services, and (6) social services critical for mental health such as companionship services for the
`
`elderly. SQ Companioni Dec. ‘ll 1, attached as Ex “A.”
`
`2
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`LBB 7209
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`

`
`B.
`
`VEL is the Trademark Holding Company for the Virgin Group’s Global Business
`
`VEL is the trademark holding company for the Virgin Group. The Virgin Group is
`
`comprised of “200 [VIRGIN] branded companies, employing approximately 50,000 people, in
`
`29 countries [with] revenues .
`
`.
`
`. eXceed[ing] US $20 billion.” fie EX. “B.”
`
`C.
`
`The Virgin Group Decides to Dip Its Toe Into the 2.2 Trillion Dollar U.S.
`Healthcare Industry
`
`“The United States of America has one of the largest medical and healthcare industries in
`
`the world. .
`
`.
`
`.
`
`[t]he total health care expenditures across the world were $4.5 trillion last year.
`
`Of which, US solely accounts for 2.2 trillion.” _S_e§ Ex. “C.” Four years ago, VEL decided to dip
`
`its toe into the 2.2 trillion dollar U.S. health care industry by filing two intent-to-use federal
`
`trademark applications, numbers 78/570,287 and 78/570,290, covering, among other things,
`
`“medical evaluation services, namely, providing health assessments; advisory services relating to
`
`health; consultation relating to health care.” In the four years since filing these applications,
`
`VEL’s sole entre into the U.S. health care industry has been in association with its Virgin Health
`
`Bank, which is providing an infant stem cell collection and repository service, and its Virgin
`
`Healthmiles business. According to VEL’s website, the Virgin Healthmiles business “is a first—
`
`of-its-kind health, rewards program that motivates and incentivizes consumers to engage in the
`
`process of getting and staying healthier, by being more active. The program is offered by
`
`insurers, employers and other network partners, such as health clubs, in an effort to motivate
`3
`Americans to live more active lives —— and ultimately lower health care costs for everyone.’ SE
`
`EX “D 93
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`LBB 7209
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`

`
`D.
`
`VEL is Improperly Seeking to Have Its Identification of Goods or Services
`Interpreted In Such a Way That It Covers the Entire 2.2 Trillion Dollar Health
`
`Care Industry
`
`On December 6, 2007, VEL sent a letter to Virgin Health stating “VIRGIN is a registered
`
`trademark .
`
`.
`
`.
`
`.VEL’s licensee, Virgin Healthmiles, Inc. (“VH1”), currently offers VIRGIN-
`
`branded services designed to reward individuals for engaging in activity to improve their health. .
`
`.
`
`.” and demanding that Virgin Health “confirm to us that you will refrain from any use of
`
`VIRGIN as all or part of any business name, trademark, or service mark used in association with
`
`health care services.” SE Ex “E.” On January 14, 2008, VEL filed suit against Virgin Health in
`
`the Southern District of New York alleging that Virgin Health was infringing its trademark
`
`rights. Sfi Ex. “F.” VEL dismissed the suit only after Virgin Health’s counsel advised VEL’s
`
`counsel that New York did not have personal jurisdiction over Virgin Health.
`
`E.
`
`There is a Presently Pending Federal Court Suit
`Infringement
`
`Involving the Issue of
`
`After VEL voluntarily dismissed its suit in the Southern District of New York, Virgin
`
`Health filed suit against VEL in the Southern District of Florida, Case No. 08-22557—civ-
`
`Ungaro/Simonton, seeking, among other things, a declaration that Virgin Health is not infringing
`
`VEL’s trademark rights. SE Count I of the Complaint, attached as Exhibit “G.” In the parties’
`
`26(f) Scheduling Report, VEL again asserted that it “expects that it will serve an Answer that
`
`likely will deny that the Plaintiff is entitled to any relief, and likely will include one or more
`
`counterclaims against the Plaintiff and its controlling person(s).” S33 Ex “H.”
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`

`
`III.
`
`ARGUMENT
`
`A.
`
`Virgin Health’s Oppositions State a Cause of Action
`
`1.
`
`Section 18 of the Lanham Act Permits The TTAB To Restrict An
`
`Identification of Goods and Services to Certain Charmels of Trade or
`
`Classes of Customers
`
`VEL’s Motion fails to mention Section 18 of the Lanham Act, much less appreciate that
`
`the instant oppositions were brought pursuant to it. The crux of VEL’s argument is that the
`
`Board does not have the power to restrict or modify VEL’s identification of goods or services to
`
`certain charmels of distribution or classes of purchasers, which Virgin Health has alleged is
`
`necessary to avoid the possibility of paper confusion.
`
`_S_e_:§ Motion at p. 10 (where VEL remarked
`
`‘“[p]aper confusion’ apparently is Opposer’s way of describing what happens when a person
`
`makes unauthorized use of someone else’s registered mark”) Contrary to VEL’s uninformed
`
`remark,
`
`the Board held in Eurostar,
`
`Inc. v. Euro—Star Reitmoden GMBH & Co. KG,
`
`Spezialfabrik Fur Reitbekleidung, 34 U.S.P.Q.2d 1266, 1995 WL 231387, * 3 (TTAB 1994) that
`
`Section 18 was amended precisely to remedy the “paper confusion” problem caused by “certain
`
`product identifications, [that] although accurate and acceptable for purposes of registration, may
`
`appear on paper to give rise to likelihood of confusion, but would not give rise to confusion in
`
`the marketplace due to distinctions between the actual products and their channels of trade.”
`
`Further that:
`
`Before the amendments to Section 18, the Board was constrained to decide cases
`presenting the issue of likelihood of confusion based upon the recitation of goods
`or services that appeared in a defendant’s application or registration and a
`plaintiff’ s pleaded registration, rather on the evidence adduced at trial to the
`actual goods or services or the channels of trade of those goods or services. The
`immediate impetus for the revisions to the Lanham Act was a study by the
`Trademark Review Commission .
`.
`. which entailed two years of review, analysis,
`
`5
`
`LBB 7209
`
`

`
`[The report stated]
`. culminat[ing] in the Commission report.”
`.
`and debate .
`[c]urrent law puts the Board in a straight jacket, bound by the goods and services
`descriptions in the relevant applications and registrations. For example, it must
`assume that “men’s shirts” covers all types of shirts sold through all conceivable
`trade charmels, even though they may be made of heavy duty wool and sold only
`in certain regions in mining company outlets as protective clothing for coal
`miners.
`.
`.
`.
`. Actual product and trade channel differences are highly relevant
`and often determinative in court proceedings. The Board should be able to
`H5
`consider them as well, and to modify a description, if it would avoid likelihood o
`confusion. The Board could thus delete ‘men’s shirt,’ and substitute ‘protective
`woolen shirts for coal miners,’ While deciding that confusion is unlikely with
`respect to a similar mark used on tee shirts sold at rock concerts.
`
`Id. at 2.
`
`[Emphasis added.]
`
`§e_e asp, TMEP § 309.03(d) discussing Section 18 and Eurostar.
`
`Through the subject oppositions, Virgin Health is merely seeking the same type of restriction the
`
`Board directly and through its “men’s shirt” example declared was permissible pursuant to
`
`Section 18.
`
`2.
`
`Section 18 Permits Oppositions Challenging Intent to Use Applications
`
`Section 18 permits oppositions challenging intent to use applications. “The authority of
`
`the Board under amended Section 18 was viewed by the drafters as a sort of failsafe provision
`
`that would allow an opposer to challenge an intent-to-use application with an excessively broad
`
`recitation of goods or services.” Eurostar at 7, FN 4.
`
`Section 18 “gives the Board flexibility
`
`when addressing the goods or services identified in an intent-to-use application. For example, if
`
`testimony about the intended use results in a factual determination that the goods or services
`
`specified in the application are stated too broadly, the Board would be permitted to modify the
`
`identification accordingly.” Senate Report No. 100-515, 1988 WL 170248, Trademark Law
`
`Revision Act of 1988.
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`LBB 7209
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`

`
`a.
`
`Virgin Health Pled The Requisite Elements to State a Claim Under
`Section 18 of the Lanham Act
`
`According to Eurostar, to state a cause of action, an opponent seeking “to restrict intent-
`
`to-use applications .
`
`.
`
`.[need only] pro[ve] that: (1) the entry of the proposed restriction to the
`
`goods or services will avoid a finding of likelihood of confusion and (2) that the applicant is not
`
`using its mark on those goods or services that will be effectively excluded from the application if
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`the proposed restriction is entered.” I_d_. *7, FN 4. Virgin Health alleged that “(l) if Applicant’s
`
`description of services was restricted such that it stated: “[m]edical evaluation services, namely,
`
`providing health assessments; advisory services relating to health; consultation relating to health
`
`care” in connection with “incentive and loyalty programs offered by employers to their
`
`employees to promote healthy lifestyle choices” that the parties’ respective services and markets
`
`would be sufficiently distinct so as to avoid a claim by Applicant that Opposer is infringing its
`
`federally registered mark,” and (2) “Virgin Health is not currently marketing to end consumers,
`
`and therefore end consumers, cannot without employer
`
`involvement participate in the
`
`Healthmiles program.” Opposition Complaint at 111] 14 and 12, respectively. As should be clear,
`
`Virgin Health pled both elements necessary to state a cause of action under Eurostar.
`
`3.
`
`Virgin Health Has Standing
`
`VEL incorrectly argues that Virgin Health does not have standing. A party properly
`
`alleges standing when “defendant has asserted a likelihood of confusion in another proceeding
`
`between the parties involving the same marks.”
`
`TMEP s. 309.03(b), citing Tonka Cogp. v.
`
`
`Tonka Tools Inc., 229 USPQ 857, 859 (TTAB 1986) (holding petitioner has standing to cancel
`
`registration that has been asserted, even defensively, in a civil action.) Here, Virgin Health pled
`
`7
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`LBB 7209
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`

`
`that VEL sued it in the Southern District of New York, dismissed the New York suit because
`
`New York lacked personal jurisdiction over Virgin, and that Virgin Health then sued VEL in
`
`Southern District of Florida seeking a declaration of no infringement. E Opposition Complaint
`
`at p. 2. These allegations are sufficient to establish Virgin Health’s standing.
`
`B.
`
`VEL’s Arguments, and the Cases Cited by VEL, Have All Either Been Rejected,
`
`Overruled by Statute or Are Off Point.
`
`1.
`
`Rejected Arguments
`
`Sections I and II of VEL’s argument (the only two sections) are entitled respectively: (1)
`
`“Opposer has not pleaded any statutory ground for opposing the ‘287 application,” and (2)
`
`“Opposer has not pleaded any statutory ground for opposing the ‘287 application.” VEL’s
`
`arguments toward this end are at odds with the rules and decisional authority applicable to claims
`
`under Section 18: “|a| claim in which the plaintiff seeks to restrict or modifl the goods or
`
`services in a particular manner, that is, by the addition of wording that identifies the goods or
`
`services with greater particularity in terms of type, use, channels of trade, etc., is in the nature of
`
`an equitable remedy under Section 18 and does not reguire pleading and proof of specific
`
`grounds for cancellation or opposition.” TBMP 309.03(d), citing Eurostar at 1271, FN3.
`
`
`In Eurostar the Board also rejected arguments that are strikingly similar to the arguments
`
`proffered by VEL in its Motion:
`
`Rejected Argument
`
`VEL’s Argument
`
`. is there any
`Registrant argued “there is no legal basis to “nowhere in the trademark act .
`.
` restrict its registration to certain channels of
`requirement that an applicant for a registration
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`

`
`
`
` list
`trade.” LCL at * 1.
`
`trade channels or marketing programs.”
`
`
`
`
`
` Defendant’s Motion at p. 7.
`
`
`
`“the amendments to Section 18 were never
`
`“The Board could not impose a non-statutory
`
`intended to make all registrations Vulnerable to
`
`requirement
`
`for
`
`‘specification’
`
`of
`
`trade
`
`attack because the owners of those registrations
`
`channels or classes of purchasers .
`
`.
`
`.without
`
`had not used their marks in every conceivable
`
`calling in question the Validity of innumerable
`
`Way. .
`
`. .” I_d.
`
`registrations
`
`issued over decades.”
`
`Defendant’s Motion at p. 8.
`
`M
`
`2.
`
`VEL’s Legion of Cases All Predate the 1988 Amendment to Section 18
`
`VEL’s Motion incorrectly asserts that “[t]he authority is legion that the question of
`
`registrability of an applicant's mark must be decided on the basis of the identification of goods
`
`set forth in the application regardless of what the record may reveal as to the particular nature of
`
`an applicant's goods, the particular channels of trade or the class of purchasers to which sales of
`
`the goods are directed” Octocom Sys., Inc. V. Houston Computer SerVs., Inc., 919 F.2d 937, 942
`
`(Fed. Cir. 1990) citing, Sguirtco V. Tomy Copp., 697 F.2d 1038, 1042, 216 USPQ 937, 940 (Fed.
`
`Cir. 1983); Tuxedo Monopoly, Inc. V. General Mills Fun Group, Inc., 648 F.2d 1335, 1337, 209
`
`USPQ 986, 988 (CCPA 1981); San Fernando Elec. Mfg. Co. V. JFD Elecs. Components Co§p.,
`
`565 F.2d 683, 684-85, 196 USPQ 1, 2 (CCPA 1977); Broderick & Bascom Rope Co. V.
`
`Goodyear Tire & Rubber C0,, 531 F.2d 1068, 1070, 189 USPQ 412, 413 (CCPA 1976);
`
`Pennwalt Copp. V. Center Laboratories, Inc., 524 F.2d 235, 236, 187 USPQ 599, 601 (CCPA
`9
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`LBB 7209
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`

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`1975); Paula Payne Prods. Co. V. Johnson Publishing Co., 473 F.2d 901, 902, 177 USPQ 76, 77
`
`(CCPA 1973); International Paper Co. V. Valley Paper Co., 468 F.2d 937, 938, 175 USPQ 704,
`
`705 (CCPA 1972); Vornado, Inc. V. Breuer Elec. Mfg. Co., 390 F.2d 724, 726, 156 USPQ 340,
`
`
`342 (CCPA 1968); Kalart Co. V. Camera-Mart
`Inc., 258 F.2d 956, 957, 119 USPQ 139, 140
`
`(CCPA 1958); and Miles Laboratories, Inc. V. Naturally Vitamin Supplements, Inc., 1 USPQ2d
`
`1445, 1450 (TTAB 1986) (amended 1987).
`
`To the extent that the legion of authority cited by Octocom holds differently than
`
`
`Eurostar
`
`it is clearly distinguishable insofar as these cases precede the 1988 Amendment to
`
`Section 18.
`
`Further,
`
`the Octocom court found on p. 943 that “OSI made no attempt to
`
`distinguish its situation from the voluminous precedent or even to argue that the precedent was
`
`wrong and should be overturned. OSI simply ignored it.” Accordingly, the 1988 amendments to
`
`Section 18 were not even raised in Octocom. Considering Eurostar’s unequivocal holding that,
`
`in an opposition initiated pursuant to Section 18, the TTAB may consider and then restrict an
`
`applicant or registrant’s identification of goods and services to the channels of distribution and
`
`classes of customers through which, and to which, the applicant or registrant is selling or
`
`marketing its goods or services, VEL’s reliance on Octocom, which did not even address the
`
`issue, is clearly misplaced.
`
`IV.
`
`CONCLUSION
`
`For the foregoing reasons, Virgin Health respectfully suggests that it should be clear to
`
`the Board that Virgin Health properly pled a claim for partial restriction or modification under
`
`LBB 7209
`
`10
`
`

`
`Section 18 of the Lanham Act, and that therefore this Board should deny VEL’s Motion for
`
`Judgment on the Pleadings.
`
`V.
`
`MOTION TO STAY THE OPPOSITION PROCEEDINGS
`
`Pursuant
`
`to TBMP Rule 510.02, Virgin Health moves for the entry of an order
`
`suspending Oppositions Nos. 91187612 and 91187614 pending the outcome of S.D. Fla. Case
`
`No. 08-22557-civ-Ungaro/Simonton.
`
`A.
`
`The Board Will Ordinarily Suspend a TTAB Proceeding Pending a Federal Court
`Case that May Bear on It
`
`Rule 510.02(a) states “whenever it comes to the attention of the Board that a party or
`
`parties to a case pending before it are involved in a civil action which may have a bearing on the
`
`Board case, proceedings before the Board may be suspended until final determination of the civil
`
`action.” Further, that “[o]rdinarily, the Board will suspend proceedings in the case before it if
`
`the final determination of the other proceedings will have a bearing on the issues before the
`
`Board.” I_c_L
`
`B.
`
`The Federal Court’s Analysis and Adjudication of Whether there is a Likelihood
`
`of Confusion Will Have a Bearing on the Instant Oppostions
`
`The Federal Court’s adjudication of whether the parties’ simultaneous use of the
`
`respective marks is likely to cause confusion will have a bearing on the instant opposition
`
`proceedings. Specifically, the federal court’s analysis and judgment concerning infringement
`
`will be directly applicable to the element under Section 18 requiring that Virgin Health prove
`
`that the proposed restriction to VEL’s identification of goods and services will avoid a finding of
`
`likelihood of confusion. E Other Telephone Co. v. Connecticut National Telephone Co., 181
`
`LBB 7209
`
`11
`
`

`
`USPQ 125 (TTAB 1974) (decision in civil action for infringement and unfair competition would
`
`have a bearing on claim before the Board.) Put another Way, if the federal court holds that
`
`infringement is occuring, Virgin Health’s proposed restriction would clearly not avoid a finding
`
`of likelihood of confusion.
`
`When, as here, a federal court suit involves allegations of infringement, suspending a
`
`TTAB proceeding is particularly appropriate since the Board does not have the power to
`
`adjudicate whether infringement is likely to occur outside context of whether a registration
`
`should issue or be restricted. E TBMP § 510.02(a), footnote 168. “The TTAB can only decide
`
`issues related to registration. It cannot adjudicate matters of infringement or unfair competition.”
`
`B&B Hardware, Inc. V. Hargis Industries, Inc., 2007 WL 2711647, *8 (E.D. Ark. 2007), citing
`
`Pure Gold, Inc. v. Syntex gU.S.A.g, Inc., 221 USPQ 151, 15.3 (TTAB 1983), aff’d, 793 F.2d 624
`
`(Fed. Cir. 1984).
`
`WHEREFORE, Opposer respectfully requests that the Board suspend Oppositions Nos.:
`
`91187612 and 91187614 pending the outcome of S.D. Fla. Case No. 08-22557-civ-
`
`Ungaro/Simonton.
`
`Respectfully submitted,
`
`LIPSCOMB, BRADY & BOBADILLA, PL
`
`2 Biscayne Blvd.
`PH Suite 3800
`
`Miami, FL 33131
`
`Phone: (786) 431-2228
`
`Facsimile: (7 6) 431-2229
`
`By:
`
`«
`
`,
`
`M. Keith Lipscomb
`Fla. Bar No. 429554
`
`12
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`LBB 7209
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`

`
`CERTIFICATE OF SERVICE
`
`A true and correct copy of the foregoing was served on App1icant’s counsel this L day
`3:gL;;4£r5¥
`, 2009, Via U.S. Mail addressed to James W. Dabney, One New York Plaza,
`of
`New York, New York 10004-1980.
`
`1 M
`
`. Keith Lipscomb
`
`LBB 7209
`
`13
`
`

`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF FLORIDA
`
`CASE NO. 08-225 57-CIV-UNGARO/SIMONTON
`
`VIRGIN HEALTH CORPORATION,
`a Florida corporation,
`
`Plaintiff,
`
`V.
`
`VIRGIN ENTERPRISES LIMITED,
`an English corporation,
`
`Defendant.
`
`UNVERIFIED DECLARATION OF ERICH COMPANIONI
`
`I, ERICH COMPANIONI DO HEREBY DECLARE:
`
`l.
`
`I am over the age of 18 and have personal knowledge of the facts stated herein.
`
`2. Since at least as early as November 2005, Virgin Health has been in the business of providing
`
`home health care services to patients that: (a) require regular, periodic or highly skilled health care
`
`services; and (b) are afflicted with substantial preexisting illnesses or conditions that are not
`
`immediately remediable,
`
`including:
`
`(1) nursing aid services,
`
`(2) nursing services.
`
`(3) physical
`
`therapist services, (4) occupational therapist services, (5) speech and hearing therapist services, and
`
`(6) social services critical for mental health such as companionship services for the elderly.
`
`3. FURTHER DECLARANT SAYETH NAUGHT.
`
`PURSUANT TO 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is
`
`true and correct.
`
`DATED: January _, 2009.
`
`ERICH COMPANIONI
`
`EXHIBIT “A”
`
`

`
`Ca‘€&glirQ8o£tv-2l27$15t7‘Md1te AB@.r1ument 20-2
`
`Entered on FLSD Docket 01/29/2009
`
`Pewizlooflzl
`
`
`
`ABOUT VIRGIN
`
`
`
`A research study has shown that the UK public vote Virgin
`as their most admired brand A sample of 2,000 adults
`were asked ‘which brands or companies can you think of
`that you really admire?" -- Virgin received more votes than
`any other brand with 23% of votes Sony came second
`with 21% of votes, whilst Tesco came third with 20%
`
`The results come from a nationally representative survey
`of2,000 adults conducted in February April 2007 by top
`$59376“ C°mP3nV HPI Resear'ch
`
`BACK TO HOME
`
`Virgin, a leading branded venture capital organisation, is one of the world's most
`recognised and respected brands Conceived in 1970 by Sir Richard Branson, the
`Wgin Group has gone on to grow very successful businesses in sectors ranging
`from mobile telephony, to transportation travel. financial services leisure. music.
`holidays, publishing and retailing
`
`(
`
`tfirgin hascreated morethan200 branded companiesworldwide, employing
`
`approximately 50,000 people, in 29 countries Revenues around the wand in 2006
`exceeded £10 billion (approx US$20 billion)
`We believe in making a difference in our customers‘ eyes. wrgin stands for value
`for money quality. innovation, fun and a sense of competitive challenge We
`deliver a quality service by empowering our employees and we facilitate and
`monitor customer feedback to continually improve the customers experience
`through innovation
`When we start a new venture, we base it on hard research and analysis Typically,
`we review the industry and put ourselves in the customers shoes to see what
`could make it better We ask fundamental questions: is this an opportunity for
`restructuring a market and creating competitive advantage? What are the
`competitors doing? is the customer confused or badiy served? is this an
`opportunity for building the Virgin brand? Can we add value? Will it interact with
`our other businesses? is there an appropriate trade-off between risk and reward?
`
`EXHIBIT “B”
`
`http://www.virgin.com/AboutVirgin/WhatWeAreAbout:/WhatWeAreAbout.aspx
`
`1/22/2009
`
`

`
`Medical Industry Overview, Medical Industry, Healthcare Industry, healthcare Industry 0... Page 2 of 4
`
`gr ‘xi’
`
`Medical Equip. &
`Supplies _-3'
`10,000 Healthcare
`Products In Stock Top
`Brands at Wholesale
`Prices
`www specialtyt/ledicalsupply corr
`
`Medical Billing &
`Coding
`Get Trained For a Career
`Online in Medical Billing
`& Ins, Coding
`www Herzing edu/Medical--Billing
`
`Medical Device
`, Database
`+1oo,ooo Medical Device
`Profiles +20,000 Medical
`Device Companies
`www Biopharmlnsight com
`
`Medicaldeslgmcom
`Where medical device
`engineers share ideas
`and seek solutions
`www medicaldesign com
`
`Tier1 Medical Device
`
`mF
`
`DAI lSO 13485 Plants
`Worldwide PCB, Cables,
`Enclosures, Systems
`www sanmina«sci com
`
`is
`
`‘C
`
`Medical Product Design
`Complete Medical
`Product Design through
`Manufacturing FDA Reg
`‘sV\«VW crrclemed HEN
`
`Short-Term Heath Plans
`Assurance offers a variety
`of Short Term Health
`Plans to fit your Needs
`WWW assuranthealthcenlral corn
`
`Industry Overview
`Find industry Research
`Your Business Solution
`i Business com
`www business corn
`
`Medical Device Design
`Complete Medical Device
`Development, ISO 13485
`www KeyTechlr\c com
`
`Medical Supplies .-A’
`Shop over 10,000
`wholesale medical
`supplies, Orders over $75
`ship free
`www SpeciallyMEDSuppiies corn
`
`EXHIBET “C”
`
`2/2/2009
`
`exhibition,
`
`manufacturers, wholesalers & dealers together
`
`SlZE OF THE INDUSTRY
`The United States of America has one of the largest medical and healthcare industries in the world followed by
`Switzerland and Germany, The USA's medical industry comprises of more than 750,000 physicians and 5 200 hospitals
`USA witnesses approximately 3 8 million inpatient visits and 20 million outpatients visit on a daily basis Furthermore, the
`United States of America has the largest workforce i e one in every 11 US residents employed in the heaithcare business
`
`The Global prescription drug market was $550 billion in the year 2006 Also the total health care expenditures across the
`world were $4 5 trillion last year Of which US solely account for 3 2 2 trillion, S 2 trillion in OECD countries and remaining
`5 0 3 in other countries of the world
`
`MAJOR SEGMENTS OF THE lNDUSTRY
`The global medical industry is highly fragmented. comprising of various ancillary sectors namely medical equipment and
`supplies, pharmaceutical, heaithcare services, biotechnology and alternative medicines sectors
`
`. Medical Equipment and Supplies:
`Consists of various establishments or units engaged in designing, manufacturing, selling and distributing of surgical
`and medical instruments ophthalmic lab apparatus electro medical, dental. irradiation, surgical appliances and
`supplies
`
`SHARE OF MEDICAL EQUIPMENT 8» SUPPLIES IN 2005
`
`Opltllmlmic
`‘}‘.‘r;
`
`i,.ebl.\.pparazus
`o
`
`Klc-cll‘(§!I‘a.‘(.ll\‘2tl
`8‘!-‘is
`
`WE);
`4'94:
`
`S|.1Y‘:!iC'a1l and Medical
`tiistrummts
`25%
`
`
`
`Surgical Applio:rces\\
`and Supplies
`23%
`
`.
`
`lmxfimm
`W
`
`,-_,..,../”';’mfl
`I 04/4.
`
`. Pharmaceutical industry
`Comprises of several establishments involved in developing, researching, marketing and distributing drugs or
`medicines Globally, the market share of pharmaceutical industry is US $340 billion The global pharmaceutical
`sales account for US$ 602 billion, with an annual growth rate of 7%,
`in the year 2006, the global pharmaceutical
`exports totaled US 3 271 9 billion having an annual growth rate of 10%
`
`Share of global market (sales)‘
`
` --
`
`Rust ofths world
`210,;
`
`'
`Australia
`.~ 1%.
`
`. Healthcare Services industry
`it includes various establishments dealing in different type of services like testing, outsourcing transcription, quality
`assurance, validation compliance. chemical analysis, and other types of services The global market share of
`biotechnology services industry is worth US $ 50 billion which is soon expected to witness a hike in coming years
`Presently pharmaceutical testing service industry values to US $ 5 9 billion. which is predicted to reach US $ 9 5
`billion by the end of 2009 Microbiological testing service industry accounts for US S 2 4 billion Globally, the
`medical outsourcing services industry accounts for approximately US S 200 billion
`
`. Biotechnology industry
`it is one of the most research--intensive segments of the global healthcare industry Biotechnology industry is
`
`http://www.themedica.com/industry—oVerView.htm1
`
`

`
`V1rgin HeaIthMi1es
`
`http://www yirginhealthmiles..com/AboutUs/aboutV1I'ginHea1thMiles iaspx
`
`HOME
`
`CONTACT US
`
`FAQ
`
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`
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`
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`
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`CONTACT A SALES REP
`
`HOW HEALTHMILES WORKS
`
`Virgin HealthMiles is a member of the world renowned Virgin Group headed by
`Sir Richard Branson
`
`Wgin HealthMiles (formerly known as \firgin Life Care), part of the world-renowned \/irgin Group,
`developing innovative programs that empower Americans to take greater control of their health and fitness
`
`is committed to
`
`The flagship product -— HealthMiles — is a first-of—its—kind health rewards program that
`motivates and lncentivizes consumers to engage in the process of getting and staying
`healthier by being more active The program is offered by insurers, employers and other
`network partners, such as health clubs, in an effort to motivate Americans to live more active
`lives — and ultimately lower health care costs for everyone
`
`
`
`3
`
`Related Links:
`
`Learn more about getting
`active, tools to track your
`activity, and the rewards and
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`benefits you get as a member‘ THE HEALTHMILES PROGRAM
`
`© VIRGIN HEALTHMILES, INC ,2009 ALL RIGHTS RESERVED
`
`PRIVACY POLICY I TERMS OF USE
`
`1 of1
`
`2/3/2009 10:22 AM
`
`EXHIBIT “D”
`
`

`
`. Case 1:08-cv-22557—UU Document 1
`
`Entered on FLSD Docket 09/16/2008
`
`Page 14 of 32
`
`8-Iol. Funk, Hunts, mama Jnaulml up
`
`am Now Van: Plan
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`E
`
`Fcmaudo do la Cruz, J12, M.D.
`Pmuidant
`
`Virgin Health Corp.
`7300 Coiparatu Canter Dzive
`Miami, FL 33125
`
`
`
`Dirwte 212.859.8583
`Facsimile: 212.859.4000
`victoriuluyle @fiiedfi'ank.mm
`
`Dcccmbe:-5,2007
`
`
`
`Dear Dr. Cruz:
`
`This omen remnant: Virgin Entuzprisos Ltd. ("V'_BL").
`Ilhna come to our uttantionthatyuuhavaadaptud the aampmyname V’
`'
`I-Ida
`Corp., andmm rasintsxad me domainname. vman~zmw.m.Nm-, with a v12wEL§?£mn;h
`VJR(}JN-branded ham: cm: servinen.
`
`AI Plomba advisedthntvmamu aregintcredundum1:andservicsemn¢Ico1'VELand
`has kmghaan ungdinassociation with divans good: and service: in the Unitod Statci. VEUI
`-
`Hummus, Virgin Heillihmilel, Inc. ("VIE"). curmnly offer! VIRGIN-htmdod sezviccl dcxigundf
`ta rumrd individual! for engaging in notivitytn iznpruvc their health as ducribed It
`
`'
`
`Onbelu.lfofVBL,wezaquuI thn1ycuoonfinntouathatyouv5i1lrefi'95.n1i'on1 Inyusu
`ofV1RGI.'N'u all nrpurt ofauybuainosa nlma. tndsmark, auanrice mark uaadin auooiation
`with basil}: oar: amricos. Wu fhnlmrmquest dutyoupuncuxatheimmerlinte traunfeno VEL of
`tha domninnima VJRGn‘II'IBAL’I"I-INBT and my other domain mun: controlled by you this
`comprisca the word VIRGIN.
`
`Wu are hopofisl that this rustic: can be rcéoivezfon an amicable basis and without rasoxt
`to litigafion.
`
`Very truly yours.
`
`H005
`
`Iwfim - wumm DC -um: v FIVII - FMHM
`ma, f